We were there on Mabior. Mabior contemplated and was well aware of Ewanchuk. It was post-Ewanchuk, and they drew the line. Where they drew the line—you're correct—was where there was a realistic possibility of transmission or a significant risk of serious bodily harm. But I think the evidence you're hearing now is that since Mabior in 2012—and frankly to some extent at the time—the science already demonstrated, and it certainly does now, that one doesn't need both a condom and a suppressed viral load.
If the Supreme Court of Canada technically had used the word “or” instead of “and”, those two categories would have been precluded from prosecution—condom use or a suppressed viral load. In those circumstances, that would have been more in accord with the science, even as we understood it at the time in 2011-12.
Now as we understand the science even better, there are still prosecutions going on, certainly in Ontario, of people who have suppressed viral loads and don't use condoms, or who have suppressed viral loads and may or may not use condoms.
Those prosecutions are still going on. They're still actively happening in my office.