Top Five 2013: R v Mabior

Each year at OJEN’s Toronto Summer Law Institute, a judge from the Court of Appeal for Ontario identifies five cases that are of significance in the educational setting. This summary, based on these comments and observations, is appropriate for discussion and debate in the classroom setting.

R v Mabior, 2012 SCC 47, [2012] 2 SCR 584

Under the Criminal Code of Canada, a person with HIV is guilty of sexual assault if they fail to inform sexual partners of their HIV status and there is a realistic possibility of passing on the virus. Clato Mabior was charged with nine counts of sexual assault because he failed to disclose to his sexual partners that he was HIV-positive. He argued at trial that he was not guilty because his drug treatments reduced the concentration of the virus in his system to a level so low that there was no realistic chance of infection. In some cases he also wore a condom, further reducing the possibility of transmission. The central issue for the Supreme Court of Canada (SCC) in this case was under what circumstances withholding HIV-positive status before sex amounts to fraud and thus makes sex non-consensual. The full decision is available here.