The Nova Scotia Court of Appeal in Halifax has overturned the conviction of an HIV-positive man who failed to disclose his condition to sexual partners.

Claude Allan Thompson was convicted of two counts of sexual assault causing bodily harm for having unprotected sex with two women in December 2011. He was sentenced to 30 months in prison and his name was put in the National Sex Offender Registry.

But Thompson appealed his conviction and in the course of preparing for the appeal, the Crown acknowledged that the trial judge made a mistake in convicting him.

At his trial, the Crown argued that had they known Thompson's HIV status, the two women who were the focus of the original charges would never have consented to have sex with him. The Crown argued the fact he deceived them meant their consent was not valid.

Both of the women, whose identities are protected by a publication ban, were tested for sexually transmitted diseases after police informed them of Thompson's situation. Neither woman developed HIV. One of them testified that Thompson used a condom with her, further reducing the risk of infection.

Risk of infection was low

The Crown argued during the trial that the emotional stress of not knowing whether they had become infected amounted to bodily harm under the Criminal Code.

However, expert testimony showed that the risk of infection was extremely low because Thompson was taking treatment and his "viral load" was low.

"Failure by a sexual partner to disclose that he or she has a sexually transmitted disease is morally reprehensible, but it is not usually a crime," Justice Duncan Beveridge wrote for the three-member appeal panel in the decision to quash Thompson's convictions.

The court also said that recent rulings by the Supreme Court of Canada have refined the issue of consent in cases where sexually transmitted diseases are a factor.

"Emotional stress or upset, even if they could legitimately amount to bodily harm within the meaning of the Criminal Code, are, in the eyes of the law, irrelevant," Beveridge wrote.

"Worry, stress, anger are natural emotions on learning of unwittingly being exposed to HIV," he wrote. "But absent a significant risk of serious bodily harm, satisfied by actual transmission or a realistic possibility of transmission, consent is not vitiated."

Various AIDS and HIV lobby groups were granted intervenor status in this case.