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Lawyer raises the spectre of dangerous offender status in HIV case


Lawyer raises the spectre of dangerous offender status in HIV case

The lawyer for the accused, Delinda Hayton, stands in front of Ottawa's Elgin St Courthouse. IMAGE 1 OF 1
Bail granted, but accused will be handed over to police in southern Ontario
After spending more than two months behind bars, a 29-year-old Ottawa man accused of failing to disclose his HIV status before having sex was granted bail by an Ottawa court on Monday. 

Because the accused has an outstanding warrant for his arrest in Kitchener, he will remain in custody until he is transported to southern Ontario to face another three charges of aggravated sexual assault based on complaints from two men and one count of breaching his probation conditions.

The accused and a 24-year-old poz Kitchener man are charged with assault after the two poz men allegedly had a foursome in Kitchener and did not disclose their health statuses.

Outside of the courtroom, the accused’s lawyer, Delinda Hayton, discussed how, if convicted, the Crown could seek for the accused to be labelled a dangerous offender. If that happens, he could potentially be given an indeterminate prison sentence. But, she says, that is something the Crown must prove is necessary in court.

The move would be unusual, she says, because labelling someone a dangerous offender “is not usually asked for when the person has no record [of the same nature],” says Hayton.

Hayton says a Waterloo bail hearing is expected to determine if the accused will really be released.

“Waterloo Police will be picking up [the accused] shortly,” says Hayton, adding that a court proceeding to determine whether he will be released from there will happen.

“I would be surprised if the Crown consented to releasing him in Waterloo.”

Evidence and arguments heard at a bail hearing are protected by the court and cannot be reported. The court set bail conditions, which are public.

The conditions included a proviso that he live with his mother, an hour’s drive outside of Ottawa. A $5,000 bond was sought with the accused’s mother as surety.

If and when he is released from Kitchener, he will also have to follow these conditions:
  • Have no association with any of the six complainants or be within less than 500 metres of their employment, residence or anywhere they may be
  • Abstain from alcohol
  • Not leave home without the presence of his mother or sister
  • Not have any weapons
  • Go to the Sandy Hill Community Centre for an alcohol assessment and undergo an outpatient assessment for alcohol dependency
  • Surrender his passport to the police within 48 hours of release
  • Have no access to a cell phone or pager
  • Not access the internet or use computers
  • Continue HIV treatment with his doctor
The accused was arrested May 6 after an 18-year-old Ottawa man told police he contracted HIV after the two had unprotected sex several times in January. A total of six complainants have come forward. He is currently facing 21 charges, including four counts of aggravated sexual assault, three counts of sexual assault, four counts of attempt murder, four counts of administering noxious substance and six counts of breaching probation.

Although the accused’s name has been released, Xtra has so far declined to report it.

The accused is scheduled to be in Ottawa court again on August 9.
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Being Demonized and NOT Catholic
I could tell a tale of how the FEAR of HIV and the stigma which it carries can be intentionally used against someone. If particularly hard-pressed and you MUST make FALSE allegation against someone its very easy to fabricate, manipulate and destroy another persons life. One mere suggestion that an individual is HIV pos and the slurs, discrimination, and intimidation sets the tone for a flood of lies and deceipt as these people can be reported to be "irrational, overly emotional, out of step with reality and so dangerous that they LAW and PSYCHOLOGISTS would recommend this Person Standing In front of them honestly should be punished like a criminal for years with their Charter of Rights maliciously and relentlessly abused by Power and those "declaring" and "alleging" for their own personal and financial gain. If its that easy to manipulate perceptions then we best all consider it less of a Crime than a situation of honesty. Otherwise each breach of honesty is a crime? Who is the criminal there? HIV is also more hetersexually infected over the gay community as I've learned recently so why do we see so much Publicity when there are gays involved with HIV, there is just as much of it in the heterosexual community. While here let's ditch the term Marriage and go with UNION. Consider for example, my new partner & I stand at the altar of TRUTH UNITED for our Family Values.
Undetectable VL is not a substitute for no condom!
Jaysen you're comment stating you would feel safer having unprotected sex with an undetectable VL versus someone in the window period who is highly infectious, albeit technically safer, is really a non sequitur. Why would any sane person put themself in the line of fire in either scenario? Your reasoning is flawed. I don't get these young men just listening to the half-ignorant/half-horny advise of their older boyfriends reassuring them that "everything will be ok" since they are as of their last lab test undetectable? Just damn foolish and naive.
re: Marc: I still do not get it
I'm concerned with the statement that the "Only way to be totally safe 24/7 is to do the new quick saliva test and take it from there". Firstly, I am not sure that the quick saliva test is approved for use in Canada but even if, a blood test is still required to confirm whether one is HIV positive or negative. Regardless, there is a significant window period of anywhere from 20 days to 3 months or more before HIV antibodies can be detected in a person recently infected. Therefore a HIV test result can show a negative reading in someone recently infected and during this window period they are actually at more risk of transmitting the virus since recently infected inidviduals have an abnormally higher HIV viral load and are in one of the most infectious periods of HIV disease progression. If you are going to rely on testing as a means to make informed choice of sexual partners and activities then more than one test is required with a minimum of 3 or 4 months of not engaging in any HIV risk activities between tests. I'd feel safer with someone known to be HIV positive who has an undetectable viral load than with someone who may mistakenly believe they are HIV negative but are actually acutely infectious. Open communication and honesty in discussing HIV without fear of judgement and recrimination is a good start in the fight to eradicate this disease ... An old bumper sticker I once saw read "FIGHT HIV NOT HIV POSITIVE PEOPLE"
RE: Paul
Well thoughtful questions posed and an interesting scenario. In effect you have answered you're own question when you detailed the situation of a Dr performing surgery. What alot of people who are against using laws with regard to HIV exposure or transmission contend is that there are other avenues that would be just as effective in seeking some form of recourse. Indeed using Public Health Units, and civil law proceedings is EXACTLY what alot of us would prefer. Proving that a Dr was negligent is one thing proving that an event was manslaughter is a completely different ballgame. Indeed a LEVEL OF FAIRNESS is exactly what some of us are advocating for.
Why Protect An Alleged Sexual Predator?
It is important to point out two things here, which so far have been neglected to be highlighted: 1) Not everyone in the gay community is HIV positive, and hence, we don't all see the issue of the criminalization of HIV transmission from the same perspective; and 2) What about the choice and the rights of the HIV negative party?

To me this accused individual is little more than a sexual predator, who made the conscious decision to withhold critical information from his sexual partners, which in the eyes of the law precluded those people from making a fully informed choice. If your doctor or surgeon performed a procedure on you without giving you the entire list of possibilities, you would have a little something called grounds to sue for malpractice, not to mention complain to the college of physicians and surgeons for professional incompetence. So, my question is, why do those in the HIV positive community hold themselves to a lower level of fairness, choice and equality? You all demand it, but who gives it?
I still don't get it....
Face it, we all know guys will go to quite an extent to get laid. Lie, fib, brag, lie again, pretend to be whatever type of fantasy-style sex partner, lie about where they are from, name. Everything if they have to. So how would you know what is true? Only way to be totally safe 24/7 is to do the new quick saliva test and take it from there. At the very least you have someone to lean on and be completely honest with. That is called a relationship. The rest is random bathhouse sex. Take it or leave it.
Comment removed
Just a reminder: when posting a comment on Xtra.ca, please use your own name or an alias in the "Name" field. Thanks, Brent Creelman, managing online editor
Thank you
I only wanted to thank Xtra on taking the stance not to disclose this persons identity.
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