Law Times

PAGE 4 Rules for HIV prosecutions unclear despite SCC decision NEWS aſter the recent Supreme Court rulings that attempted to clarify its 1998 decision in R. v. Cuerrier. The amended test set out in R. T BY SHANNON KARI For Law Times he state of prosecutions in Ontario for non- disclosure of HIV status may still be unclear even guidelines for Ontario Crown attorneys in these types of cases. That' groups have been asking for. "There has been an unwill- ingness to take on the issue," s something HIV advocacy v. Mabior and R. v. D.C. on Oct. 5 has arguably made it easier for the Crown to obtain criminal convictions for non-disclosure. Yet the Ontario Ministry of the Attorney General is criticizing the risk-based approach to pros- ecuting HIV non-disclosure as ineffective in protecting the pub- lic in two upcoming cases before the Ontario Court of Appeal. At the same time, the prov- ince has still not issued formal LIVE COVERAGE says Jonathan Glenn Betteridge, a non-practising lawyer who has written extensively on HIV non-disclosure cases. "Without guidance, it is very hard to pre- dict what the Crown will do in a given case, for a number of HIV advocacy groups that were interveners at the Supreme Court in Mabior and D.C., echoes that view. "Pros- ecutors have been leſt to their own devices. We have been pushing for guidelines," says Shime, a part- ner at Cooper Sandler Shime & Bergman LLP in Toronto. Shime is also a member of Jonathan Shime, who acted " says Betteridge. A 'tactical burden' may fall on the accused to raise a reasonable doubt in the face of a prima facie case of deception, wrote Chief Justice Beverley McLachlin in Mabior. Photo: Gail J. Cohen the Ontario Working Group on Criminal Law and HIV Exposure cess of carefully reviewing the direction provided by the Su- preme Court and determining what further prosecutorial guid- ance is required, torney general Chris Bentley said the ministry would come up with formal guidelines. A spokesman for the ministry told Law Times it has been awaiting the decisions in Mabior and D.C. "Prosecutions involving exposure to HIV are complex and engage a number of legal and scientific issues," said ministry spokesman Brendan Crawley in a written response. "The ministry is in the pro- which Shime suggests have made it "less onerous" on the Crown to prove its case, could lead to a "spike" in non-disclosure pros- ecutions. However, "Ontario has already taken a very aggressive stance, The Supreme Court rulings, " he added. Articling Debate Please join us for a webcast and a real-time discussion of the Articling Task Force Report. The future of articling in Ontario will be debated at Convocation on October 25, 2012. You can be part of the discussion live on the event page or on Twitter. For more information, visit http://www.lawsocietygazette.ca/articling LET RIGHT PREVAIL Untitled-1 1 12-10-09 12:23 PM With more than 1,400 pages of essential legal references, Ontario Lawyer's Phone Book is your best connection to legal services in Ontario. Subscribers can depend on the credibility, accuracy and currency of this directory year after year. 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Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation CANADIAN LAW LIST University professor Eric Mykha- lovskiy, published this year in the Canadian Journal of Law and Soci- ety, tracked all HIV non-disclosure prosecutions from 1989 to 2010 and found that about half of the 122 cases were in Ontario. Hetero- sexual men made up 60 per cent of those accused of non-disclosure in the province. In about half of those cases, the defendants were black heterosexual men. Slightly more than three-quarters of all cases in Ontario ended with a conviction related to non-disclosure. Shime says that percentage A study by Betteridge and York " says Shime. that has made recommendations to the attorney general. They in- clude a call for specially trained prosecution teams in this area and increased education for police. In December 2010, then-at- preme Court indicated it would have convicted the woman who had an undetectable viral load and who was charged aſter her partner contacted police when he was ac- cused of domestic abuse except for the fact that the trial judge im- properly used hearsay evidence to conclude that the couple had unprotected sex on one occasion. That error that led the Supreme Court to set the conviction aside. The decisions have given the raise a reasonable doubt in the face of a prima facie case of decep- tion and deprivation. In its ruling in D.C., the Su- OctOber 15, 2012 • Law times Crown "a lot of leeway" to decide whether or not to prosecute in any specific case, says Isabel Grant, a University of British Columbia law professor. A legal paper writ- ten by Grant last year pointed out that in England there are prosecu- tions only when transmission has occurred unless there' an intent to transmit the virus. A conviction for aggravated sexual assault can occur in Canada with- out any HIV transmission. "This case increases the risk s proof of medication, will be criminalized for non-disclosure, to expensive increase the likelihood of inequal- ity in defending these cases, says Shime. "One of the problems with this decision is it favours people who are wealthy and have access to medical treatment," he says. Meanwhile, the Ontario Crown The Supreme Court rulings " says Grant. could rise given that the Supreme Court now requires a defendant to show evidence of a low viral load as well as use of a condom in order to raise a reasonable doubt that there was a "realistic pos- sibility" of transmission. "Once a complainant gets up and says, 'We engaged in unprotected sex,' under the new law that could be enough," says Shime. That would be the case unless the accused can meet what Chief Justice Beverley McLachlin referred to as the "tac- tical burden" on the accused to that vulnerable women, such as women who are not able to insist on condom use or women who don't have access may have to revise its stance in two HIV non-disclosure cases that were headed to the Court of Ap- peal in June of this year but were adjourned pending the top court decisions. In a factum filed with the Court of Appeal, Crown at- torney Kimberley Crosbie argued that anyone who' and has failed to disclose that fact has committed a sexual assault even if the person has a low viral load and has used a condom. The Crown also wanted to be able to lay a charge of sexual assault caus- ing bodily harm if the non-disclo- sure caused psychological harm to the complainant. s HIV positive LT 12-09-26 9:22 AM

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