Canada's top court is taking on a high-stakes debate on whether
people with HIV are obligated to tell sexual partners about the
The Supreme Court began hearing arguments Wednesday over whether
non-disclosure should be a potential crime, even in cases where
transmission is unlikely.
Under current law, it's possible for someone with HIV to be
criminally charged if they don't tell a sexual partner about the virus.
If an individual has HIV and doesn't tell a partner, they could be found guilty of aggravated assault or even attempted murder.
Justices will hear two separate cases from Manitoba and Quebec, both
of which are appeals from HIV-positive individuals who were once charged
for not disclosing the illness.
Critics argue that the existing law, enacted in 1998, needs to be
updated because science has advanced treatment methods since then.
Lawyer Stephanie Claivaz-Loranger said she and other critics aren't
asking the government to be more lenient to those who transfer HIV on
"I'm not saying in these cases we should not use the criminal law,"
she told CTV Montreal. "But this is not what's been going on here in
According to the Canadian HIV/Aids Legal Network, of the more than
130 people with HIV who have faced criminal charges for non-disclosure,
more than 65 have been convicted. So far, 55 have been sentenced to
Complicating the issue, rulings have been inconsistent. Some of those
charged have been acquitted because they used a condom, whereas others
have been convicted.
Prosecutors take an absolutist point of view and argue that sexual
partners must always be told about HIV, regardless of the risk of
CTV's Legal Analyst Steven Skurka said a judge must weigh several
details before convicting an HIV-positive individual for non-disclosure.
"Are you posing a significant risk of causing serious bodily harm?
How serious is the disease? At what level? What precautions have you
taken?" he told CTV News Channel.
The United Nations recommends criminal action should only be taken if
there is evidence of malicious intent and if HIV is actually
HIV education advocate Jordan Arseneault says the broadness of
Canada's current law runs the risk of alienating those with HIV who are
taking every step to treat the condition.
"You prevent HIV by being tested, by being honest with your partner
and getting treatment. The criminalization of non-disclosure makes all
that harder," he told CTV Montreal.
Margaret Somerville, director at the McGill Centre for Medicine,
Ethics and Law, said she wonders if prosecutors will consider disclosure
rules in other scenarios. She points to the rule that requires doctors
to tell patients about the risks of a surgery.
"Generally speaking, if there's any risk of death at all, no matter
how small you've got to disclose it," she told CTV News Channel on
"I'm wondering if the Supreme Court might take that as some sort of precedent."
The Supreme Court will hear the case of Clato Mabior, a Winnipeg
immigrant who was once convicted of six counts of aggravated sexual
assault for not disclosing his illness to numerous partners. He was
sentenced to 14 years in prison.
However, four of those convictions were overturned because a court
found not everyone who had sex with Mabior were at significant risk. He
had used condoms and was undergoing antiretroviral therapy.
Another case the court will hear is that of a Quebec woman who did
not tell her partner about her illness the first time they had sex. The
two separated after a four-year relationship. The man then went to
police and accused her of non-disclosure.
The woman was found guilty of aggravated assault and sexual assault but the convictions were eventually overturned.
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