To Prosecute or Not: The Criminal Law and HIV Non-disclosure - Brandon Leverick
People living with human immunodeficiency virus (HIV) are not strangers to stigmatization. Myths surrounding the modes and modalities of HIV transmission have permeated into Canada’s jurisprudence and reinforced irrational fears of transmissibility, despite the best scientific evidence suggesting otherwise. Advances in medicine, like antiretroviral therapies (ART), significantly reduce the transmissibility of HIV by decreasing the amount of HIV in the blood. This is often referred to as viral load. To date, there has been no confirmed transmission of HIV from individuals on ART with sustained viral suppression. However, Canada’s case law regarding HIV non-disclosure continues to stigmatize those living with HIV, reinforces stereotypes disproved by scientific evidence, and is a complicated patchwork of directives that do little to prevent the transmission of the virus. The arbitrary prosecution of HIV-positive people who do not disclose their status before engaging in sexual activity should no longer continue as the best scientific evidence demonstrates that HIV is not easily transmitted when appropriate medical management is adhered to.
R v Cuerrier
The history of criminalizing HIV non-disclosure dates back to 1998. The Supreme Court of Canada (SCC) held in R v Cuerrier that the non-disclosure of HIV status prior to sexual activity constituted fraud and vitiated consent under s 265(3)(c) of the Criminal Code. Cuerrier was charged with aggravated assault after having unprotected vaginal intercourse with two women, neither of whom contracted HIV. It is important to note that in its ruling, the SCC was silent on whether Cuerrier was on ART which would have reduced his viral load and the possibility of transmitting HIV. The court defined fraud as any action, or inaction, that resulted in deprivation. Justice Cory defined deprivation as “a significant risk of serious bodily harm.” Consequently, not disclosing one’s HIV status prior to sexual intercourse now constituted fraud and could be considered aggravated assault. The charge of aggravated assault carries a maximum sentence of fourteen years in prison and is defined as when one “wounds, maims, disfigures or endangers the life of the complainant.” Despite both the advances in the treatment of HIV and the fact that Cuerrier did not transmit the virus, the SCC still held that simply exposing someone to the risk of contracting HIV was enough to satisfy aggravated assault.
R v Mabior
The SCC attempted to clarify when one needs to disclose living with HIV in 2012. In R v Mabior, the court held that the requirement to disclose HIV status is when there is a “realistic possibility that HIV will be transmitted.” Mabior was charged with nine counts of aggravated sexual assault for failure to disclose HIV-positive status before engaging in sexual activity. None of the persons with whom Mabior had sexual intercourse contracted HIV. Aggravated sexual assault carries the same maximum penalty for murder, which is life in prison. In Mabior, the court considered ART and viral load when evaluating the realistic possibility of HIV transmission. The SCC held that if someone who is HIV-positive has a low viral load and a condom is used, then there is not a requirement to disclose HIV status. Low viral load was defined by the SCC to be less than 1500 copies per mL. However, this threshold is not used by the medical community. Instead, a term called undetectable is used which is defined as a viral load of less than 40 to 50 copies per mL, a threshold that cannot be detected by standard tests. It is understood that a maintained viral load that is undetectable is equivalent to the virus itself being untransmittable and is often indicated by U=U. The SCC’s holding in Mabior contradicts the science of HIV transmissibility. According to the court’s analysis, foregoing condom usage would be considered a realistic possibility that HIV will be transmitted, despite having an undetectable viral load which renders HIV untransmittable. In addition to this, the court held that there is a prima facie case of deception and deprivation when one living with HIV does not disclose their status to their sexual partner as the Crown does not need to prove there was a risk of HIV transmission. This is possibly a breach of the justice system’s principles of fundamental justice to be presumed innocent.
Directives on HIV Non-disclosure
In 2018, the federal Justice Minister and Attorney-General, Jody Wilson-Raybould, issued a directive setting out four principles that should govern prosecutorial decision-making in criminal HIV non-disclosure cases. The first was to not prosecute HIV non-disclosure cases where the person living with HIV has a viral load of under 200 copies per mL, as there is “no realistic possibility of transmission.” The second was to not generally prosecute where the person living with HIV used condoms, or engaged only in oral sex, or was taking treatments as prescribed, as there is likely “no realistic possibility of transmission.” The third directive narrowed the prosecution of HIV non-disclosure cases to non-sexual offences in cases where there is lower blameworthiness. Finally, public health services offered to the person living with HIV should be considered before pursuing a prosecution. These directives are an incremental positive change to the criminalization of HIV non-disclosure, but only apply to the territories in Canada. Only British Columbia and Ontario have policies in place similar to the directive limiting the prosecution of HIV non-disclosure. Alberta has issued similar instructions to their prosecution service, but there is no formal directive in place. However, the federal directive fails to include any safeguards against discrimination for the 2SLGBTQ+ community, visible minorities, and Indigenous peoples.
The SCC’s judgements in Cuerrier and Mabior reinforce the stigmatization of persons living with HIV. Other sexually transmitted infections such as herpes simplex virus (HSV), human papillomavirus (HPV), and hepatitis B (HBV) do not have known cures, yet it is not required in law to disclose one’s status before engaging in sexual activity. Advances in medicine have developed treatments for HIV that reduce the viral load to an amount where it is untransmittable and therefore allow people to live longer, healthier lives. These treatments and resulting evidentiary success were available when the SCC ruled in Cuerrier and Mabior. However, Canada’s case law asserts that exposing someone to the risk of contracting HIV is endangering another’s life and that sex without a condom would still constitute a realistic probability of transmission despite having undetectable viral titres that renders HIV untransmittable. While the 2018 directives are a welcome change to the jurisprudence regarding HIV non-disclosure, they are limited in application depending on jurisdiction and may not go far enough to address HIV non-disclosure and what is a “realistic possibility that HIV will be transmitted.”
The stigmatization of persons living with HIV intersects with multiple other identities that have been historically and continually discriminated against in Canada. Gay men in Canada were associated with HIV from the beginning of its spread with HIV sometimes called “the gay plague.” Nearly 50% of new HIV infections in 2020 occurred in the gay, bisexual, and men who have sex with men communities, yet most convictions for HIV non-disclosure involved heterosexual partners. There is a clear discrepancy here of who the Crown feels it needs to protect in HIV non-disclosure cases. Indigenous peoples, who are greatly overrepresented in Canada’s prison system, accounted for 10% of new HIV infections in 2020. Since Mabior, mostly Black men have been charged in relation to HIV non-disclosure, immigrants and refugees make up 18% of those charged, and five out of the twelve women who were charged were Indigenous. Canada prosecutes more people for HIV non-disclosure than most other countries in the world and the evidence suggests that populations overrepresented in our prison system are the most prosecuted.
There is no other medical condition as criminalized as HIV and the law regarding HIV non-disclosure has severe implications. Aggravated sexual assault not only carries a maximum penalty of life imprisonment, but also includes mandatory registration as a sex offender and potential deportation for non-citizens. The criminalization of HIV is also at odds with public health objectives. Fear of prosecution can potentially deter people from getting tested and undermine the relationship between the patient and the healthcare provider as their private health records are used as evidence in court. The Joint United Nations Programme on HIV/AIDS (UNAIDS) recommends that criminal law in relation to HIV be guided by scientific evidence, uphold the principles of fundamental justice, and protect human rights. In addition to this, UNAIDS takes the position that it is inappropriate to prosecute HIV non-disclosure with charges of aggravated assault as HIV is now a chronic, treatable health condition. Intent to transmit HIV should be a part of the mental culpability aspect and cannot be derived from non-disclosure of HIV status or sex without a condom.
Future of the Criminal Law and HIV Non-disclosure
Canada will undergo consultations in October of 2022 to modernize the criminal law’s response to HIV non-disclosure. Wilson-Raybould’s directive acknowledged that HIV is first and foremost a public health issue. Therefore, it is imperative that people living with HIV, the medical community, and organizations representing the interests of those living with HIV are heard. Change must be based on best scientific evidence and protect peoples who are currently experiencing discrimination from HIV non-disclosure case law. In 2019, the Standing Committee on Justice and Human Rights from the House of Commons released a report with four recommendations entitled The Criminalization of HIV Non-Disclosure in Canada. These recommendations include: (1) creating a specific offence in the Criminal Code relating to the non-disclosure of infectious diseases in consultation with relevant stakeholders; (2) develop a federal-provincial working group for a common prosecutorial directive across Canada; (3) establish a mechanism to review cases of all individuals convicted for not disclosing HIV status under new standards; and (4) increase testing for HIV across Canada.
HIV non-disclosure criminalization in Canada disproportionately affects Black and Indigenous people, the 2SLGBTQ+ community, and non-citizens of Canada. The thresholds set by Canadian case law for a “realistic possibility that HIV will be transmitted” are not soundly based on the best scientific evidence. The criminalization of HIV non-disclosure furthers the myth that HIV is easily transmitted, even when affected individuals are on medications like ART that can lower one’s viral load to an undetectable level where it is impossible to transmit the virus. Furthermore, many are convicted in relation to HIV non-disclosure in Canada without actually transmitting HIV. If Canada wants to reduce HIV transmission, there must be legislative response informed by stakeholders and the medical community. HIV is now a chronic, treatable health condition that should not be used as a basis for aggravated assault charges. Prosecutions should be guided by a uniform directive across Canada that takes into account the intent of the accused to transmit HIV and whether HIV was actually transmitted.
 Davinder Singh & Karen Busby, “Criminalizing HIV Non-Disclosure: Using Public Health to Inform Criminal Law” (2019) 42:3 MLJ 89 at 91.  Ibid at 95.  R v Cuerrier,  2 SCR 371,  SCJ No 64 at para 127.  Ibid at paras 82-83.  Ibid at paras 126-128.  Ibid at para 128.  Ibid at apra 14, 127.  Criminal Code, RSC 1985, c C-46, s 268(1).  R v Mabior, 2012 SCC 47 at para 4.  Ibid at para 1.  Ibid.  Criminal Code, RSC 1985, c C-46, s 273(1)(2)(b).  Supra note 9 at para 4.  Ibid at para 100.  Canada, Public Health Agency of Canada, “HIV Factsheet: U=U for Health Professionals” (4 February 2020), online (pdf): Government of Canada <www.canada.ca/en/public-health/services/publications/diseases-conditions/hiv-factsheet-undetectable-untransmittable-health-professionals.html> [accessed 10 October 2022.  Ibid.  Supra note 9 at 105.  Canada, Public Prosecution Service of Canada, Prosecutions Involving Non-Disclosure of HIV Status, (Directive), by The Honourable Jody Wilson-Raybould, (Ottawa: Public Prosecution Service of Canada, 8 December 2018).  Ibid.  Ibid.  Ibid.  Canadian HIV/AIDS Legal Network, “The Criminalization of HIV Non-Disclosure in Canada: Current Status and the Need for Change” (April 2019), online (pdf): HIV Legal Network <www.hivlegalnetwork.ca/site/the-criminalization-of-hiv-non-disclosure-in-canada-report/?lang=en> [perma.cc/US5Z-T9LK] accessed 10 October 2022.  Ibid.  Supra note 1 at 90.  Colin Hasting, Cécile Kazatchkine & Eric Mykhalovskiy, “HIV Criminalization in Canada: Key Trends and Patterns” (March 2017), online (pdf): HIV Legal Network <www.hivlegalnetwork.ca/site/hiv-criminalization-in-canada-key-trends-and-patterns/?lang=en> [perma.cc/VJP5-EYGG] accessed 10 October 2022.  Ibid.  Ibid.  Ibid.  Canadian HIV/AIDS Legal Network, supra note 22.  Ibid.  UNAIDS, "Ending Overly Broad Criminalization of HIV Non-disclosure, Exposure and Transmission: Critical Scientific, Medical and Legal Considerations” (May 2013), online (pdf): HIV Legal Network < https://www.hivlegalnetwork.ca/site/wp-content/uploads/2014/02/UNAIDS-Ending_Crimin2013.pdf> [perma.cc/VPC6-V7QC] accessed 10 October 2022.  Ibid.  Ibid.  Department of Justice Canada, News Release, “October 2022 will see Government consultations on modernizing the criminal justice system’s response to HIV non-disclosure” (27 July 2022) <www.canada.ca/en/department-justice/news/2022/07/october-2022-will-see-government-consultations-on-modernizing-the-criminal-justice-systems-response-to-hiv-non-disclosure.html> accessed 10 October 2022.  Canada, Parliament, House of Commons, Standing Committee on Justice and Human Rights, The Criminalization of HIV Non-Disclosure in Canada, 42 Parl, 1st Sess, No 28 (June 2019) (Chair: Anthony Housefather) 1-2.  Ibid.
The views and opinions expressed in the blogs are the views of their authors, and do not represent the views of the Faculty of Law, or the University of Manitoba. Academic Members of the University of Manitoba are entitled to academic freedom in the context of a respectful working and learning environment.