The Implications of Mabior for people living with HIV, Part 3

In R v. Mabior, the Court imposed a heavy evidentiary burden on the accused with HIV for avoiding criminal liability: low viral load and condom use. Part 1 of the blog series summarized the judgment; part 2 of the blog series explored how the case may deter people from getting tested and knowing their HIV status.  This evidentiary requirement may pose difficulties to people living with HIV, rather than clarity. Part 3 of the series discusses the inherent evidentiary difficulty in proving condom use for the accused.

THE “HE SAID, SHE SAID” PROBLEM IN PROVING CONDOM USE 

Typically, no witnesses other than the accused (living with HIV) or the complainant (the partner) could testify on the issue of condom use. When the testimonies vary between the complainant and the accused, courts will often favour the complainant’s version of the testimony.

For example, in R c. D.C. D.C. disclosed to her doctor that there was a condom used but it broke, after an initial encounter. The trial judge did not trust D.C.’s testimony about the existence of condom use, and inferred from her doctor’s records that D.C. must have lied about condom use, and instead believed her ex-partner’s testimony about there being no condom use. The court’s ability to summon D.C.’s private consultation with her physician as incriminating evidence against her raises serious concern about a patient’s relationship with the health provider.

Even though the Supreme Court eventually acquitted D.C.’s case, it did not change the evidentiary burden of proving condom use. This means that a court still has the ability to access confidential documents like a doctor’s records in a criminalization case to use it against the person living with HIV. This violation of confidentiality of the patient’s records could further deter PLHs from discussing their health concerns or seeking out treatment, since their private consultations with a doctor may be used against them later in court.

This post is a part of a longer essay submitted for the seminar “Issues in Human Rights” at McGill Faculty of Law and is republished with the instructor’s permission.

REFERENCES:

R v Mabior, 2012 SCC 47.

R c D.C., 2008 QCCQ 629.

R v D.C., 2012 SCC 48.