Canada: Top Court to Review HIV Sex Law

The Supreme Court of Canada on Thursday announced it will hear two appeals that concern the risk of HIV transmission in the era of antiretroviral therapy. Both cases involve people with undetectable viral loads, where the possibility of infecting a serodiscordant partner is reduced but not eliminated.

A Quebec case concerns a woman who, court documents say, did not tell her former spouse she had HIV before having unprotected sex. Experts told the court the risk of transmission was one in 1,000 for unprotected sex, and would have been one in 50,000 had condoms been used. A case in Manitoba involves similar issues.

The Supreme Court does not usually give reasons for taking cases. However, lower courts have asked the Supreme Court to review its own test for what constitutes serious risk.

"Issues of condom usage and viral load raise difficulties of proof perhaps not contemplated or even known when the Supreme Court developed the test," wrote Judge Freda Steel for the Manitoba appeals court last year. "In light of these concerns and the developments in the science, the Supreme Court may wish to consider revisiting the test ... to provide all parties with more certainty."

"In light of its numerous social, ethical, and moral ramifications, the initiative of revisiting the entire notion of transmission risks for serious infectious diseases, in the context of Canadian criminal law, should be the responsibility of Parliament," wrote Judge Jacques Chamberland for the Quebec appeals court.

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