R. v. Bear: HIV and the Hegemonic Construction of Risk in Criminal Law
January 2017, a Toronto Police officer said, “he's going to spit in your face, you're going to get AIDS.” The officer was referring to a detained man behind him as he admonished an onlooker for being too near the arrest, and directed the onlooker to stop recording the incident. The comment and arrest were recorded by the onlooker and reported by the press. The Toronto Police Service (TPS) subsequently rejected the officer's comment, stating that one “cannot get HIV/AIDS from spit.” The TPS said it would bring an outside expert in Human Immunodeficiency Virus (HIV) and Acquired Immune Deficiency Syndrome (AIDS) to educate officers, and said that an internal investigation was underway.
The arrest, and the threat to the onlooker, appeared emblematic of the same systemic discrimination recently recognised by the Ontario Human Rights Commission in a submission to the Independent Review of Police Oversight Bodies. Alexander McClelland also noted that the comment was consistent with historical and ongoing examples of discrimination effected against queer people. The content of the recording has raised many concerns about police practices; however, in addition to all of this, the derogatory comment reminded me of the complicity of the legal system in justifying the invidious treatment of those with HIV. Specifically, the comment returned the case of R. v. Bear to memory, in which an indigenous man with HIV was convicted of attempted aggravated assault by the Manitoba Court of Appeal because he attempted to spit in a police officer's face.
In Bear, the accused was arrested following an altercation with store security. The accused was placed in an interview room at police headquarters as officers conducted further checks. The accused spat in an officer's face when one of the officers returned to the interview room. The accused had earlier made comments about his HIV status while being transported from the scene of his arrest to headquarters. The saliva landed in the officer's eye, and on his nose and forehead. The police officer was subsequently taken to hospital and treated with post-exposure prophylactic drugs. The officer did not contract HIV. The accused was then charged with aggravated assault pursuant to s. 268(1) of the Criminal Code.
The trial judge acquitted the accused of aggravated assault. He was instead convicted of simple assault. The Crown appealed to the Manitoba Court of Appeal, which overturned the trial judge's decision and substituted a conviction of attempted aggravated assault for the conviction of common assault. All of this was accomplished in the absence of evidence that HIV can be transmitted by saliva, with the court noting the expert evidence of a medical professional:
Dr. Dillon [the medical expert on HIV and AIDS] also wrote a report that was introduced into evidence. The report discussed the risk of transmission by saliva alone or by saliva mixed with blood. He wrote that saliva itself may contain HIV virus particles, but is not considered to be a risk factor for HIV transmission. There is no conclusive evidence that transmission of HIV has ever happened from any exposure to saliva alone.
Despite this mere theoretical possibility of transmission, the Manitoba Court of Appeal was satisfied that the mens rea for the aggravated assault - the object of transmitting HIV through spit to cause significant harm - was complete. To be guilty of attempting an aggravated assault, the accused only had to possess the "intent to commit the completed offence [and have done] some act [that is] more than preparatory [...] in furtherance of [that] attempt". The physical impossibility of transmitting HIV by way of spitting could not defend against an offence of attempt, because it was immaterial whether transmission was possible:
It is immaterial whether he thought his saliva alone was sufficient to do so or he thought that the blood form the cut on his lip mixed with his saliva was sufficient to do so. It is immaterial that it was not a realistic possibility to transmit HIV in this way. His spitting at the police officer coupled with his comments that he had HIV, his threats and his hiding behind the door of the interview room show a completed mens rea along with action that was more than preparatory. The criminal element of attempt may lie solely in the intent.
In order to reach a conviction of attempted aggravated assault, the Court of Appeal had to situate the act of spitting within the jurisprudential germ line of R. v. Cuerrier and R. v. Mabior. Both these cases criminalised not only the actual transmission of HIV between sexual partners, but also the risk of transmission. In Cuerrier, the Supreme Court of Canada held that withholding HIV status from a sexual partner could vitiate consent and attract criminal culpability, specifically under the sexual assault provisions of the Criminal Code. The Court held that consent would be vitiated for fraud where there was: (1) dishonesty in the accused’s failure to disclose HIV status, which would be judged according to whether the reasonable person would find the person dishonest; (2) the deprivation of sexual partner’s opportunity to obtain knowledge that would have caused the sexual partner to refuse sexual relations; and (3) exposure to significant risk of serious bodily harm.
What constitutes exposure to significant risk of serious bodily harm was defined later in R. v. Mabior, where the accused failed to disclose his HIV status to multiple sexual partners. None of the complainants acquired HIV, but nonetheless he was charged with aggravated sexual assault. The Supreme Court of Canada found that the accused satisfied the first two parts of the test set out in Cuerrier. With respect to the third part, the Court held that serious bodily harm was “the hurt or injury that interferes with the integrity, health, or wellbeing of a person in a substantial way.” Actual transmission of HIV constituted serious bodily harm. Where actual transmission had not occurred, as was the case in Mabior, significant risk could be found where there was a realistic possibility of transmission. Realistic possibility of transmission depended upon both the degree of harm and risk of transmission, which was to be assessed on a case-by-case basis. In this case, a realistic possibility of transmission was negated because: (i) the accused’s viral load at the time of sexual relations was low; and (ii) condom protection was used.
Relying on this jurisprudence, the Court of Appeal stated in Bear that the risk of transmission could, in certain circumstances, endanger life satisfying the legal definition of aggravated assault. This would arise whenever there was a "realistic possibility" of transmission - even outside sexual contexts - an assessment of risk to be determined on a case-by-case basis. The fact that the risk of HIV transmission was merely theoretical, a speculative risk falling far below the threshold of a realistic possibility, only accounted for a failing link in the chain of constituting elements of the offence. The virtual impossibility of transmission thereby amounted to an intervening event in the arc of the criminal act. In this way, the Court of Appeal equated the impossibility of transmission to the hypothetical case of the unsuccessful umbrella thief, discussed in United States of America v. Dynar, who mistakes his own umbrella from an umbrella stand intending to steal the umbrella of another person. Significantly, what the Manitoba Court of Appeal failed to appreciate was that the potential harm of losing an umbrella was speculative but could have been real but for the intervening mistake. The harm of acquiring HIV from the act of spitting was not only speculative but, as evidenced by the expert testimony, it was also imaginary.
Cuerrier and Mabior have been subject to a surfeit of critique, but Bear, through the law of attempt, takes the logic of their defects to the extreme. Criminalising exposure to HIV, or the risk of transmission, does not relate to the probability of transmitting HIV. Nor does criminalisation relate to the harm posed by HIV. According to a mounting number of critics, Cuerrier and Mabior depend on exaggerated articulations of risk and of harm that fail to accord with consensus among medical experts in HIV and AIDS. In Bear, the risk and harm was not only overstated but imagined. The body of Bear was imagined replete with disease, so virulent that infection could extend beyond physical limits. In this way the Court of Appeal used the law of attempt as a device of metonymy, displacing the un-dangerous act of spitting and filling it with unrelated, criminal meaning. The Court of Appeal extirpated Bear's humanity by isolating his HIV status and infusing his every act with its affliction, constructing him as an infectious sac of hazards to be inoculated by the legal system. The hegemony at play in Bear - constructing a homogeneous narrative (e.g., virulent body as significant risk and life-threatening harm) through rhetorical devices of metonymy and metaphor notwithstanding a complex panoply of constitutive features - is not different in kind from Cuerrier and Mabior, but extends the reach of criminal law, and the full weight of the corresponding penal institutions, to more bodies irrespective of actual risk and harm.
The mere theoretical possibility of transmission at play in Bear underscores the role of hegemony in justifying and perpetuating the criminalisation of HIV non-disclosure and transmission cases. It shows the extension of Cuerrier and Mabior to more bodies - especially Indigenous, queer, and black bodies - by totalising the condition of HIV as equivalent with their identity. As we have conversations about systemic discrimination in the Toronto Police Service - with respect to race, queers, and HIV - we should also consider how the criminal law is complicit and in desperate need of reform.
*Student-at-Law at the Office of the Information and Privacy Commissioner of Ontario; LL.M. (Dalhousie), J.D. (Manitoba), B.Sc. Hons. (Manitoba). Comments and opinions contained herein are his own and should not be attributed to the Information and Privacy Commissioner of Ontario or the Commissioner's office.
 “Suspect facing 9 charges after allegedly punching officer, sparking violent arrest caught on video” City News (January 25, 2017) online: <http://www.citynews.ca/2017/01/24/suspect-facing-9-charges-after-allegedly-punching-officer-sparking-violent-arrest-caught-on-video/>. Note that Human Immunodeficiency Virus (HIV) enters the human body and takes over T-Cells critical to the integrity of the immune system. The virus utilises the T-Cells for reproduction, multiplying the amount of virus in the body, before destroying the cell. It causes significant illness due to a severely compromised immune system. Untreated HIV can progress to Acquired Immunodeficiency Syndrome (AIDS) when there is a low count of T-Cells, or when particular cancers, or one or more opportunistic infections have taken place. Anti-retroviral therapies can keep the viral level low, staving off the HIV progression to AIDS. As discussed above, HIV is spread from the exchange of bodily fluids between an HIV-positive individual (a person with HIV in their body) and a HIV-negative individual (a person without HIV in their body). Sexual intercourse is one way to transmit the virus because of the primacy of bodily fluid exchange. It is also possible to obtain it through needles, blood transfusions, or wherever the blood of a seronegative person might come in contact with seropositive blood. Given the capacity for serious bodily harm, knowingly transmitting HIV has been crimanalised in numerous jurisdictions. Generally, if a jurisdiction does criminalise, it is an offence to fail to disclose HIV status to a sexual partner. The exact manner in which that failure to disclose is criminalised varies across jurisdictions. Some jurisdictions require actual transmission of HIV for non-disclosure to constitute an offence (e.g., United Kingdom), whereas the presentation of risk of transmission is enough to satisfy others (e.g., Canada). Other jurisdictions criminalise the mere failure to disclose regardless of the risk presented (e.g., Nigeria).
 Ontario Human Rights Commission, “OHRC Submission to the Independent Review of Police Oversight Bodies” (15 November 2016) online: <http://www.ohrc.on.ca/en/ohrc-submission-independent-review-police-oversight-bodies>.
 Alexander McClelland, “Toronto police's long history of stigmatizing people with HIV” Now Toronto (30 January 2017) online: <https://nowtoronto.com/news/toronto-police-long-history-of-stigmatizing-people-with-hiv/>.
 R v Bear, 2013 MBCA 96 at para 51, 299 Man R (2d) 175.
 Ibid at para 69.
 Ibid at para 73. Note that the insufficiency of actus reus is typical of “attempt” offences, generally. In a case of attempted murder, as long as an individual had the intent to kill and attempted to commit the act necessary to bring about that death, it would not matter if the victim was dead by other means before the accused fired his gun. The law still considers them morally blameworthy on some level despite the physical impossibility of causing death to an individual who was already dead. However, for reasons that will become clear later, the use of an attempt offence in the context of Bear bore an exceptional feature given its context with HIV.
 R v Cuerrier,  2 SCR 371, 162 DLR (4th) 513; Criminal Code, RSC, 1985, c C-46. Section 265 (Assault) states: “(1) A person commits an assault when (a) without the consent of another, he applies force intentionally to that other person, directly or indirectly; … (3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of (a) the application of force to the complainant or to a person other than the complainant; … (c) fraud; …”. Section 273 (Aggravated sexual assault) states: “(1) Every person commits an aggravated sexual assault who, in committing a sexual assault, wounds, maims, disfigures, or endangers the life of the complainant.”
 Cuerrier, ibid.
 R v Mabior, 2012 SCC 47,  2 SCR 584.
 Ibid at para 82.
 See United States of America v Dynar,  2 SCR 462 at para 67, 147 DLR (4th) 399, cited with approval in Bear, supra note 5 at para 70.
 See e.g., Isabel Grant, “The Boundaries of the Criminal Law: The Criminalization of the Non-Disclosure of HIV” (2008) 31 Dalhousie LJ 123; Kyle Kirkup, “Releasing Stigma: Police, Journalists, and Crimes of HIV Non-Disclosure” (2015) 46 Ottawa L Rev 127; Carissima Mathen & Michael Plaxton, “HIV, Consent and Criminal Wrongs” (2011) 57:4 Crim LQ 464; Alexander McClelland, “Research at the medico-legal borderland: perspectives on HIV and criminal law” (14 October 2013), Somatosphere: Science, Medicine, and Anthropology, online: <http://somatosphere.net/2013/10/research-at-the-medico-legal-borderland.html>; Eric Mykhalovskiy, “The Problem of 'Significant Risk': Exploring the Public Health Impact of Criminalizing HIV Non-Disclosure” (2011) 73:5 Social Science & Med 668.
 For e.g., Ernesto Laclau, “Articulations and the Limits of Metaphor” in The Rhetorical Foundations of Society (London, UK: Verso Books, 2014) at 74-78; Ernesto Laclau, “The Politics of Rhetoric” in The Rhetorical Foundations of Society (London, UK: Verso Books, 2014) at 80-86; Kaja Silverman, The Subject of Semiotics (New York, NY: Oxford University Press, 1983) at 108-122.