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Canada: Supreme Court makes bad HIV disclosure law worse

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2 Comments

Tim

Very nice treatise, but is it possible that the overall spirit of the ruling reflects a change in heart which is far more generous than America's draconion "DISCLOSE DISCLOSE DISCLOSE" doctrine or humiliation and segregation?

October 27, 2012

Richard Elliott

Edwin, This post does a succinct job of highlighting some of the key problems with this judgment. We and the other AIDS organizations that intervened before the Supreme Court were quick to carry this message to media from the moment we had our hands on the judgment. But we indeed spent half of our time just trying to correct the confusion sown from the outset by ill-informed, sloppy media reports that read as if the writers had failed to even spend the time to do any homework in advance of the ruling to understand what the law had previously been - notwithstanding ALL the background information provided by the Legal Network and easily available online with a few moments of searching. Not only did many reporters and readers fail to understand the state of the law before this judgment, the dominant reaction seemed to be either (a) anger that the SCC had not "upheld" a blanket obligation to disclose (which, as you point out, was not the law previously), or (b) misunderstood this as a "victory" for AIDS advocates and people living with HIV - which is most assuredly is not. The most significant result of this judgment is that the Court has backtracked on previous cases suggesting, or accepting definitively, that condom use alone suffices to remove the obligation to disclose HIV+ status. What we had been partially successful in establishing in the law through previous interventions is now lost. A final point of clarification: it was reported, correctly, that "DC", the woman living with HIV, whose case was one of the two heard and decided together, was ultimately acquitted of the aggravated sexual assault charge. But it is very important to note that this was solely on the (correct) basis that the trial judge had engaged in illogical speculation and drawn unwarranted conclusions from one small item of evidence, on which the entire decision to convict her was based. If there had not been this screw-up in the judge's use of the evidence, DC would have been convicted on the test now set out by the Supreme Court of Canada because an undetectable viral load alone is not deemed legally sufficient to avoid conviction for non-disclosure. For more background on the cases, readers may be interested in the material at www.aidslaw.ca/stopcriminalization. And a more detailed synopsis will be forthcoming soon from the Legal Network, now that the media frenzy has subsided for the moment. Richard Elliott Executive Director Canadian HIV/AIDS Legal Network www.aidslaw.ca

October 15, 2012

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