Nov 18, 2014

Facts: The accused was charged with aggravated sexual assault involving nine complainants.The Crown claimed that the accused failed to disclose his HIV-positive status to the complainants before having sex with them. None of the complainants contracted HIV. The accused claimed that his duty to disclose his condition did not arise since the risk of transmission was low or negligible at the time and there was no significant risk of bodily harm to the complainants.

Judicial History: At trial, he was convicted of six counts and acquitted on three. The trial judge concluded that using a condom during intercourse when viral loads are undetectable does not place a sexual partner at significant risk of serious bodily harm. The decision was appealed to the Manitoba Court of Appeal, which came to a different conclusion. That court found that either low viral loads or condom use could negate significant risk. As a result, they decided that Mr. Mabior could only be convicted on two counts. The Crown appealed the acquittals on the other four counts to the Supreme Court of Canada.

Issue: was there a duty to disclose?

Held: Appellate decision overturned for 3 of the 4 counts.

Analysis: the Supreme Court concluded that Mr. Mabior should be convicted of three of the four counts that he was acquitted of at the Court of Appeal. In doing so, the Court revisited the test set out in the Cuerrier decision, saying that, “A person may be found guilty of aggravated sexual assault under s. 273 of the Criminal Code if he fails to disclose HIV-positive status before intercourse and there is a realistic possibility that HIV will be transmitted."

The Court convicted on three counts because, although he had a low viral load when he had intercourse with three sexual partners, he did not use a condom. The Court concluded that low viral load with no condom use meets the test for “a realistic possibility of transmission of HIV” and he was, therefore, convicted on those counts. In the case of the fourth sexual partner, Mr. Mabior was not convicted because he did use a condom and his viral load was low. The Court concluded, “the combination of a low viral load – as opposed to an undetectable viral load – and of condom use negates a realistic possibility of transmission, on the evidence in this case.”