SCC Case Information
Her Majesty the Queen v. Clato Lual Mabior
(Manitoba) (Criminal) (By Leave)
(Publication ban in case)
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch) for information purposes only.
(PUBLICATION BAN IN CASE)
Criminal Law — Offences — Elements of offence — Sexual assault — Whether failures to disclose HIV positive status before sexual intercourse with different sexual partners did not place those partners at a significant risk of serious bodily harm because the accused’s viral counts were lowered by antiretroviral therapy or because the accused used condoms.
The respondent was charged with ten counts of aggravated sexual assault (and other charges) because he had sex with different complainants without disclosing that he was HIV positive. An expert opined that antiretroviral therapy during the relevant time period reduced the respondent’s viral load such that the risk of transmission of HIV was probably low but possible during part of the relevant time period and that there was a very high probability that the respondent was not infectious during the remainder of the relevant time. The respondent also used condoms in some incidents. None of the complainants have contracted HIV. The trial judge convicted the respondent of aggravated sexual assault on six charges because no condom was used, without considering the respondent’s viral loads. The trial judge acquitted the respondent of aggravated sexual assault if a condom was used and viral loads were undetectable at the time of the assaults. The Court of Appeal set aside four of the six convictions and entered acquittals on the basis that sexual intercourse either using a condom or when viral loads are very low does not place a sexual partner at significant risk of serious bodily harm.