TORONTO - A man who is HIV-positive was convicted of three counts of aggravated sexual assault based on a legal standard that isn't in line with scientific evidence, his lawyers argued before Ontario's top court on Wednesday.
They are requesting that the Court of Appeal for Ontario overturn the three convictions or order a new trial for the man, identified by the initials N.G., based on evidence that proper condom use is enough to prevent transmission of the virus.
"It's clear the needle can be moved," Wayne Cunningham told the three-judge panel. "What we propose in this case is that fresh new evidence moves that needle."
In the trial, which ended in November 2017, court heard N.G. used condoms in sexual encounters with three women who consented without knowing his HIV status.
As it stands, common law holds that a person with a low concentration of HIV in the blood does not need to inform sexual partners of their status if they use a condom.
The trial judge found condoms weren't enough in N.G.'s case because he did not have a low viral load, raising potential doubt about the possibility of transmission despite wearing a condom.
Cunningham argued Wednesday that new evidence shows condoms are enough to prevent transmission and the common law should reflect that.
He argued a person with HIV using a condom should be obligated to inform their partner only if and when that contraceptive fails.
But Crown attorney Grace Choi argued that takes the wrong approach to the law.
"Whether there is a realistic possibility of HIV transmission should be a forward-looking estimate," she said, likening the approach to that of criminal law surrounding drunk driving and improper gun storage. In those cases, the risky behaviour itself is the crime, not the outcome of that behaviour, she said.
Improper condom use is more common than some might like to acknowledge, Choi said, and it's seldom on purpose.
"Human beings, being human, make mistakes," she said.
