Top court to review HIV sex law

The Supreme Court of Canada said Thursday that it would hear an appeal in a case of a Quebec woman who, according to court records, didn't tell her former spouse she had HIV before the two had unprotected sex.

That appeal will be heard with an appeal arising from a similar case in Manitoba, the court announced.

The court did not provide reasons for agreeing to hear the Quebec case. The Supreme Court does not usually provide reasons for granting or denying leave to appeal.

In both cases, the two HIV-positive people had levels of the virus — or viral load — that were so low when they had unprotected sex that medical tests couldn't detect the infection. Those levels, experts told the court, were low enough that they created very low possibility of transmission, which two appeal courts ruled didn't meet the test of being a significant risk to claimants in both cases.

In the Quebec case, the court was told that when the viral load is undetectable in a woman, the risk of infection was 1 in 1,000 during unprotected sex, and between 1 in 50,000 or 100,000 if a condom is used.

The Supreme Court will be asked to decide what levels of the virus in a person's system is high enough to constitute a serious risk of harm.

Lower court judges have asked the Supreme Court to review its own test for what constitutes a serious risk because of the advances in the medical fight against HIV that reduce, but don't completely eliminate, the risk of infection. "Issues of condom usage and viral load raise difficulties of proof perhaps not contemplated or even known when the Supreme Court developed the test," Judge Freda Steel wrote for the Manitoba appeals court in 2010. "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 the Quebec case, Judge Jacques Chamberland wrote for the appeals court that federal politicians should also be looking at the issue. "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."