Prosecutorial directives and court judgements have narrowed the scope of criminalisation in Ontario slightly beyond the standard established by the Supreme Court, however, there remains significant room for prosecution in Canada’s most populous province, and it has the highest number of cases in the country.
In an August 2017 case (R. v C.B.), a man living with HIV was charged with two counts of aggravated sexual assault for alleged non-disclosure. The man had an undetectable viral load, but it was alleged that condoms were not used. The case turned on the standard established in R. v Mabior and whether the use of condoms and presence of a low viral load were the only circumstances in which there was no duty to disclose, or whether other circumstances, such as an undetectable viral load, could negate liability. After hearing expert testimony which demonstrated that there was no realistic possibility of transmission by someone with an undetectable viral load, and relying on the statement by the Court in Mabior that the standard could be broadened in line with advances in treatment, the Ontario Court rejected the charges against the man for non-disclosure.
This ruling represented the first time in which Ontario courts were prepared to accept that risk-reduction factors other than the use of condoms (with a low viral load) could vitiate criminal liability for non-disclosure. However, in a case in November 2017 (R. v G.), the Courts declined to extend these factors beyond an undetectable viral load. In this case a man living with HIV had sex with a condom while his viral load was higher than the ‘low’ level established in Mabior. The use of condoms was not considered sufficient to vitiate liability alone, and the man was convicted for non-disclosure. This position was upheld by the Ontario Court of Appeal in a separate case in August 2020 (R. v N.G.).
Together, these cases demonstrated the need for decisive legislative and/or prosecutorial action to narrow the scope of criminalisation in line with latest science (see the Canadian HIV Legal Network’s Statement following the 2020 case here). Although a binding prosecutorial directive on HIV criminalisation was issued by the Ministry of the Ontario Attorney General in December 2017, it failed to properly keep up with scientific evidence. This directive stated that prosecutions should not occur where condoms were used and the person living with HIV had a ‘low’ viral load, or where the person had been taking treatment and maintained a suppressed viral load for six months. Furthermore, the directive requires prosecutors to consult with an STI Advisory Group on HIV cases to understand transmission risks before prosecutions are brought.
This directive formalised the position established by the courts but left some ambiguity as it did not address whether other circumstances could lead to prosecution. Following outreach by advocates, the Ontario Attorney General clarified the position in February 2019, stating that while the risk of transmission is reduced in the case of oral sex or if condoms are used (without a low viral load), the AG believes there remains some risk, suggesting that criminal prosecution would be possible on a case-by-case basis.
More recently, the Ontario Court of Appeal has reaffirmed the position on undetectability. In an August 2022 decision, a 2013 conviction for aggravated sexual assault involving a woman with an undetectable viral load where a condom was not used was overturned after the court accepted medical evidence which demonstrated that her viral suppression meant there was no realistic possibility of transmission.
In a unique case decided in October 2022, the Court of Appeal overturned the conviction of a man living with HIV who was sentenced in 2017 for aggravated sexual assault after allegedly having sex with a woman several times without using a condom (although he had already served out his sentence). The man had a rare condition which made him an ‘elite controller’, which suppresses viral load to a point where HIV transmission is impossible even without the use of antiretroviral treatment. This case appears to represent a further narrowing of HIV criminalisation, making it possible for someone to avoid conviction for non-disclosure without using condoms or taking antiretroviral medication where they have a similar condition, however these cases are rare, and an accused would likely need to rely on expert testimony to prove their case.
The HIV Legal Network’s research identified 113 non-disclosure cases up to 2020, representing almost exactly half of such cases in Canada since 1989, which the Network attributes to both the number of people living with HIV in the province, as well as the prosecutorial approach taken in Ontario.
There have been at least three additional cases involving non-sexual incidents. In 2016, a man was sentenced on an assault charge after biting a police officer where the possibility of his HIV-positive status was a factor in sentencing, though it later turned out he was not living with HIV. In another 2016 case, a woman living with HIV was given 18 months’ probation after spitting on a man. Ontario was also the first, and to our knowledge only, province in which a blood donation by a person living with HIV led to criminal prosecution. In the case in 1989, a man was convicted under section 216 of the Criminal Code – which requires those who undertake acts which may ‘endanger the life of another person’ to use ‘reasonable knowledge, skill and care’ – after he failed to disclose his HIV status while giving blood. Although there was no transmission as the donated blood was screened and HIV antibodies were found to be present, the trial court ruled that the defendant breached a duty of care by failing to disclose his status. This ruling was upheldby the Ontario Court of Appeal in 1991, and by the Supreme Court in 1993 (see federal overview).
Ontario was also the first province in which HIV ‘exposure’ led to a murder conviction. After a high profile trial in 2008, a man was convicted in 2009 of two counts of murder, ten counts of aggravated sexual assault, and one count of attempted aggravated sexual assault after allegedly having unprotected sex with 11 women without disclosing his HIV status. Seven of the women contracted HIV, and two subsequently died, leading to the murder charges. The man was sentenced to life imprisonment and was labelled a ‘dangerous offender’. Following a review by the Ontario Court of Appeal more than 13 years later, the murder charges were downgraded to manslaughter due to incorrect jury instructions about intent, however the life sentence and ‘dangerous offender’ designation remained.
For more information on the current state of the law and prosecutorial guidelines in Canada, visit the HIV Legal Network’s HIV criminalisation microsite.
Provides an overview and analysis of criminal cases of HIV exposure and transmission to 2010, and proposes policy options for addressing the problems posed by the criminalization of HIV non-disclosure.
Authors: E. Mykhalovskiy, G. Betteridge, D. Mclay
One of the world’s leading organisations tackling the legal and human rights issues related to HIV, and advocating at both the policy and community levels.