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Rules for HIV prosecutions unclear despite SCC decision

|Written By Shannon Kari

The state of prosecutions in Ontario for non-disclosure of HIV status may still be unclear even after the recent Supreme Court rulings that attempted to clarify its 1998 decision in R. v. Cuerrier.

A ‘tactical burden’ may fall on the accused to raise a reasonable doubt in the face of a prima facie case of deception, wrote Chief Justice Beverley McLachlin in Mabior. Photo: Gail J. Cohen

The amended test set out in R. v. Mabior and R. v. D.C. on Oct. 5 has arguably made it easier for the Crown to obtain criminal convictions for non-disclosure. Yet the Ontario Ministry of the Attorney General is criticizing the risk-based approach to prosecuting HIV non-disclosure as ineffective in protecting the public in two upcoming cases before the Ontario Court of Appeal.

At the same time, the province has still not issued formal guidelines for Ontario Crown attorneys in these types of cases. That’s something HIV advocacy groups have been asking for.

“There has been an unwillingness to take on the issue,” says Jonathan Glenn Betteridge, a non-practising lawyer who has written extensively on HIV non-disclosure cases. “Without guidance, it is very hard to predict what the Crown will do in a given case,” says Betteridge.

Jonathan Shime, who acted for a number of HIV advocacy groups that were interveners at the Supreme Court in Mabior and D.C., echoes that view. “Prosecutors have been left to their own devices. We have been pushing for guidelines,” says Shime, a partner at Cooper Sandler Shime & Bergman LLP in Toronto.

Shime is also a member of the Ontario Working Group on Criminal Law and HIV Exposure that has made recommendations to the attorney general. They include a call for specially trained prosecution teams in this area and increased education for police.

In December 2010, then-attorney general Chris Bentley said the ministry would come up with formal guidelines. A spokesman for the ministry told Law Times it has been awaiting the decisions in Mabior and D.C. “Prosecutions involving exposure to HIV are complex and engage a number of legal and scientific issues,” said ministry spokesman Brendan Crawley in a written response.

“The ministry is in the process of carefully reviewing the direction provided by the Supreme Court and determining what further prosecutorial guidance is required,” he added.

The Supreme Court rulings, which Shime suggests have made it “less onerous” on the Crown to prove its case, could lead to a “spike” in non-disclosure prosecutions. However, “Ontario has already taken a very aggressive stance,” says Shime.

A study by Betteridge and York University professor Eric Mykhalovskiy, published this year in the Canadian Journal of Law and Society, tracked all HIV non-disclosure prosecutions from 1989 to 2010 and found that about half of the 122 cases were in Ontario.

 Heterosexual men made up 60 per cent of those accused of non-disclosure in the province. In about half of those cases, the defendants were black heterosexual men. Slightly more than three-quarters of all cases in Ontario ended with a conviction related to non-disclosure.

Shime says that percentage could rise given that the Supreme Court now requires a defendant to show evidence of a low viral load as well as use of a condom in order to raise a reasonable doubt that there was a “realistic possibility” of transmission.

 “Once a complainant gets up and says, ‘We engaged in unprotected sex,’ under the new law that could be enough,” says Shime. That would be the case unless the accused can meet what Chief Justice Beverley McLachlin referred to as the “tactical burden” on the accused to raise a reasonable doubt in the face of a prima facie case of deception and deprivation.

In its ruling in D.C., the Supreme Court indicated it would have convicted the woman who had an undetectable viral load and who was charged after her partner contacted police when he was accused of domestic abuse except for the fact that the trial judge improperly used hearsay evidence to conclude that the couple had unprotected sex on one occasion. That error that led the Supreme Court to set the conviction aside.

The decisions have given the Crown “a lot of leeway” to decide whether or not to prosecute in any specific case, says Isabel Grant, a University of British Columbia law professor. A legal paper written by Grant last year pointed out that in England there are prosecutions only when transmission has occurred unless there’s proof of an intent to transmit the virus. A conviction for aggravated sexual assault can occur in Canada without any HIV transmission.

“This case increases the risk that vulnerable women, such as women who are not able to insist on condom use or women who don’t have access to expensive medication, will be criminalized for non-disclosure,” says Grant.

The Supreme Court rulings increase the likelihood of inequality in defending these cases, says Shime. “One of the problems with this decision is it favours people who are wealthy and have access to medical treatment,” he says.

Meanwhile, the Ontario Crown may have to revise its stance in two HIV non-disclosure cases that were headed to the Court of Appeal in June of this year but were adjourned pending the top court decisions.

 In a factum filed with the Court of Appeal, Crown attorney Kimberley Crosbie argued that anyone who’s HIV positive and has failed to disclose that fact has committed a sexual assault even if the person has a low viral load and has used a condom. The Crown also wanted to be able to lay a charge of sexual assault causing bodily harm if the non-disclosure caused psychological harm to the complainant.

For more on the legal issues related to HIV, see our video "HIV and the law."

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