Canadian Supreme Court questions defence in landmark HIV case

[Inception]

From xtra:

http://www.xtra.ca/public/National/UPDATE_Supreme_Court_questions_defence_in_landmark_HIV_case-11493.aspx

UPDATE: Supreme Court questions defence in landmark HIV case

BREAKING NEWS / Top judges grill government lawyers as court reviews rules in criminalization cases

Marcus McCann / National / Wednesday, February 08, 2012

Two government lawyers got an earful from the Supreme Court of Canada Feb 8, as arguments got underway in Ottawa in two cases involving HIV nondisclosure.

Judges pressed lawyers representing the Quebec and Manitoba attorney generals' offices over their apparent disregard for scientific evidence with respect to the evolution of HIV treatment and viral load over the last 15 years.

Chief Justice Beverley McLachlin also suggested that the test for criminal responsibility for nondisclosure, as it's formulated, may be too vague to be useful.

“How is that person supposed to know if they are committing a criminal act? If the answer is, 'They can't know for sure,' then surely the crime isn't really a crime. It would violate one of the fundamental principles of criminal law,” McLachlin said.

“If you set the terms as broad as ‘You need to know what you're getting yourself into,’ she added, “you'd be vitiating consent in thousands of consents every day . . . or night.”

The court is reviewing the rules set out in its 1998 Cuerrier decision, which required that HIV-positive people disclose their status to sexual partners if there is a “significant risk of serious bodily harm.”

The attorneys general argued that all risk of infection is a “significant risk” and that contracting HIV/AIDS is a “serious bodily harm.”

Elizabeth Thomson, a lawyer representing the attorney general of Manitoba, was interrupted by Justice Rosalie Abella within the first five minutes of the hearing. Increasingly pointed questions effectively derailed Thomson's oral argument.

Judges openly worried that the attorney general's position, if adopted, would result in an absolute liability offence. Justice Abella called Manitoba's position one with “no nuance, no gradations.”

Justice Michael Moldaver said the justices were looking for a clear, intelligible test where HIV-positive people would not have to disclose in every circumstance. Moldaver twice referred to a trial decision in which a judge ruled that a poz person would not have a duty to disclose if he had both a low viral load and used a condom. Moldaver referred to risk of transmission in those circumstances as “nonexistent or virtually nonexistent.”

Chief Justice McLachlin suggested that in cases where the risk does not materialize — where no partner becomes HIV-positive — there may not be any crime at all.

The judges' comments are in no way binding. Often, the written judgments vary significantly from what is said in court.

The cases, R v Mabior and R v DC, both involve HIV-nondisclosure where their partners did not become HIV-positive. Condom use and level of infectiousness — as measured by the number of copies of the virus in the bloodstream, referred to as viral load — were issues in both trials.

The identity of the victims in both cases are covered by a publication ban.

Amanda Sansregret, a legal aid lawyer from Manitoba who represents one of the two accused, gave a lively defence of her client. She argued that either condom use or low viral load ought to suffice as a defence. It's a sentiment that echoes the submissions from AIDS service organizations made in advance of the hearing.

HIV-positive partners who use condoms or have low viral loads simply don't pose a high risk to their partners, she said.

“People have been lying in order to secure sexual consent from time immemorial,” Sansregret said. “If you really want to protect yourself, you should use a condom . . . it strikes me as the safest approach.

“If you're looking for a complete absence of risk, with all respect, abstinence is your answer.”

The court asked equally pointed questions of Sansregret and another defence lawyer, Christian Desrosiers.

Abella asked whether access to post-exposure prophylactics changes the math – noting that a partner of someone who doesn't know his or her partner is HIV-positive will not know when it might be appropriate to use that kind of medication, thereby increasing his or her risk. She also asked about partners who may be especially vulnerable to HIV transmission, for instance if they have coinfections. She said a poz partner may know the risk he poses in regular circumstances but may not be aware of the extra vulnerability of his partner.

There was a single 10-minute presentation from a coalition of AIDS groups. Lead counsel Jonathan Shime described the current test as “an appropriate safeguard.”

“We don't need to criminalize everyone in order to have a predictable” law of HIV, he says. “Use of a condom means there is . . . intention. There is no recklessness.”

The BC Civil Liberties Association and the Criminal Lawyers' Association also presented briefs.

Aside from closing comments, Quebec Public Health had the last word. Lucie Joncas told the court that public health is not helped by the overuse of the criminal law in this area. She gave two reasons: firstly, that the bulk of new infections come from people who do not yet know that they are HIV-positive, and secondly, that consistent use of condoms — rather than relying on partners' representations of their HIV status — is the best way to protect the health of Canadians.

[HungLatinDom]

Wow, finally some sense.

I've lost track of the times that stupid fuckers ask AFTER I have bred them my status. Or they act surprised when I tell them BEFORE fucking that I am poz. I guess we should all die and leave space for the nice and hot, pure and clean gay guys

[rawTOP]

It's a step in the right direction, but there's no sense of holding the negative partner responsible for their own health. Why shouldn't they be required to ask the question? Why is it the poz partner's responsibility?

[toxiclover]

There is no clear cut victim here so there is no crime.

[GermanFucker]

It's a step in the right direction, but there's no sense of holding the negative partner responsible for their own health. Why shouldn't they be required to ask the question?

Simple:

1.) Law is mainly concerned with interactions between different people. If you rape a guy, that's a crime. If you rape your own ass with a dildo, who the fuck should care, it's your business. You can only hold someone responsible for his health insofar as it concerns others.

2.) But because negs cannot infect someone else, it doesn't concern anyone else: There is no potential for harm.

[rawTOP]

2.) But because negs cannot infect someone else, it doesn't concern anyone else: There is no potential for harm.

You totally missed my point. Why is the neg guy not responsible? He's knowingly putting himself at risk by having high-risk sex. If he's not responsible for his own health, who is?

[HungLatinDom]

Rape is not consensual sex, so I think the analogy is invalid

[calrockxxx]

Is it rape when it's consensual? I don't think so. Is it rape just because someone is poz? That doesn't make any logical sense.

Even before I was poz I always equated barebacking with HIV. I didn't always disclose that I was neg, and that pissed off more than a couple of poz guys I had sex with. They didn't want to feel responsible for passing it on. So if a guy asks you to poz him and he gets HIV, can he then sue you in court in Canada and win? Is there anyway to ever prove sex is consensual? No, it' just he said/(s)he said.

Bareback = Poz, and the courts need to recognize that the risk of transmission falls on the person who is neg when he willing participates in bareback sex.

[gaynudist61]

It is my responsibility to ask a top if he  is poz