The Supreme Court of Canada has ruled it is not always a crime for people with HIV to not disclose their HIV status to their sex partners -- as long as they have a low level of the virus and wear a condom.

The ruling still leaves open the possibility that charges could still be laid against those who are reckless and who fail to take steps to avoid transmitting the potentially fatal virus.

In deciding two cases -- one in Manitoba and one in Quebec -- the court clarified a ruling it made in 1998 on the issue of HIV disclosure. Under that ruling, those who failed to disclose their HIV status could be charged with sexual assault or aggravated sexual assault if there was "a significant risk of bodily harm."

But the court said Friday there have been huge advances in HIV management since then. Those advances include antiretroviral medications that can keep levels of the virus so low, they are almost undetectable.

The court said as long as the HIV carrier has a "low load" of the virus and wears a condom, they are not legally obligated to inform their sex partners of their status. It said convictions would be warranted only if there were "a realistic possibility" of transmission.

"On the evidence before us, a realistic possibility of transmission is negated by evidence that the accused's viral load was low at the time of intercourse and that condom protection was used," Chief Justice Beverley McLachlin wrote on behalf of the court.

The court left open the possibility of further refinements to the law in the future.

"However, the general proposition that a low viral load combined with condom use negates a realistic possibility of transmission of HIV does not preclude the common law from adapting to future advances in treatment and to circumstances where risk factors other than those considered in the present case are at play."

Prosecutors from both provinces wanted the court to rule that all HIV carriers should be legally compelled to inform their partners -- regardless of the risk of passing on the virus.

Both sides of the debate agreed that the 1998 ruling has been interpreted in wildly different ways by judges across the country, and wanted the court to offer guidance on courts should proceed with such offences.

The cases before the court

In Friday’s ruling, the Court acquitted a Quebec woman of aggravated assault after she had sex with her former spouse while her viral load was undetectable. The court agreed with a lower appeal court ruling, which said she had not exposed the man to “a significant risk of serious harm.”

But the court restored four aggravated sexual assault convictions against a Manitoba man named Clato Mabior, who had sex with four women and girls because although his viral load was thought to be low, he didn’t wear a condom in many of the sexual encounters.

“Here, the four complainants all consented to sexual intercourse with M, and testified that they would not have had sex with him had they known he was HIV positive,” the court noted.

But it dismissed the charges laid involving a fifth woman, because in her case, he did wear a condom.

None of the women and girls contracted HIV.

HIV advocates disappointed by ruling

Richard Elliott, the executive director of the Canadian HIV/AIDS Legal Action Network says the ruling is not good news for those living with HIV. He says it's disappointing that the court decided that even the use of a condom doesn't protect a person with HIV from prosecution.

“The court on the one hand is saying we’re not going to use the criminal law to criminalize every single risk, however small. But in effect, that is what they have done,” Elliott told CTV News Channel after the ruling.

Elliott says the risk of a man transmitting HIV to a woman during unprotected vaginal sex is estimated at 0.08 per cent. Those on antiretroviral medications have only a one in 100,000 per cent risk, or 0.00001 per cent, he says.

“Should we be using aggravated sexual assault -- this is the law of rape – when we’re talking about a risk that is somewhere in the order of one in 100,000?” he wondered.

He added that it should not be left to police and the courts to try to prevent the spread of HIV.

“Let’s look at the evidence that shows that having this kind of overly broad use of the criminal law actually doesn’t lead to safer sex… it doesn’t lead to disclosure,” he said.

The only things that do work, Elliott said, are practising safer sex and having a lower viral load.

“We can’t expect after-the-fact criminal prosecutions are going to protect people. People have to take a certain amount of personal responsibility here,” he said.

Elliot contributed to his argument on PowerPlay on Friday.

He laid the responsibility on prosecutors handling individual cases or attorneys who he says do not have to be complacent with the use of this criminal law. He hoped they would work in the public interest and pay attention to science.

Elliot also referred to the judgement as having “real troubling inconsistencies and contradicitons.”

In theory Elliot said this significant risk test should apply to other sexually transmitted infections, but compared to more than 150 prosecutions against people living with HIV in Canada, there have only been five other non-HIV cases.

“It is by no means a positive judgement for people living with HIV,” Elliot said.

“The HIV fear is driving this problematic interpretation of the law,” he said.