R. v. Mabior (C.L.) 2012 SCC 47
Criminal Law - Sexual offences - Rape or sexual assault - Consent and extorted consent
The accused was charged with aggravated sexual assault involving nine complainants, M.P., K.R., K.G., D.C.S., D.H., S.H., F.L., C.B., and J.L.L. The Crown claimed that the accused failed to disclose his HIV-positive status to the complainants before having sex with them. None of the complainants contracted HIV. The accused claimed that his duty to disclose his condition did not arise since the risk of transmission was low or negligible at the time and there was no significant risk of bodily harm to the complainants.
The Manitoba Court of Queen’s Bench, in a decision reported at 230 Man.R.(2d) 184, discussed the issues of viral load, infectivity and condom use. In the result, the court convicted the accused respecting six of the complainants (M.P., K.R., K.G., D.C.S., D.H. and S.H.), and acquitted the accused respecting the other three complainants (F.L., C.B. and J.L.L.), on the basis that sexual intercourse using a condom when viral loads were undetectable did not put a sexual partner at “significant risk of serious bodily” harm as required by R. v. Cuerrier (SCC 1998). The accused appealed. The Canadian HIV/AIDS Legal Network moved for leave to intervene in the conviction appeal.
The Manitoba Court of Appeal, per MacInnes, J.A., in a decision reported at 245 Man.R.(2d) 81; 466 W.A.C. 81, granted the intervention application. The appeal proceeded.
The Manitoba Court of Appeal, in a decision reported (2010), 258 Man.R.(2d) 166; 499 W.A.C. 166, allowed the appeal in part. The appeal court held that R. v. Cuerrier remained the law. However, that the trial judge erred in her application of the test of “significant risk of serious bodily harm” by ruling that a combination of both undetectable viral load and the use of a condom would be required to escape criminal liability. Rather, the appeal court held that either low viral loads or condom use could negate significant risk. That finding reduced to two the counts on which the accused could be convicted (i.e., respecting M.P. and K.R.). Acquittals were entered respecting K.G., D.C.S., D.H. and S.H. The Crown appealed the acquittals.
The Supreme Court of Canada allowed the appeal in part and stated that the convictions respecting S.H., D.C.S. and D.H. should be restored. The appeal was dismissed with respect to K.G.
Editor’s Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book’s editorial policy or otherwise. In this case the editing was done by the court.