OCA expands grounds for reversal of HIV-related non-disclosure sexual assault convictions

Naturally-suppressed viral loads are not infectious and cannot support convictions

OCA expands grounds for reversal of HIV-related non-disclosure sexual assault convictions
Wayne Cunningham says Rubara goes beyond existing scientific consensus

The Ontario Court of Appeal has overturned a six-year-old aggravated sexual assault conviction of a man who did not disclose his HIV-positive status to a sexual partner of three months’ standing.

The decision in R. v. Rubara expands on the court’s August judgment in R. v. Murphy, where the court voided a similar conviction. In both cases, the accused did not reveal their HIV status to an unprotected partner. But in each case, the court relied on new scientific evidence to refute the realistic possibility of transmission and overturn the conviction.

Murphy, however, involved a single vaginal encounter where the accused had been on antiretroviral treatment that rendered her viral load undetectable; Rubara involved repeated unprotected sex over a three-month relationship where the accused was not on ART but was an “elite controller” who maintained a naturally suppressed viral load that was not infectious.

“The Rubara parties did not contest Murphy’s finding that the current scientific consensus is that individuals who have a suppressed viral load as a result of ART are not infectious,” says Wayne Cunningham, a partner in Toronto criminal law boutique Cooper, Sandler, Shime & Bergman LLP, counsel for Evans Rubara. “But Rubara goes beyond that consensus in finding that a suppressed viral load, without ART, can also negate the possibility of transmission.”

It’s important, Cunningham adds, that an accused is not required to demonstrate a scientific consensus to raise a reasonable doubt.

“Indeed, it was argued at the appeal – although not referenced in the judgement – that requiring the accused to show a scientific consensus would be akin to placing a persuasive burden on the defence rather than simply requiring the accused to raise a reasonable doubt. It is notable that there is no general consensus regarding individuals who are not on ART but naturally suppress viral loads because these individuals are so rare that a wide-scale study is not feasible.”

The bugbear, so far as others who may have been wrongfully convicted are concerned, is that neither Murphy nor Rubara establish means other than expert scientific evidence to refute the realistic possibility of transmission.

This is despite the 2012 Supreme Court of Canada decision in R. v. Mabior.

“The court held that, as a general principle of law, a low viral load and condom negate a realistic possibility of transmission even in the absence of expert evidence,” Cunningham says. “While in Murphy, the court declined to make a similar finding, in Rubara, the appellant did not ask the court to make this type of general rule.”

As Law Times has previously reported, there had been more than 220 HIV-related non-disclosure prosecutions in Canada by the end of 2021. And minorities have been disproportionately affected.

“Researchers have documented, and Justice Canada has recognized, that Black, Indigenous, and gay communities are disproportionately affected by prosecution or the threat of prosecution,” says the Canadian Coalition to Reform HIV Criminalization in its Community Consensus Statement released at the 24th International AIDS Conference in Montreal in July. “Sentences handed down in such cases appear to be harsher than in cases of conviction for sexual assaults involving coerced sex.”

The statement makes three demands for law reform: that criminal law is used only as a last resort; that criminal prosecutions be limited to cases of actual, intentional transmission of HIV; and that criminal charges should, in any event, never be used in certain circumstances.

Colleen McKeown, the partner in Toronto criminal law boutique Daniel Brown Law who represented Jennifer Murphy, says the current state of the law makes life difficult for individuals seeking to overturn wrongful convictions.

Rubara is another case in which someone was convicted of an extremely serious sexual offence when they actually posed no risk to their sexual partner. There are other such wrongful convictions out there. We need a mechanism to identify them and create an easier path to reversing them. Relying on individuals to bring separate appeals, pointing to the same scientific consensus, is an expensive and time-consuming approach, both for the individuals and for the court system.”

In July, the federal government announced that it would hold consultations on modernizing the approach to the issue.

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