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Some HIV carriers not legally bound to disclose condition to partners

By: The Canadian Press

Friday, Oct. 5, 2012 at 11:24 AM | Comments: 0

Clato Mabior in a 2006 photo.

OTTAWA — The Supreme Court of Canada has absolved HIV carriers of the legal obligation to inform sex partners about their condition as long as they have a low level of the virus and wear a condom.

In a major 9-0 ruling Friday, the high court specified those two key conditions, clarifying the rules on whether it is a crime for people with extremely low levels of HIV to withhold their condition from their sex partners.

The court said it was reflecting the medical advances in treating the virus that causes AIDS since it first ruled on the issue in 1998 and left open the possibility of adapting to future changes in science in medicine.

The Supreme Court ruled on two separate cases, from Manitoba — a former Brandon resident — and Quebec, updating its landmark 1998 ruling on the subject.

The court ruled 14 years ago that people with HIV must inform their sex partners of their condition, or face a charge of aggravated sexual assault, which carries a maximum life sentence.

Now, that duty to disclose has been removed as a long as the HIV carrier has a "low load" of the virus and wears a condom.

"On the evidence before us, a realistic possibility of transmission is negated by evidence that the accused’s viral load was low at the time of intercourse and that condom protection was used," Chief Justice Beverley McLachlin wrote on behalf of the court.

"However, the general proposition that a low viral load combined with condom use negates a realistic possibility of transmission of HIV does not preclude the common law from adapting to future advances in treatment and to circumstances where risk factors other than those considered in the present case are at play."

The ruling was a partial victory for HIV/AIDS activists who have argued that the 1998 ruling sowed confusion and was applied unevenly. They wanted the decision struck down, but argued that, in the alternative, the court should at least refine that ruling to reflect new medical advances.

Prosecutors from both provinces argued that HIV carriers have a duty to inform their partners regardless of the risk, so they can make an informed decision.

The Supreme Court rejected the argument that there should be a blanket law requiring people with HIV to disclose their condition under every circumstance.

The court did not set an actual level for an acceptably low viral load, but offered a description, based on the evidence of the case.

The court was considering two cases, one of which involved Clato Mabior of Winnipeg, who was diagnosed with HIV in January 2004. He had sex with nine different women between February 2004 and December 2005 without telling them he was HIV positive.

Mabior lived in Brandon for a year beginning in November of 2003. He said he was single for the first five to six months he was in Brandon and he had sex with at least two women he met at the now-defunct Gravity Nightclub on Fifth Street, when he may have been infected but didn't yet know.

He had a steady girlfriend during the later months of his stay in Brandon.

None of the women contracted the disease.

After Mabior was partly successful before Manitoba’s appeal court, the Supreme Court was left to rule on four remaining convictions of aggravated sexual assault.

He was found to have low viral load with three of the complainants but did not use a condom. Those convictions were upheld.

But with one other woman, the justices were satisfied that he had used a condom and because he met the second factor — a low viral load — his conviction on that count was set aside.

For Mabior, the ruling is academic — he was deported to South Sudan in February.

» With Brandon Sun files

» FOR THE FULL STORY, SEE SATURDAY'S BRANDON SUN

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