Clarifying Laws of Sexually Transmitted and Blood Borne Infections - Cole McClelland

Criminal law has a storied history with the bedrooms of Canadians. Sexual assault is an incredibly complex topic both in a formalistic legal sense and in the practical application of precedents. Moreover, the applications and interpretations of Criminal Code provisions around sexual assault are ever-evolving. Sexually transmitted and blood borne infections (“STBBI”) have an interesting place within this discourse and open the door to some legal questions yet to be truly settled when it comes to disclosure.

What I will seek to establish here is how the Supreme Court of Canada (“Court”) has ruled on the specific issue of non-disclosure of a serious STBBI to a partner and how it has been extended to “lesser” infections. This provides a basis for weighing the pros and cons of settling these claims through civil or criminal procedure, looking at some fundamental concepts of victim satisfaction.

HIV and assault in R v Cuerrier

The most consequential and thus best documented STBBI’s are human immunodeficiency viruses (“HIV”). Being that the resulting acquired immunodeficiency syndrome (“AIDS”) seriously impacts the lives of individuals to the point of being life-threatening, criminal law has stepped into what is normally a public health matter.

R v Cuerrier (“Cuerrier") is an important case as it provides a set of criteria to determine if the failure to disclose one’s HIV-positive status constitutes fraud, which would vitiate any consent in a sexual act and therefore constitute assault. In Cuerrier, a British Columbian man, while being aware he was HIV-positive, had sexual relationships with two women. In neither instance was it disclosed that he was HIV-positive nor were condoms used to protect his partners. Both women later learned of Cuerrier's HIV status, and Cuerrier was subsequently charged with aggravated assault contrary to section 268 of the Criminal Code even though both women tested HIV-negative. The creation of a new test for fraud in the context of consenting to sexual activity with individuals of HIV-positive status led to the allowing of the Crown’s appeal and thus the ordering of a new trial for the accused.

The criteria outlined in Cuerrier are as follows:

1. The accused committed an act that a reasonable person would see as dishonest;

2. there was a harm, or a risk of harm, to the complainant as a result of that dishonesty; and,

3. the complainant would not have consented but for the dishonesty by the accused.

This test does, however, have some holes in it. There is no clear ruling here on the burden an HIV-positive person must have in terms of knowledge of safe-sex practices. The objective test in the first criteria is difficult to qualify. How much does a “reasonable person” know about viral loads? Would a reasonable person find the mere presence of HIV to be potentially fraudulent? Cuerrier provides that an HIV-positive person who practices safe sex does not have a duty to disclose to their partners. However, there is no clear line on what is or is not “safe enough”.

The criteria in Cuerrier, of course, apply only to HIV, when there is a realistic possibility of death on the line. This has even been enough of a risk to constitute first-degree murder charges. However, according to the World Health Organization, there are over 30 known pathogens that are largely transmitted through sexual contact. Of these, eight are most frequently transmitted. Four of these eight are currently curable: syphilis, gonorrhoea, chlamydia and trichomoniasis, although they may leave permanent scars or medical issues. The other four, hepatitis B, herpes simplex virus (”HSV”), HIV, and human papillomavirus (”HPV”), are uncurable and have permanent health and quality-of-life effects if contracted.

While Cuerrier addresses assault in the context of HIV, it fails to address other STBBI’s, curable or not. There is an argument to be made that even the curable STBBI’s should open grounds to criminal liability if transmitted from a fraudulent sexual act. There is still bodily harm conferred through failing to disclose even the most temporary of infections, but prosecution on the matters is unlikely under Cuerrier.

Clarifying Cuerrier in R v Mabior

The Court revisited the issue of failure to disclose STBBI’s in 2012 in R v Mabior ("Mabior"). The accused in Mabior was charged with aggravated sexual assault involving nine complainants contrary to sections 265(3) and 273 of the Criminal Code. The Crown claimed that the accused failed to disclose his HIV-positive status to the complainants before having sex with them although none of the complainants contracted HIV. The accused claimed that his duty to disclose his condition did not arise since the risk of transmission was low or negligible at the time and there was no significant risk of bodily harm to the complainants, looking to the decision in Cuerrier. The Court in Mabior clarified the test in Cuerrier, looking to the “realistic possibility of transmission”. In Mabior, this possibility largely hinged on the accused’s use of a condom in conjunction with a low viral load.

Unanswered questions about consent

So, after Cuerrier and Mabior, where does Canada stand when we are looking at this realistic possibility of transmission and bodily harm for “lesser” STBBI’s? It isn’t very clear. In Mabior, the Court in obiter stated that the modified Cuerrier analysis was sufficient to prosecute assault charges arising from lack of consent to sexual activity with individuals diagnosed with other STBBI’s. However, no clear precedents have been set following Mabior and Cuerrier. Failure to disclose HSV has, in few cases, been found fraudulent enough to open the door to prosecution. This however has been met with much debate from the public at large and legal analysts. Largely it comes down to the issue of HIV providing a severe bodily harm, where as other STBBI’s may reduce quality of life but not be as directly harmful.

While we do not want to net widen and over prosecute individuals, this push back against incurable STBBI’s less than HIV seems dismissive of victims who now have severely altered lives. People due to actions no fault of their own, victim to an act found to be criminal in slightly different scenarios, now have further obligations of disclosure they must practice with future sexual partners, potential trauma, and potential scarring. While this may not fit well into current Criminal Code provisions due to the precedents set on significant bodily harm being needed, there is room for discussion to be opened on the matter.

Criminal and civil options

For these victims that are on the receiving end of fraud vitiating the consent they gave for the “lesser” STBBI’s, there isn’t commonly cause for criminal prosecution. What would be a more likely cause of action is the pursuit of damages through tortious liability, specifically negligence regarding safe sexual practices or sexual battery for more egregious cases. On one hand, civil litigation in this regard is beneficial to the victim in that they can obtain direct relief in the form of damages, covering costs of medication or compensating for harms caused. This route, however, isn’t without difficulty . Civil litigation is expensive, and provides no promise of success. As such, civil remedy may merely subject victims to reliving a source of mental suffering. Civil litigation furthermore is not famous for being particularly swift, requiring significant investments of time before justice can be met.

Criminal prosecution is not definitively better or worse than relying on civil litigation. There is, of course, a retributive element to pursing criminal justice, having individuals who commit flagrant acts such as fraud obtain their “just desserts”. This process is also less involved for the victim which, especially when dealing with sexual assault, can be a positive aspect. On the other hand, there are policy concerns involved in widening criminal liability to include curable or less threatening STBBI’s. Sexual assault charges would in such a case be covering a large new category of potential offenders. Furthermore, dealing with infections that may no longer be present in the accused or victim may make prosecutions difficult.

A path forward by clarifying criminal jurisdiction

So, in the end, where does this leave us? Ideally, a victim should never feel forced to rely on civil processes to get justice for a harm inflicted on them, especially when we are talking about a sensitive subject like sexual health. At the same time, while there is adequate precedent on HIV, the most severe sexually transmittable infection, an afterthought in obiter that this precedent can be applied to other infections is highly ambiguous. Civil litigation, if successful, can conceivably provide a sense of justice for victims, but there are barriers and considerations to take into account before pursuing proceedings which can be lengthy and traumatic.

To provide better remedies for those infected with STBBI’s as a result of sexual activity, criminal action should be made available in a more clear, concise way. Although civil litigation may be beneficial in some cases, it cannot be more than a good backup option. Even in light of potential policy issues, an increase in criminal prosecution of willfully failing to inform a sexual partner of a STBBI needs to be looked at more directly by Canada’s courts.