Ontario’s top court rejected arguments that condom use is a sure fire way to prevent transmission of the virus that can lead to AIDS, upholding an aggravated assault conviction against an HIV-positive man who had protected intercourse with three women without telling them about his health status. Condoms are shown in Montreal, Nov. 30, 2006. THE CANADIAN PRESS/ Adrian Wyld

Ontario’s top court rejected arguments that condom use is a sure fire way to prevent transmission of the virus that can lead to AIDS, upholding an aggravated assault conviction against an HIV-positive man who had protected intercourse with three women without telling them about his health status. Condoms are shown in Montreal, Nov. 30, 2006. THE CANADIAN PRESS/ Adrian Wyld

Canadian man with HIV still guilty of aggravated sex assault despite condom use

Court said women may not have been as careful as they did not know the diagnosis

An HIV-positive man who had protected intercourse with three women without telling them about his health status has had his aggravated sexual assault conviction upheld.

In dismissing his appeal, Ontario’s top court rejected arguments that condom use is a sure fire way to prevent transmission of the virus that can lead to AIDS.

“There is no dispute that a perfectly functioning latex condom provides a perfect barrier to HIV transmission,” the Appeal Court said. “(But) condoms do not always work as they are intended to work.”

For one thing, the court said, if a person is unaware of the risk, he or she may also not be as vigilant when using a condom.

Trial evidence was that the man, identified only as N.G., had been warned in October 2013 to tell prospective partners he was HIV-positive. He failed to do so, despite having repeated sex with the three women over several months.

They complained they would not have had intercourse with him had they known. One contracted HIV after sex with N.G., but it’s not known whether he infected her. Another said she felt suicidal while awaiting test results.

At trial, N.G. argued condom use made HIV transmission impossible. However, Superior Court Justice Edward Gareau rejected the argument in November 2017. While condoms can prevent HIV transmission, Gareau found they are only 80 to 85 per cent effective in real world circumstances.

READ MORE: Sentencing date set for Chilliwack man who failed to disclose HIV-positive status to partner

Citing a 2012 Supreme Court of Canada ruling known as Mabior, the judge found a “realistic possibility” of HIV transmission existed when N.G., who was highly contagious, was having sex with the women. The 2012 ruling also made it clear that the failure to tell a partner about one’s status amounted to legal “fraud” that negated consent to sex.

Gareau convicted the accused but before sentencing him to 42 months, N.G. tried to reopen the trial by arguing the Supreme Court jurisprudence should be modified. He called in one expert on whom the top court had previous relied, Dr. John Smith from Winnipeg. Smith testified his thinking on condom use had evolved in recent years.

“An individual who always uses a condom and is careful in its use can be almost 100 per cent sure that the HIV virus will not be transmitted,” Smith said.

Interveners such as the HIV Legal Network also argued proper condom use alone should be enough to remove a “realistic possibility” of transmission for criminal law purposes.

Both Gareau and the Appeal Court rejected the assertion given the potential for condom failure.

“The Mabior decision reflects the Supreme Court’s appreciation for the fact that perfectly operating latex condoms provide a perfect barrier to the transmission of HIV,” the Appeal Court said. “It also reflects the court’s understanding that sex happens in the real world and that, in that world, human error and condom failure are concerns across the population.”

In this case, the appellate court said, N.G. had intercourse with the women at a time his viral load — a strong indicator of infectiousness — was not low. Wearing a condom did not definitively rule out a realistic possibility of HIV transmission, it said.

The interveners also argued that criminalizing people with HIV who use condoms is bad public policy and only adds to their stigmatization. While the issue might one day be reconsidered, the Appeal Court found no reason to do so in the current case.

Colin Perkel, The Canadian Press


Like us on Facebook and follow us on Twitter.

Want to support local journalism during the pandemic? Make a donation here.

HIV/AIDS

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Emergency crews in Chilliwack were called to a report of a vehicle down an embankment at Chipmunk Creek on April 18, 2021, at about 4 p.m. (Google Maps)
Chilliwack emergency crews respond to vehicle down embankment at Chipmunk Creek

Search and Rescue join other responders to report of person trapped in vehicle for hours

Alisa Gusakova was one of two Grade 12 Chilliwack students who received a $5,000 Horatio Alger Canadian Scholarship earlier this year. Now, a fundraiser has been created for the teen after her mother was killed. (Jenna Hauck/ Chilliwack Progress file)
Fundraiser launched for daughter of Chilliwack woman killed

Money raised will help Chilliwack teen attend UFV to earn business degree

Chilliwack Search and Rescue volunteers say that a call on April 17 on Vedder Mountain was affected by bikers who rode through the rescue site, throwing rocks onto members and the patient. (Chilliwack Search and Rescue image)
Chilliwack Search and Rescue team, and patient, sprayed with rocks and dirt during rescue

Volunteer crew speaks out after riders on Vedder Mountain show no courtesy at accident scene

Agassiz Fire Department has been called to an ATV rollover on Harrison East Forest Service Road on Sunday, April 18, 2021. (Google Maps)
Agassiz Fire called out to ATV rollover incident on Harrison FSR

Morning call follows exceptionally busy Saturday as temperatures soar in Fraser Valley

A Chilliwack Search and Rescue truck heads down Vedder Road towards Cultus Lake to assist a dirtbiker with a broken leg. (Paul Henderson/ Chilliwack Progress)
Emergency crews, SAR busy with three separate outdoor recreation incidents in Chilliwack area

Calls in 1 afternoon include ATV collision, parachuter who fell from tree, dirtbiker with broken leg

Vancouver resident Beryl Pye was witness to a “concerning,” spontaneous dance party that spread throughout social groups at Kitsilano Beach on April 16. (Screen grab/Beryl Pye)
VIDEO: Dance party erupts at Vancouver’s Kitsilano Beach to the dismay of onlookers

‘It was a complete disregard for current COVID-19 public health orders,’ says Vancouver resident Beryl Pye

Deputy Prime Minister and Minister of Finance Chrystia Freeland responds to a question during Question Period in the House of Commons Tuesday December 8, 2020 in Ottawa. The stage is set for arguably the most important federal budget in recent memory, as the Liberal government prepares to unveil its plan for Canada’s post-pandemic recovery even as a third wave of COVID-19 rages across the country. THE CANADIAN PRESS/Adrian Wyld
Election reticence expected to temper political battle over federal budget

Opposition parties have laid out their own demands in the weeks leading up to the budget

File photo. THE CANADIAN PRESS/Graeme Roy
One man dead after shooting in Downtown Vancouver

This is Vancouver’s fifth homicide of the year

Cannabis bought in British Columbia (Ashley Wadhwani/Black Press Media)
Is it time to start thinking about greener ways to package cannabis?

Packaging suppliers are still figuring eco-friendly and affordable packaging options that fit the mandates of Cannabis Regulations

A syringe is loaded with COVID-19 vaccine at a vaccination clinic run by Vancouver Coastal Health, in Richmond, B.C., Saturday, April 10, 2021. THE CANADIAN PRESS/Jonathan Hayward
B.C. to open up COVID vaccine registration to all B.C. residents 18+ in April

Registration does not equate to being able to book an appointment

(Black Press file photo).
UPDATED: Multiple stabbings at Vancouver Island bush party

Three youths hospitalized after an assault in Comox

Selina Robinson is shown in Coquitlam, B.C., on Friday November 17, 2017. British Columbia’s finance minister says her professional training as a family therapist helped her develop the New Democrat government’s first budget during the COVID-19 pandemic, which she will table Tuesday. THE CANADIAN PRESS/Darryl Dyck
B.C. finance minister to table historic pandemic-challenged deficit budget

Budget aims to take care of people during pandemic while preparing for post-COVID-19 recovery, Robinson said

Police tape is shown in Toronto Tuesday, May 2, 2017. Statistics Canada says the country's crime rate ticked up again in 2018, for a fourth year in a row, though it was still lower than it was a decade ago. THE CANADIAN PRESS/Graeme Roy
CRIME STOPPERS: ‘Most wanted’ for the week of April 18

Crime Stoppers’ weekly list based on information provided by police investigators

Most Read