R v Mabior: HIV-Positive Accused, Non-Disclosure, and the Glaring Negatives of R v Cuerrier
As someone who came of age in the late 1990s, the HIV/AIDS epidemic of the past decade was always omnipresent. No sexual education class was complete without a candid discussion about HIV transmission, and the importance of practicing safe sex. But even though HIV was always a part of the conversation, I frankly felt a bit removed from it.
By the early 2000s, being diagnosed with HIV no longer carried the death sentence it once had. It was not until a short stint as a volunteer at a hospice for individuals living with HIV/AIDS that really brought it home for me, far more than any condom-on-a-banana demonstration or poorly-conceived National Film Board-funded PSA ever could. I had the opportunity to meet people who were receiving palliative care, and understand how HIV/AIDS had radically transformed their lives. I also met some volunteers who were HIV positive. Their stories were very different, but many of their struggles were the same. Some had been misled by lovers who had failed to disclose their HIV positive status, or simply had not been tested for the disease. Others acknowledged that they had made reckless choices in the throes of addiction.
It is true, being diagnosed with HIV is no longer a death sentence. Thanks to medical advances, HIV positive Canadians are able to live long, healthy lives. But there is also no question that HIV can radically change the course of one’s lives, and HIV positive people still deal with many inequities in their day-to-day lives.
These experiences I have had made reading cases such as R v Mabior (CL), 2010 MBCA 93 [Mabior], a truly difficult experience. The facts of the case are horrifying: the accused was appealing a conviction on six counts of aggravated sexual assault and on one count each of invitation to sexual touching and sexual interference.
The accused, who was HIV positive, engaged in sexual relations with the six complainants, one of whom was only 12 years old at the time.
However, beyond the gruesome details, what makes cases like these particularly difficult to read is the application of R v Cuerrier,  2 SCR 371 [Cuerrier], a Supreme Court of Canada decision that held that an accused’s failure to disclose their HIV-positive status, where it would create a “significant risk of serious bodily harm to the complainant.” Is fraud and can vitiate sexual consent.
There is no question that many of the accused’s actions could be considered objectively abhorrent. However, the Cuerrier precedent has long been criticized for its effect and impact, and Mabior offers a particularly acute example of how difficult the case is to apply and the remarkable effect that it has on all HIV related cases.
Facts and Issues
The accused in Mabior was convicted on six counts of aggravated sexual assault, and two additional counts of sexual touching and interference. The accused had sex with six women between February 2004 and December 2005, and although he knew that he was HIV positive, he did not disclose his status to his sexual partners. The accused was counseled on the importance of engaging in safe sex, and informing his sexual partners of his current status. Additionally, the complainants indicated that they would not have consented to their sexual encounters with the accused if they had known that he was HIV positive.
The facts are quite similar to those in Cuerrier itself, where the accused was charged with two counts of aggravated assault after engaging in unprotected sexual relations with two complainants, and failing to inform them of his HIV positive status. Although neither complainant tested positive following their sexual encounters with the accused, the non-disclosure was found to have created a significant risk of serious bodily harm, and the fraud negated sexual consent.
However, the primary issue in this case before the Manitoba Court of Appeal was whether the trial judge had erred in her application of the test of “significant risk of serious bodily” harm to the facts. Specifically, the accused had used condoms with some of his partners, and he had a very low viral load, an important factor indicating a relatively low risk of getting sick through a viral infection. Through the use of antiretroviral therapy, the accused’s viral load was significantly reduced, and the Court was left with the question of whether this reduced ability to transmit HIV through unprotected sex would still meet the legal test required.
Madame Justice Steel stated the issue in these terms: The law with respect to aggravated sexual assault and the transmission of HIV, as developed by the Supreme Court of Canada in Cuerrier, attaches criminal liability to the failure to disclose one’s positive HIV status only when there is a “significant risk of serious bodily harm.” That determination will vary depending on the scientific and medical evidence adduced in each particular case. In this case, the scientific evidence indicated that either the careful use of a condom or effective antiretroviral therapy which reduced viral loads to an undetectable level could potentially reduce the level of risk to below the legal test of “significant risk.”
At the end of the day, Steel J. concluded that the trial judge had erred, and allowed the accused’s appeal on four counts. However, the evidentiary considerations in this case illustrate why Cuerrier is a difficult precedent to apply.
A Modern Day Scarlet Letter: Life After Cuerrier
There have been many policy arguments made against the Cuerrier precedent, and the fact that it effectively criminalizes non-disclosure of an HIV positive status. TheCourt.ca’s Daniel Del Gobbo covered the issue extensively (here and here) in the wake of the conviction of Johnson Aziga, the first person in Canada to be convicted of first degree murder for non-disclosure.
Principally, the argument against Cuerrier is that it is a judicial response to what is a public health issue. Concerns have also been raised about the impact of the case and whether it may in fact deter individuals from getting tested. Additionally, questions have been raised about whether Cuerrier adds to the stigma faced by people living with HIV.
However, the Mabior case is illustrative of another failing of the Cuerrier precedent; despite the decision being only 12 years old, significant advancements have been made in the treatment of the virus. In addition, with the greater awareness of safe sex practices and the proliferation of condoms and other forms of sexual protection, the overall risk of transmission has been significantly reduced.
These medical advances have added further confusion to the already-murky standard of what qualifies as “significant risk” in this context. All of the parties (including the Canadian HIV/AIDS Legal Network, which intervened in the case) agreed that “individuals who intentionally or recklessly infect their partners with a serious disease” should be charged, and that disclosure is necessary. However, short of this scenario, probably close to the extreme edge of culpability, courts are left with a significant grey area when determining what does and does not attract criminal liability.
The Crown in Mabior argued that the use of condoms and the use of medication did not negate the significant risk in this case. Alternatively, they also argued that, on the issue of condoms, there was “no evidence on which to base a finding that condoms were properly used and therefore no basis for a finding that they effectively reduced the risk of transmission in this case.” The trial judge concluded that both low viral loads and the consistent use of condoms were required to fall below the threshold of “significant risk.” The Court of Appeal reached a very different conclusion, as noted above. This legal wrangling shows that there is no clear legal standard here.
An example of this ambiguity can be found in Steel J.A.’s judgment, where she considers the trial judge’s reliance on the 80 per cent effectiveness rate of condoms:
Although the trial judge quoted the medical evidence of an 80 per cent reduction in risk, she did not go on to consider an 80 per cent reduction ‘from what.’ A substantial reduction of an already small number may not necessarily result in a significant risk. As a foundational building block to the legal question of whether a significant risk remains where there is condom use or reduced viral loads, one must first have a baseline of the rate of transmission of HIV in unprotected intercourse.
The court then goes on to find some kind of baseline to hold the accused to, in order to make a determination on significant risk. But this is one of the biggest unresolved questions coming out of Cuerrier. What, exactly, qualifies as a significant risk? The trial judge in this instance seems to have taken the position that virtually any risk is a significant risk, whereas the Court of Appeal’s reasoning falls more into line with current medical opinion regarding HIV transmission and antiretroviral therapy.
More generally, use of condoms is or is not a failsafe defence to these charges. Steel J.A. notes that “several Canadian cases have expressly or implicitly accepted that the Crown must establish unprotected anal or vaginal sex in order to reach the threshold of a significant risk triggering a duty to disclose.” In Cuerrier, Cory J. (writing for the majority) only suggested that careful use of condoms might reduce the risk of transmission. Once again, it was left as something that would have to be determined on the facts and evidence adduced, but there is no clearly articulated standard that is easily applicable.
Even if condoms are used, the usage gives rise to a whole other subset of issues regarding proper use. Many of those issues were present in this case. Were the condoms properly stored? Were they expired? Were they properly applied? Were they applied by the accused or the complainant? (Does it matter?) What effect does intoxication have on the proper use of condoms?
Similar questions also exist about viral loads. While antiretroviral therapy and low viral loads may mean that there is a significantly reduced risk of transmission, there are a range of other issues that can cause spikes in viral loads.
Steel J.A. makes reference to this evidentiary quagmire in her conclusion:
At the very least, issues of condom usage and viral load raise difficulties of proof perhaps not contemplated or even known when the Supreme Court developed the test in Cuerrier. The scientific evidence provides only general propositions or benchmarks, whereas judicial determination of individual cases is, of necessity, fact-specific. It is the Crown’s obligation to prove its case beyond a reasonable doubt. To achieve the goal of careful and consistent condom use, as described by Dr. Smith, involves a complex series of steps. The inquiry as to whether there was careful and consistent use of a condom in a particular instance of sexual activity is likely to be an unrealistic endeavour given that the sexual acts at issue will often have occurred some time ago, in conjunction with the use of drugs and/or alcohol, and the participants may be young and unaware of how to properly use a condom…Again, with respect to viral loads, the ability to show that an accused had a common infection or an STD at the time of sex that might have led to a spike in the viral load may very well prove elusive. In light of these concerns and the developments in the science, the Supreme Court may wish to consider revisiting the test in Cuerrier to provide all parties with more certainty.
Overall, I agree with Steel J.A.’s assessment and her ultimate conclusion. There are significant policy reasons to revisit Cuerrier – namely, is it really the appropriate way to handle this public health issue, and is the duty to disclose fair? (TheCourt’s Daniel Del Gobbo has previously argued – quite persuasively – that there should be a “duty to enquire” on the part of the complainant.)
However, as Mabior indicates, there are more practical reasons to revisit the precedent created by Cuerrier. While well-intentioned, the decision has failed to keep pace with the current reality of HIV/AIDS. Since being convicted of aggravated assault can lead to a hefty prison sentence, further refinements are needed.