The changing face of the Supreme Court of Canada could threaten a HIV-nondisclosure case making its way to the top court.

 

Last month, the Supreme Court agreed to hear an HIV non-disclosure case for the first time in nearly a decade. The case, known as Mabior, centres on a poz man who had sex with five women; they used condoms and the man was on antiretroviral drugs, meaning he likely had a low viral load. He didn’t disclose his health status before the encounters.

 

Amanda Sansregret, Mabior’s lawyer, says she is concerned about the composition of the Supreme Court in the era of Stephen Harper. Harper has already appointed two of the country’s nine Supreme Court judges, and two more announced retirement shortly after the May 2 election.

 

“We have a Conservative majority, and I’m wondering what the seats are going to look like. I’m sure the Crown isn’t too concerned. The courts tend to go with the views of the federal government. With the Conservative majority, they’re likely not going to be appointing the most open-minded court. That may well dictate how this case works. The attorney general will say, ‘You never know unless you check five minutes before you have sex,’ and, “Any risk is a risk.’ I’m going to argue AIDS is no longer a death sentence and most people who comply with their ART regimen die of other things,” says Sansregret.

 

The case involves a Sudanese immigrant living in Winnipeg. He was sentenced to 14 years in jail for six counts of aggravated sexual assault in 2006. Four of those convictions were overturned on appeal last fall after a Manitoba Superior Court judge heard medical evidence stating the accused wore a condom, was on ART and therefore risk of exposure was low and there was a “high probability” he wasn't infectious.

 

The HIV/AIDS Legal Network has applied for intervenor status.

 

Cecile Kazatchkine, HIV/AIDS Legal Network spokesperson, points out that HIV prevention science has evolved rapidly since the last time the Supremes heard a nondisclosure case.

 

Take the issue of “significant risk.” In Mabior, the Manitoba Court of Appeal decided that when a condom is carefully used there is no significant risk of transmission. Other courts — including the lower court in Mabior — have ruled differently. Since significant risk has not been clearly defined by the Supremes, HIV-positive people cannot determine with any certainty what behaviour might result in prosecution.

 

“In several cases, courts have considered that the risk of transmission is sufficiently reduced by the use of a condom, so the risk cannot be considered as ‘significant.’ But some people have been prosecuted and convicted even though a condom was used or there was a doubt as to whether sex was unprotected or not,” says Kazatchkine. “What constitutes a significant risk of transmission for the purpose of the criminal law has not been clearly defined by the courts. As a result, the law remains unclear and has been applied inconsistently across Canada.”

 

Another HIV-nondisclosure case may reach the Supreme Court of Canada later this year. The Quebec case, known as DC, centres on a straight couple who had a single unprotected sexual encounter early in their relationship. The application for leave to appeal is currently pending, but if this case is heard by the Supreme Court, the two cases could proceed in Tandem.

 

Elizabeth Thomson, from the Office of the Attorney General of Manitoba, could not be reached in time for comment.