A man who allegedly failed to disclose his HIV status to a sexual partner, thereby violating the Criminal Code, made a brief court appearance in Yellowknife Tuesday.
HIV non-disclosure cases refer to instances involving the “transmission, or exposure to the realistic possibility of transmission of HIV through sexual activity,” according to the Government of Canada.
The Criminal Code describes an aggravated sexual assault as a sex assault that, during its commission, “wounds, maims, disfigures or endangers the life of the complainant.”
Kaotalok is alleged to have committed the aggravated sexual assault against the woman on Aug. 27 in Yellowknife. He received a three-and-a-half-year sentence in 2013 after pleading guilty to two counts of the same offence, aggravated sexual assault. Kaotalok was also charged after having sexual contact with two victims he met in Yellowknife between 2009 and 2010.
But Kaotalok could see his charge dropped or downgraded due to new federal guidelines for prosecuting HIV non-disclosure cases.
In 2012, the Supreme Court of Canada ruled that law requires a person to disclose HIV positive status “before sexual activity that poses a ‘realistic possibility of transmission,’ so that the HIV negative sexual partner has the opportunity to choose whether to assume the risk of being infected with HIV,” according to the federal government’s website.
But on Dec. 1, the 30th anniversary of World AIDS Day, Canada’s justice minister Wilson-Raybould issued a new directive under the Public Prosecution Service of Canada related to the prosecution of HIV non-disclosure cases.
The new guidelines draw from the most up-to-date evidence-based science on the risks of sexual transmission of HIV, according to the federal government.
The directive acknowledges that the “over-criminalization of HIV non-disclosure discourages many individuals from being tested and seeking treatment and further stigmatizes those living with HIV or AIDS,”while still recognizing that non-disclosure is “first and foremost a public heath matter,” states the Government of Canada’s website.
Prosecutors are now directed to weigh certain factors when considering whether or not to prosecute a non-disclosure case, including aspects of an accused’s circumstances that may lower his or her blameworthiness.
Crown attorneys are advised, under the directive to “generally not prosecute where the person has not maintained a suppressed viral load but used condoms or engaged only in oral sex or was taking treatment as prescribed unless other risk factors are present, because there is likely no realistic possibility of transmission in such cases.”
Prosecutors must now also consider whether a person living with HIV has “sought or received services from public health authorities, in order to determine whether it is in the public interest to pursue criminal charges.”
The Crown, according to Ian Mahon, the territory’s chief federal prosecutor, will adhere to the new directive when reviewing Kaotalok’s case – and all other HIV non-disclosure cases moving forward – to determine whether or not to prosecute.
“The directive is, obviously, an important aspect of consideration when we’re viewing the reasonable prospect of conviction and it will be taken into account in all the appropriate cases,” said Mahon.
Mahon said the Crown is waiting for further disclosure about the case, including forensic reports, before deciding whether to prosecute the accused – as prosecutors do in every case.
“We assess every case based on the available disclosure and if the available disclosure dictates A that we proceed or B that we not, we don’t have a reasonable prospect of conviction, then additional disclosure always effects the way we assess the case.”
“Every case is going to turn on its factual circumstances and its medical circumstances as well,” he added.
Mahon wouldn’t specify exactly what information the Crown is waiting for, but said he expects to receive the disclosure ahead of Kaotalok’s next court date on Feb. 5.
“If there’s a material change we can bring it forward. If not we’ll see what happens on the fifth.”
In public court transcripts of the 2013 sentencing, Justice Louise Charbonneau addresses Kaotalok’s adherence to medical treatment, saying there were periods when he would follow a regimen and periods when he wouldn’t. At the time of the offences that led to his 2013 convictions, Charbonneau said Kaotalok wasn’t making following a strict treatment plan she called “crucial,” making his condition worse and advancing the infection. This, she said, impacted the risk of transmitting HIV to others.
Both of the female victims in the 2013 case did not know Kaotalok was HIV positive, he didn’t inform them of his status and they wouldn’t have consented to sexual contact had they known. He wore a condom during at least one of the encounters. The second victim, along with Kaotalok, couldn’t remember if he used protection.
In 2013, Charbonneau noted Kaotalok is believed to have been infected with HIV at birth. Despite the “tragedy” that befell Kaotalok, she said he “created a risk for these people to suffer the same fate he did in a way – to be infected by this virus without having any control or any ability to protect themselves from that risk.”