[Update]Canada: Ontario Court of Appeal considers case of man found guilty of aggravated sexual assault for alleged HIV exposure despite using condoms

February 12, 2020

Published on CBC News on February 20, 2020

Criminal appeal could set a new precedent for HIV patients who use condoms during sex

A 2012 Supreme Court ruling said HIV patients are not always obligated to disclose their condition

A group of HIV/AIDS organizations is hoping to establish a new legal precedent that would keep people with HIV from facing criminal charges if they use a condom during sex.

The group will make its argument Wednesday at an ongoing case at the Ontario Court of Appeal in Toronto. 

The appeal was launched by a man who was convicted of aggravated sexual assault in 2017 after three complainants said he did not disclose his HIV diagnosis before their sexual encounters.

The man, identified by the initials N.G., used a condom and did not transmit the virus to any of them. He was sentenced to 42 months in prison, short of the life sentence possible after an aggravated sexual assault conviction.

“There should not have been a prosecution. The law should not be criminalizing people who use condoms,” said Richard Elliott, executive director of Canadian HIV/AIDS Legal Network, one of three groups intervening in the appeal.

“We know that the risk of transmission in such circumstances is zero.”

The HIV & AIDS Legal Clinic Ontario and the Coalition des organismes communautaires québécois de lutte contre le sida (COCQ-SIDA) are also involved.

The groups say more than 200 people in Canada have been unfairly prosecuted for non-disclosure of their HIV status.

N.G. was found guilty after a judge determined he was obligated to disclose his condition to his partners.

But the judge’s ruling, Elliott argues, was based on an incorrect reading of the law, which allows for people with HIV to not disclose their condition to sexual partners in certain cases.

The Supreme Court of Canada ruled in 2012 that HIV patients were only obligated to disclose their condition if there was a “realistic possibility of transmission.” The court also acknowledged that advances in treatment of HIV may narrow the circumstances where there is a duty to disclose.

In December 2017, the Department of Justice said that criminal law should “generally not apply” to people with HIV if they have small amounts of the virus, or if they properly use a condom during sex.

However, the judge ruled N.G.’s condom use did not meet the threshold for non-disclosure, since he was not being treated for HIV and was carrying higher levels of the virus than is considered safe.

Elliott called that a “highly discriminatory application of criminal law” that does not account for the latest scientific data on HIV transmission and condoms.

“That’s why I think this case is so important, because it’s going to squarely revisit this question of whether condoms actually will suffice to preclude a criminal conviction,” he said.

The ruling could set a precedent for other HIV non-disclosure cases across Canada, he said.

‘Fear and hysteria’ 

Mark Tyndall, an HIV expert and professor at the University of British Columbia’s public health department, said condoms are “100 per cent” effective at preventing the transmission of HIV.

He has served as an expert witness in several criminal cases involving non-disclosure, in which he said outdated fears about the disease have led to needlessly harsh punishments.

“We should have put this scientifically to rest decades ago,” Tyndall said. “To change the fear and hysteria around HIV takes decades, we’re hopefully at the tail end of this.”

Many HIV experts, including Tyndall, say the disease should be treated as a public health, rather than criminal, issue, especially in cases when the person with HIV took precautions to protect their sexual partners.

The threat of criminal prosecution “creates a context of fear” among people with HIV, says Alex McClelland, which may prevent some from disclosing their condition to partners and discourage others from being tested.

McClelland contracted HIV more than 20 years ago from a partner who did not disclose their condition. He now studies the criminal justice system as a postdoctoral fellow at the University of Ottawa.

“Me going to the police about that would not solve anything, would not make anything better for me,” he told CBC Toronto. 


 

Source: Sootoday, Published on January 21, 2019

Man convicted of not disclosing HIV status released pending appeal

 He was sentenced to 3.5 years in November.

The province’s top court has released XX from custody pending the Sault Ste. Marie man’s appeal of his aggravated sexual assault convictions.

Superior Court Justice Edward Gareau sentenced him to 3.5 years in prison on Nov. 19 for failing to disclose his HIV status to three sexual partners.

The Ontario Court of Appeal granted the 28-year-old bail last month as he awaits a hearing on his appeal, his lawyer Jennifer Tremblay-Hall said Monday.

X was convicted of three counts of aggravated sexual assault, following a trial where the court heard testimony from a trio of women who met him through a dating website.

The offences occurred between July 2013 and April 2014.

————————————————————–

Published in Sootoday on November 20, 2017

HIV-positive man going to penitentiary for aggravated sex assaults

He used a condom, but the judge noted because he wasn’t taking antiretroviral medication it was possible he could have transmitted the virus.

X was escorted out of the courtroom in handcuffs Monday, after he was imprisoned for 3.5 years for failing to disclose his HIV status to three sexual partners.

Superior Court Justice Edward Gareau imposed the 42-month penitentiary term following the local man’s conviction a year ago on three counts of aggravated sexual assault involving a trio of women.

“Mr. X violated the trust of the complainants,” the judge said. “Mr. X exploited the complainants and was dishonest with them to satisfy his own sexual interests and desires.” 

The offences occurred between July 2013 and April 2014 with women he had met through a dating website.

A publication ban protects the identity of the victims.

Gareau noted that although X had used a condom during his acts with the complainants, he was not taking antiretroviral medication and his viral counts were not low, resulting in a realistic possibility that the HIV virus would be transmitted. 

“This, in my view, reflects on his moral culpability and although he ignored the warnings and advice of the public health officials, his condom use places him in the category of being reckless as opposed to intentionally trying to transmit the HIV virus.”

Gareau imposed three consecutive prison terms for the 28-year-old’s actions – 18 months on one count and 12 months each for the other offences.

He described X as “particularly cruel and cavalier” in the count that drew the lengthier sentence.

The complainant was medically vulnerable – she had disclosed to X that she had leukemia, and had undergone chemotherapy and a stem cell transplant, the judge said.

“Yet he took no steps to disclose his HIV status,” Gareau said, indicating this is an “aggravating factor of some significance” that set the woman apart from the other victims.

In his sentencing decision, he also pointed to one of the other women’s “powerful” victim statement that provided a “clear demonstration of the devastating and negative impact” X had on the victims.

The woman’s emotional pain was apparent as she read her statement to the court in September, Gareau said.

She described her shock and disbelief on Oct.31, 2014, when she read an online news report about X’s charges and condition which put her at risk.

“I was distraught,” she told the court, outlining how she had hurt her now former husband, the person “I had loved the most,” and destroyed their relationship.

The following three months, she was in despair and suicidal, and in June 2015 “my life as I knew it was over.” 

The woman said she took responsibility for what she had done, moved out on her own, and penniless, with the help of friends somehow managed to survive.

“I couldn’t complete simple tasks, because I felt so much shame and regret,” she said, detailing how she cried every day for two years.

“Hiding my shame was eating me alive,” the woman said, also indicating “taking responsibility is the only way to move forward.”

She told Gareau a jail sentence for X won’t make this better or take any of the pain away.

“But it would make me feel better, knowing that the victims aren’t the only ones shouldering this burden,” she said. “The defendant needs jail time.”

When he imposed sentence, Gareau spoke about a number of mitigating factors, including X’s lack of a criminal record and positive pre-sentence report.

During his discussions with the report’s author, X had expressed “remorse for his actions and the impact on the victims.” 

This, along with X’s statement to the court before sentencing, satisfied him that the man’s “feeling of remorse is genuine,” the judge said, calling it a positive mitigating factor.

Prosecutor Dana Peterson was seeking a global sentence of five years. Defence lawyer Jennifer Tremblay-Hall suggested a suspended sentence, with 12-to-18 months probation and strict conditions, which would amount to house arrest.

Gareau noted that in sentencing for this type of offence, “the principles of denunciation and deterrence remain paramount.”

He also indicated that in sentencing X he had kept in mind Criminal Code provisions which state “Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.”

In addition to the prison sentence, X must provide a DNA sample for the national database and is prohibited from possessing firearms for 10 years.

As well, he must register as a sex offender for life.