The Supreme Court of Canada in Ottawa.Bill Grimshaw/The Globe and Mail
A pair of Supreme Court of Canada decisions that maintain strict criminal sanctions against those who fail to inform potential sex partners that they have HIV has infuriated advocates for infected individuals.
The court said that medical advances have not eliminated the need to disclose HIV status. The human immunodeficiency virus remains a devastating condition that potential partners have a right to know about before deciding whether to have sex, it said.
Under a new legal standard crafted by the court, those who fail to disclose the virus are liable to be convicted for aggravated sexual assault unless the amount in their system has been substantially reduced by medication and they use a condom during sex.
A coalition of advocates for those with HIV-AIDS that made legal arguments in the cases were livid after the rulings, saying the court has added to the cruel stigma of HIV.
The decisions "are a cold endorsement of AIDS-phobia," the coalition said in a statement. "They will stand as an impediment to public health and prevention, and add even more fuel to stigma, misinformation and fear."
They asserted that people will avoid being tested in case learning that they have HIV triggers a requirement to tell potential sex partners.
The intervenors had hoped to greatly reduce the number of infected people who could be subject to criminal charges in a legal regime that is one of the strictest in the world, arguing that the use of a condom alone should prevent an individual from being charged.
But Chief Justice Beverley McLachlin, writing for the court, contended that legal trends favour letting people give informed consent to sex acts that could threaten their health.
She said that sex partners are increasingly perceived as autonomous, equal and free individuals who have a right to refuse to engage in sexual acts without any hint of deception. "Fraud is fraud, whether induced by blatant lies or sly deceit," the chief justice said.
"It is enough to note that HIV is indisputably serious and life-threatening," she said. "Although it can be controlled by medication, HIV remains an incurable chronic infection that if untreated, can result in death."
Chief Justice McLachlin said the new legal standard will permit those with HIV to know clearly what is required of them.
The court also restored three aggravated sexual assault convictions – overturned earlier on appeal – against a Winnipeg man who had sex with four women without a condom and without disclosing his HIV status.
None of the women contracted the virus.
The key wording in Friday's decisions stated that to obtain a conviction for aggravated sexual assault, the Crown must show that a person failed to disclose his or her HIV status despite "a realistic possibility" of transmission.
The previous legal standard required the Crown to show lack of disclosure in a situation involving "a significant risk of bodily harm."
In their statement, the intervenors said the court "blatantly ignores solid science and opens the door to convictions for non-disclosure even where the risk of transmission is negligible, approaching zero."
They said it also militates against international trends and emerging views in the medical field.
"People living with HIV need more health and social supports; they don't need the constant threat of criminal accusations and possible imprisonment hanging over their heads," it said.