HIV Non-Disclosure and the Criminal Law

Canada is often cited internationally as a country that uses criminal law in cases where a person with HIV does not disclose that status to a sexual partner. There is no offence specifically about HIV in the Criminal Code. Prosecutions have instead relied on general offences, mainly sexual assault provisions, and the scope of the law has been shaped by Supreme Court of Canada decisions.

The subject involves law, medicine and public health, and it remains a matter of public debate.

The legal framework

Under Canadian law, valid consent to sexual activity is voluntary and informed. In R v. Cuerrier, decided in 1998, the Supreme Court held that failing to disclose HIV-positive status can invalidate consent when the omission exposes a partner to a significant risk of serious bodily harm. Charges in these cases have usually been sexual assault or aggravated sexual assault, the latter carrying a much heavier potential sentence and, on conviction, registration as a sex offender in some circumstances.

In 2012, in R v. Mabior and a companion case, the Court refined the test. It held that a realistic possibility of transmission is the threshold for a duty to disclose. It also found that a low viral load combined with condom use negated that realistic possibility on the evidence before it, so the duty did not arise in that situation.

The medical evidence

Antiretroviral therapy can reduce the amount of virus in the blood to levels that laboratory tests cannot detect. Large international studies have found that people who maintain an undetectable viral load do not transmit HIV sexually, a conclusion now widely accepted by public health bodies and often summarized as undetectable equals untransmittable. Physicians and researchers in Canada, including HIV specialists in British Columbia, have argued that this evidence supports a smaller role for criminal law.

Points of debate

• Supporters of prosecution stress sexual autonomy and the right of a partner to make informed choices.
• Critics, including many public health and community organizations, argue that criminalization can discourage testing and may add stigma.
• Some legal scholars favour limiting prosecutions to cases involving intentional transmission.
• Others point out that case law has not yet fully reflected the scientific consensus.

Prosecutorial guidance

Because criminal law is applied by provincial prosecutors as well as federal ones, practices can differ across the country. Governments and justice departments have reviewed the issue and issued guidance on when charges are appropriate, and the policy discussion continues.