October 5th, 2012
This morning, the Supreme Court of Canada released the highly anticipated decisions in the cases of R v DC and R v Mabior. The release of these decisions clarifies the “significant risk of bodily harm” standard first set out in R v Cuerrier.
The crux of the decisions is this: Mabior clarifies that the Cuerrier standard of “significant risk of bodily harm” “should be read as requiring disclosure of HIV status if there is a realistic possibility of transmission of HIV”.
A “realistic possibility” of HIV transmission will be negated if: (i) the accused’s viral load at the time of sexual relations was low and (ii) condom protection was used.
If these two elements are present, one’s failure to disclose their HIV status will not constitute fraud vitiating consent under section 265(3)(c) of the Criminal Code.
Watch out for more detailed commentary on these decisions very soon!