Edmonton Journal (02.09.12) - Thursday, February 09, 2012
HIV treatment has not advanced enough that people with
HIV/AIDS have no obligation to tell potential sex partners
about their infection, the Supreme Court of Canada heard
"We're not there yet," Elizabeth Thomson, Crown attorney for
Manitoba, told the nine justices. "The threat of HIV is not
The Supreme Court is reviewing disclosure laws following cases
in Quebec and Manitoba where two people with HIV were
acquitted of criminal charges for not revealing their
serostatus. A 1998 Supreme Court case ruled that those who
hide their infection do not allow partners informed consent
and expose them to "significant risk of serious bodily harm,"
even if no transmission occurs. As a result, people with HIV
who do not disclose their serostatus can be criminally liable.
Advocates argue that the risk of transmission is significantly
lower when a condom is used and the viral load is suppressed
through treatment. The Crown in Manitoba, Quebec, and Alberta
jointly asked the Supreme Court to make full disclosure
mandatory, since HIV is incurable and potentially fatal.
The criminal law is meant to protect the uninfected public at
large, even it means singling out people with HIV, said
Caroline Fontaine, Quebec's Crown attorney. "An HIV-infected
person's sex life cannot be like everyone else's," she said.
Basing the law on "moving targets" such as viral loads would
be "dangerous," she said.
The laws have made people with HIV hesitant to disclose their
status due to unfair prosecutions and even dissuade some from
testing, Jonathan Shime, of the Canadian HIV/AIDS Legal
Network, told the court. The laws should only apply when
transmission or recklessness can be proven, he said.