TORONTO -- Ontario's highest court has overturned sex assault convictions in the cases of two HIV-positive men in light of clarified rules on disclosure from the Supreme Court.
Lester Felix was convicted in 2010 of five counts of aggravated sexual assault and one count of sexual assault after having sex with two women and not telling them he was HIV-positive.
Yonatan Mekonnen was convicted in 2009 of two counts of aggravated sexual assault in relation to two different women for not disclosing his HIV--positive status.
Both men argued their convictions should be overturned in light of a landmark ruling last year from the Supreme Court of Canada about HIV disclosure.
The high court ruled that people with HIV do not have to inform sexual partners of their status as long as they have a low viral load and they wear a condom.
The Court of Appeal for Ontario ordered upheld Felix's aggravated sexual assault convictions but ordered a new trial on the sexual assault count.
In that instance of sexual intercourse the woman testified that Felix did use a condom. But there was no evidence at trial about what Felix's viral load was at the time of that intercourse.
Since the Supreme Court test requires both a low viral load and condom use to negate a "realistic possibility of transmission," the Appeal Court opted to send the case back for a new trial.
The Appeal Court ordered a stay for Mekonnen's convictions, which essentially means the charges are dismissed, though they can be reactivated within a year.
"The appellant has fully served and complied with all components of his sentences," the Appeal Court wrote in its decision released Friday.
"The appellant has been engaged in the appeal process for about three years, with the ever-present stigma of his convictions throughout."
