By Corbin Cawkell
Partner, Hicks Adams LLP

COMMENTARY: HIV-POSITIVE MAN GOING TO TRIAL FOR ATTEMPT MURDER Read Story

The death sentence that was once AIDS is no longer the reality. The fact that AIDS is survivable and, more importantly, potentially not transmittable even after unprotected sex, makes the current state of the law archaic.

In the past, when dealing with sexually transmitted diseases, the courts came down understandably hard on those offenders who had not disclosed their HIV status. The Supreme Court of Canada (SCC) changed the law in Cuerrier holding that consent can’t be honestly given if the fact that the partner was HIV positive and did not disclose this prior to sexual activity. This was based upon the jeopardy attached at that time to exposure to the HIV virus.

The recent cases before the SCC reflect the advances made in the area of AIDS treatment. The case out of Manitoba that is before the SCC dealt with a person whose viral loads were so low the risk of infecting someone with HIV were minimal and he was acquitted.

In this case, as it is a ruling on the appropriateness of an Ontario Court of Justice to commit to trial after a preliminary hearing had been held, it is not a clearly inappropriate ruling to uphold the preliminary hearing justice’s decision to commit Mr. Boone to stand trial on attempted murder.

Appealing the order not to quash the committal to stand trial seems premature and would depend largely on what evidence was raised on the issue of Mr. Boone’s HIV status and the mortality rates for HIV/AIDS infected people. Likely, the best place for this evidence to be called is at trial and it is highly unlikely that this evidence was raised at a preliminary hearing.

Mr. Boone’s counsel likely will have the assistance of the SCC decisions currently scheduled to be heard.

Given the medical evidence raised at each of the trials in these several cases that are going to be argued at the SCC on appeal, it appears that the the court will have to revisit the issue of the ‘significant risk’ caused by the AIDS virus because in all the cases leading up to the SCC appeals, the medical evidence showed conclusively that the risk posed by HIV today is not nearly as ‘significant’ as it was back in 1998 when Cuerrier was decided.