Canada's top court is hearing the case of two HIV-positive people who did not disclose their medical condition to their sexual partners.
Lawyers for Clato Mabior are appearing before the Supreme Court of Canada on Wednesday to argue that Canadian law criminalizes carriers of HIV — the virus that causes AIDS — and does not acknowledge variations in transmission levels.
CBC's Maureen Brosnahan said a core issue facing the Supreme Court judges is how to decide what is considered significant risk of infection. That was not defined in the 1998 decision that said it was a crime to hide HIV-positive status from a sexual partner.
"Back then, HIV was still considered pretty much a death sentence, and now since then, with new medications … [HIV carriers] can actually lower what's called their viral load, so the chances of them transmitting the disease really becomes really almost theoretical," Brosnahan said.
The court has so far heard from Manitoba Crown attorney Elizabeth Thomson, who has taken "a very hard line" on the issue, she said.
"Her view is regardless of science, regardless of viral loads, regardless of risk, she says if you've got HIV, it's a lifelong chronic illness, and she believes there should be disclosure regardless," Brosnahan said.
"Needless to say, the judges are challenging her."
Winnipeg-based Mabior was sentenced to prison in 2008 for 14 years after he was found guilty of having unprotected sex with four females and protected sex with two others, including a 12-year-old girl.
Mabior's convictions hinged on his failure to inform his sexual partners that he has HIV. Four of the convictions were later overturned on appeal.
None of his partners were infected with HIV as a result of their contact with him.
At the time of Mabior's appeal, court heard that medical tests showed he had a low level of infection between 2002 and 2004, the period in which the sexual encounters took place.
Mabior's lawyers argued that his risk of transmitting HIV to his partners was therefore low.
However, the Crown argued that Mabior did not ever disclose his HIV status to his sexual partners, therefore denying them the right to consent or refuse to engage in sexual activity with him.
The Supreme Court will also hear arguments from lawyers representing a Quebec woman who had unprotected sex with her former spouse without first informing him that she was HIV-positive.
A publication ban prevents naming the woman, who is referred to in Supreme Court documents only as "D.C."
The woman was found guilty of sexual assault and aggravated assault, but that conviction was later overturned on the basis that her viral load was undetectable during the period that the charges covered.
A number of organizations will appear at the Supreme Court hearing, including the Canadian HIV/AIDS Legal Network, the British Columbia Civil Liberties Association, L'institut national de santé publique du Québec, and the Criminal Lawyers' Association of Ontario.
The court's ruling may not benefit Mabior, a Sudanese refugee, as he is set to be deported to Sudan later this month.
Mabior has been awaiting deportation for over a year since he completed his prison sentence. Immigration officials have been keeping him in Canada to date due to political strife in Sudan.
Tim McCaskell, a Toronto HIV/AIDS activist, warned that a decision from the Supreme Court requiring that all infected individuals disclose their condition could lead to greater risk of HIV spreading.
He reasoned that some people living with the virus may not seek diagnosis out of fear of being prosecuted in the future for knowingly carrying it.
"I would be very afraid for the health of Canadians, because I certainly think that would discourage testing," he told CBC News on Wednesday. "If people don't test, they don't get treated. If they don't get treated, the viral load increases, and then they become very infectious, and then they can't tell someone that they're positive or negative because then they don't know."
David Eby, president of the Canadian HIV/AIDS Legal Network, worries that the creation of a new type of offence under aggravated sexual assault increases the stigma against people with HIV.
The lack of clear guidelines on the laws across Canada is also problematic, he said, noting that the courts have not considered the lowered risk of transmission when a person uses a condom or takes antiretroviral drugs.
"Courts have interpreted whether or not someone is wearing a condom as potentially reducing the level below significant risk, but people have also been convicted in situations where they've used a condom," Eby told CBC News from Vancouver.
He added that criminalizing non-disclosure of HIV status won't necessarily provide the public with any additional protection.
"It may in fact provide the public with a false sense of security," Eby argued, because people may have unprotected sex, presuming their partner must be HIV negative because of the disclosure laws.
An estimated 75,000 people in Canada were living with HIV at the end of 2009, according to the Centre for Infectious Disease Prevention and Control.
Since the 1998 Supreme Court ruling, more than 130 people have been charged for not disclosing their HIV-positive status to their sexual partners, Brosnahan reported.
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