October 5, 2012
Not disclosing HIV no longer automatically a crime: Top court
By Brigitte Pellerin, Parliamentary Bureau
OTTAWA - HIV-positive people who take proper medication and use condoms do not need to disclose their status to sex partners because there is no realistic possibility of transmission, the Supreme Court ruled unanimously Friday in a pair of cases.
The highly anticipated rulings update a 1998 Supreme Court decision that said a person must disclose a HIV-positive status before engaging in sexual contact that carries a significant risk of harm or face charges of aggravated sexual assault, which carries a maximum penalty of life in prison.
While acknowledging the issue is complex, the top court ruled that, "as a general matter, a realistic possibility of transmission of HIV is negated if (i) the accused's viral load at the time of sexual relations was low, and (ii) condom protection was used."
Supporters of those living with HIV had argued an update was long overdue to reflect advances in drug therapy that can make the transmission risk nearly impossible.
But in a statement Friday, The Canadian HIV/AIDS Legal Network said it is unhappy the court's ruling continues to require that HIV-positive people lower their viral count to avoid prosecution for non-disclosure.
It called the ruling "unjust" and a "major step backwards."
"We are shocked and dismayed that even the responsible use of a condom does not protect a person living with HIV from rampant prosecution."
The Network and several other organizations were interveners in the cases.