What you need to know about the Supreme Court’s HIV rulings

TORONTO – In a pair of landmark decisions, the Supreme Court of Canada ruled Friday that Canadians who are HIV-positive can’t be held criminally responsible for failing to disclose their status – but only if the person uses a condom and has only low levels of the virus.

Judges at Canada’s highest court handed a unanimous ruling in two cases that involved Canadians who were living with HIV and had sex with partners without informing them of their disease.

The ruling is contentious – Crown attorneys in the cases had argued that HIV is a terminal disease and officials shouldn’t bear the responsibility of determining what’s safe and what isn’t while some physicians and lawyers suggested that HIV is now a manageable disease and forcing those living with the condition would stigmatize the group and perpetuate fear.

Global News walks readers through what the ruling means.

What did the Supreme Court clarify in its Friday rulings?

The Supreme Court clarified what would constitute holding a person criminally responsible for withholding their HIV status to a sexual partner.

What did the rulings change?

The rulings amend a decades-old ruling that made it illegal to not inform a sexual partner about one’s HIV diagnosis for the first time in Canada. Now, people with HIV can’t be criminally punished for failing to tell their sexual partners about their diagnosis as long as they use a condom and their virus levels are low. Failure to meet both parts of the criteria would still leave Canadians open to prosecution, the judges ruled.

What is considered a “low viral load”?

The court did not provide an actual definition for a low viral load. There is currently no cure for HIV, but huge leaps in medicine have helped those living with the condition – some physicians even argue that the disease that once handed people a death sentence should now be called a chronic condition.

HIV patients who take drug cocktails known as HAART, or highly active antiretroviral therapy, dramatically reduce their viral load to undetectable levels, making the likelihood of transmitting the disease incredibly low.

Canadian researchers have argued that those who are on HAART reduce the chances of transmission by 96 per cent. These Vancouver scientists’ research on HAART therapy has even been applauded by the United Nations as a “treatment as a prevention” strategy to combat HIV/AIDS.

The court noted that a patient on treatment can shrink levels of the virus to less than 50 “copies” per milliliter while when left untreated, an HIV patient could have levels as high as a few million copies.

How do condoms affect the risk of transmission?

If worn properly, a condom would reduce the risk of transmission to zero.

Why did the judges unanimously decide to alter old laws?

Chief Justice Beverley McLachlin wrote for the court that “condom use is not a fail-safe” and antiretroviral therapy isn’t a “safe-sex strategy” either.

“Antiretroviral therapy, alone, still exposes a sexual partner to a realistic possibility of transmission. However, on the evidence before us, the ultimate percentage risk of transmission resulting from the combined effect of condom use and low viral load is clearly extremely low – so low that the risk is reduced to a speculative possibility rather than a realistic possibility,” McLachlin wrote.

Where do these rulings stem from?

Two high-profile cases made their way up the appeals process to the Supreme Court. In one case, an HIV-positive man and Sudanese immigrant in Winnipeg was sentenced to 14 years in prison in 2008 after he was found guilty on multiple counts of aggravated sexual assault.

Clato Mabior engaged in unprotected sex with six women – one was a 12-year-old – without disclosing his status.

He had an undetectable viral load and used condoms during intercourse during some of the sexual encounters.

In another case in Quebec, a woman had unprotected sex with her former spouse without telling him of her HIV-positive status. In that case, she was acquitted by the Quebec appeals court because her viral load was undetectable and the risk of transmission was low.

What were Crown attorneys and organizations each rooting for?

Crown attorneys in favour of enforcing a law that makes HIV-positive Canadians disclose their status to partners say that HIV is still a fatal disease and that it’s not for police and the courts to determine how well the virus is being suppressed to stave off charges.

But physicians and human rights advocates argue that if Supreme Court judges make Canadians living with HIV disclose their condition to partners, the law would stigmatize these people and perpetuate fear of what’s now a manageable disease.

What was the old law?

The Supreme Court ruled in 1988 that anyone who didn’t disclose their status to partners could be charged with sexual assault or aggravated assault. It carries a maximum penalty of life in prison and an obligatory designation as a sex offender for 20 years. More than 130 people have been charged under this law.

Could these laws change again?

Yes, depending on advances in medicine. In the Mabior ruling, the Supreme Court said, “this general proposition does not preclude the common law from adapting to future advances in treatment and to circumstances where risk factors other than those considered in this case are at play.”

– With files from Rebecca Lindell and Postmedia News