He was initially convicted of aggravated assault, but on appeal the convictions were negated on the grounds that the low risk of transmission could mean that the offence had not been committed. The Crown appealed against this and the Supreme Court restored the convictions in four of the cases -where in spite of the low risk of transmission the complainants had testified that had they known of Mabior's HIV status they would not have had sex with him.
The case had been regarded as an important opportunity to reframe Canadian law on this issue. There was evidence to suggest that the level of prosecutions for this offence in Canada was high, and an unease about treating this as a serious life endangering offence in an era where improved drug treatment limited the impact of transmission. It is harder to argue that HIV is life endangering, at least in Canada and other western countries where the availability of retroviral drugs means that the illness can be managed. There was thus an argument that the offence had been drawn on overly broad terms, given its seriousness, and for limiting the role of the criminal law in this area.
The basic Canadian law in this area was established in the case of Cuerrier in 1998. In this case the Supreme Court ruled that failure to disclose that one has HIV could constitute fraud vitiating consent to sexual relations under s. 265(3)(c) of the Canadian Criminal Code and amount to aggravated sexual assault (s.273). (This, I should add, is already a stretch. Section 265 talks about applying force to another, and aggravated sexual assault is defined in terms of wounding, maiming, disfiguring or endangering the life of another - none of which are terms that easily fit in this area). So, in order to establish a conviction, the Crown must show a dishonest act which affected the ability of the complainant to consent (lying about the one's HIV status) and that this endangered life.
The decision in Mabior does not change the basic law in this area - an intentional failure to disclose HIV status can still amount to aggravated sexual assault - but it does try to clarify the circumstances under which discloure of HIV status might be necessary. For the sake of simplicity, the new test can be understood as comprising an objective and a subjective element. Objectively the Court states that in order for it to be necessary to disclose your HIV status there must be a 'significant risk' of transmission. Accordingly, where the risk of transmission is low it may not be necessary to inform prospective sexual partners of your HIV status (though the judgment is somewhat vague here as to whether it is also necessary to use a condom). In the subjective part of the test (which is not so clearly expressed) the Court seems to indicate that consent should be informed - that sexual partners should have the information necessary to enable them to make and informed decision as to consent.
|But is always necessary to use one?|