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Countries

Canada

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Number of reported cases At least 234 How do we calculate the number of cases

Overview

There have been more than 230 cases related to the criminalisation of HIV non-disclosure before sex in Canada since the first reported case in 1989. There have also been cases relating to spitting and biting, and cases where HIV has been considered an aggravating factor in sexual assault, although the number of such cases is not known. A small number of prosecutions have also been undertaken based on perceived risk of transmission of hepatitis B, hepatitis C and herpes. As of late 2022, a federal review of the law, including a public consultation, is underway (see below).

Canada has one of the highest number of reported HIV cases in the world despite there being no HIV-specific law. Most cases have been prosecuted under (aggravated) sexual assault laws although charges of common nuisance, criminal negligence causing bodily harm, administration of a noxious substance, attempted murder and even murder have occasionally been used. Public health law can also be used against people living with HIV who do not disclose their status and/or do not use precautions to prevent HIV, with these orders enforceable through courts.

Sexual assault laws have been routinely used since 1998 when the Supreme Court ruled that non-disclosure of HIV-positive status prior to sex may amount to fraud vitiating consent to sex in some circumstances (i.e. where there is a realistic possibility of transmission and the sexual partner would not have consented to sex had they been informed about their partner’s HIV positive status).

People living with HIV have been charged when they had no intent to harm their partner and HIV was not transmitted. In some cases, people have been charged and imprisoned for acts with zero to negligible risk of transmission including sex with an undetectable viral load, oral sex or sex with a condom.

In 1998, the Supreme Court of Canada established a legal duty to disclose HIV-positive status before sex that poses a “significant risk of serious bodily harm”. In 2012, the Supreme Court ‘clarified’ that mandatory disclosure applies when sex poses a “realistic possibility of transmission of HIV” (see decisions here and here). According to that decision, there is no duty to disclose before sex if a condom is used and the HIV positive partner has a “low” viral load (under 1500 copies per ml of blood). The question of whether a person might be prosecuted for not disclosing their status in other circumstances is still evolving and may vary from one province to another, depending on court decisions/precedents in different provinces and territories; on directives and guidelines for prosecutors where they exist; and on interpretation of what a “realistic possibility” of HIV transmission may mean.

In May 2020, the British Colombia Court of Appeal made a  decision which may prove important in a case that does not involve HIV. It ordered a new trial of a man previously acquitted of sexual assault after he had sex without a condom – finding sex without a condom is a fundamentally different activity from sex with a condom.

Recently, there have been some positive changes as a result of tenacious efforts by community advocates, scientists, lawyers and academics, to combat unjust criminalisation. The Canadian Coalition to Reform HIV Criminalization (CCRHC), created in 2016, released its Community Consensus Statement (2017) calling for Criminal Code reforms and the development of sound prosecutorial guidelines across the country. The statement was endorsed by more than 170 community organisations.

In December 2018, the Federal Government instructed its lawyers to stop prosecuting people who have a suppressed viral load (i.e. under 200 copies/ml) and to “generally” not prosecute people who used a condom, took treatment as prescribed, or had only had oral sex, because she concluded that there is likely no realistic possibility of transmission in these circumstances. That directive only applies to Canada’s three territories and not to Canadian provinces where most people living with HIV live. For more information on the current state of the law and prosecutorial guidelines in Canada, visit the Canadian HIV/AIDS Legal Network’s HIV criminalisation microsite.

In June 2019, the House of Commons’ Standing Committee on Justice and Human Rights released a report on the Criminalization of HIV non-disclosure in Canada. The report recommends removing HIV non-disclosure from the reach of sexual assault law and limiting HIV criminalisation to reckless or intentional transmission of an infectious disease (including HIV) through the creation of a specific offence in the Criminal Code. While encouraging, community advocates retain a goal of limiting HIV criminalisation to cases of intentional transmission only (in keeping with UN recommendations). Moreover, community advocates disagree with the extension of the criminal law to other infections.

The report also recommends the implementation of prosecutorial directives (common across Canada) to end criminal prosecutions of HIV non-disclosure wherever HIV is not transmitted, and to ensure that the most recent scientific evidence regarding HIV and its modes of transmission is applied. The report states HIV non-disclosure should never be prosecuted if (1) the infected individual has an undetectable viral load (less than 200 copies per millilitre of blood); (2) condoms are used; (3) the infected individual’s partner is on PrEP or (4) the type of sexual act (such as oral sex) is one where there is a negligible risk of transmission.

In August 2020, the Ontario Court of Appeal upheld the aggravated sexual assault conviction of a young HIV-positive man who had used condoms (correctly) during consensual sex but had not disclosed his HIV status. HIV was not transmitted. The decision, R. v N.G., reiterated Canadian courts’ entrenched position that correct condom use is not enough to prevent criminal conviction. You can find the Canadian HIV Legal Network’s Statement here.

However, two decisions by the Ontario Court of Appeal in 2022 suggest a softening of the position on HIV non-disclosure in Ontario. In an August 2022 decision, a 2013 conviction for aggravated sexual assault involving a woman with an undetectable viral load, but 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. Similarly, a judgment by the same court in October 2022 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. He had already served out his sentence several years before his conviction was overturned. 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 law requiring automatic inclusion on the sex offenders registry of anyone convicted of a sexual offence (including HIV non-disclosure cases under aggravated sexual assault) in Canada has also been challenged in the courts. In September 2020, the Alberta Court of Appeal overturned a lower court decision which had found that a man convicted of two counts of sexual assault did not need to be listed on the national sex offenders register for life. The HIV and AIDS Legal Clinic Ontario and the HIV Legal Network were granted Intervenor status in the appeal, arguing that when sexual activity is consensual, an accused with HIV or AIDS with a suppressed viral load and no realistic possibility of transmitting HIV should not be prosecuted, but if prosecuted and convicted, automatic listing in the national sex offender registry is overbroad and grossly disproportionate. The Court declined to rule on that point. The decision, R. v. Ndhlovu, which was a split decision, was appealed to the Supreme Court which in October 2022 ruled against mandatory registration on the sex offenders registry. Those convicted of HIV non-disclosure will no longer automatically become registered sex offenders and will only be added to the register at the court’s discretion.

In October 2022 the federal government opened a promised public consultation as part of a review of the country’s laws on HIV non-disclosure. The public was invited to share views on the current law through an online survey. The consultation formed part of the government’s plans to develop a ‘policy roadmap’ for reforming the law. Justice Minister David Lametti said: “Our government recognizes that the criminalization of people living with HIV can lead to stigmatization and significant hardships. This is why we are consulting Canadians on the best approach to reform the criminal law regarding HIV non-disclosure. It will help us find solutions, and will lead to better outcomes for affected populations.”

More information is available on the following states

Alberta

Number of reported cases 4
First reported case 2009

British Columbia

Number of reported cases 9
First reported case 2007

Manitoba

Number of reported cases 8
First reported case 2007

New Brunswick

Number of reported cases 0

Newfoundland and Labrador

Number of reported cases 0

Northwest Territories

Number of reported cases 2
First reported case 2019

Nova Scotia

Number of reported cases 3
First reported case 2008

Ontario

Number of reported cases 43
First reported case 2007

Prince Edward Island

Number of reported cases 0

Quebec

Number of reported cases 16
First reported case 2008

Saskatchewan

Number of reported cases 3
First reported case 2008

Laws

General criminal law (active)

Further resources

Canadian HIV/AIDS Legal Network - Criminalization

This microsite from the Canadian HIV/AIDS Legal Network provides a comprehensive and up-to-date overview and analysis of HIV-related criminalisation in Canada.

Bibliography on Criminalization of HIV Non-Disclosure, Exposure, And Transmission

From the Center for Interdisciplinary Research on AIDS Yale University: Overview of resources outlining criminal laws and analyses of case laws; empirical research in the US and Canada; legal and public health analyses; guidance, fact sheets and talking points; policy and consensus statements, and other relevant references on criminalization in a North American context.

The Complex Legacy of R. v. Cuerrier: HIV Nondisclosure Prosecutions and Their Impact on Sexual Assault Law

This article examines the impact of the Supreme Court of Canada decision in R. v. Cuerrier from two vantage points: the impact of the decision on HIV nondisclosure prosecutions and the damage done by Cuerrier to sexual assault law outside of the HIV context. 

“Criminalization Creep”: A brief discussion of the criminalization of HIV/AIDS nondisclosure in Canada

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. Dej & J.M. Kilty

Director of Public Prosecutions Act

Directive to federal prosecutors regarding HIV non-disclosure cases issued by the Attorney General of Canada on December 8, 2018. Reflect the most recent scientific evidence around sexual transmission of HIV, as analysed by Canada Public Health Agency, as well as applicable criminal law as specified by Canada Supreme Court.

HIV Criminalization in Canada: Key Trends and Patterns

Provides a snapshot of the temporal and demographic patterns of HIV criminalization in Canada from 1989 to 2020, also updating information on the outcomes of criminal cases. Finds people are often convicted in cases involving negligible or no risk of HIV transmission, and that criminal law is increasingly used against people living with HIV from marginalized populations.
Egalement disponible en Français: https://www.hivlegalnetwork.ca/site/hiv-criminalization-in-canada-key-trends-and-patterns-1989-2020/?lang=fr

Criminal law and HIV non-disclosure: Understanding the criminal law in Canada

Explains the criminal law in Canada, including what the law is, basic principles of the law, and the hierarchy of the courts (in HIV Disclosure and the Law: A Resource Kit for Service Providers).

Canadian Consensus Statement on HIV and its transmission in the context of the criminal law

Sets out in clear, concise, and understandable terms a collective expert opinion about HIV sexual transmission, transmission associated with biting and spitting, and HIV as a chronic manageable condition. Authored by six distinguished Canadian HIV clinicians and scientists.
Authors: M. Loutfy, M. Tyndall, J. Baril, J. Montaner, R. Kaul, C. Hankins

Factum of the Interveners at the Supreme Court of Canada: R v. Mabior and R v. D.C.

Questions whether the offence of aggravated sexual assault can and should be established for HIV non-disclosure in circumstances where, in the Interveners’ submission, there is no “significant risk” of transmission because of factors that dramatically reduce that risk, such as the use of condoms or an undetectable or low viral load

Acknowledgements

HIV Legal Network

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.

This information was last reviewed in November 2022

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Cases

Canada: Man pleads guilty to aggravated sexual assault in Quebec for having unprotected sex and not disclosing his status

[Update]Canada: Murder convictions for HIV transmission reduced to manslaughter on appeal

[Update]Canada: Appeals court overturns man's initial conviction, citing his viral load suppression

[Update] Canada: Woman sentenced for HIV 'exposure', despite undetectable viral load, wins her case in Court of Appeal

[Update]Canada: BC Appeal Court upholds decision against man sentenced to 4-years in prison for alleged HIV non-disclosure

Show more

News by the HIV Justice Network

Thought-provoking new report from Canada on alternatives to HIV criminalisation

January 27, 2023

When law and science part ways: the criminalization of breastfeeding by women living with HIV

September 16, 2022

HIV criminalisation highlights at AIDS 2022

August 12, 2022

We Are People, Not Clusters! Why public health surveillance using blood taken for HIV resistance testing risks doing more harm than good

September 21, 2020

Canadian study provides damning evidence of the “dramatic overrepresentation” of Black men in HIV criminalisation news reporting

May 22, 2020
Show more

News curated from other sources

Canada: Federal government opens its promised public consultation on HIV criminalisation law reform

Ottawa launches public consultation on reforming the criminal law on HIV non-disclosure
October 21, 2022

Canada: Federal government must review past criminal cases of HIV nondisclosure for possible wrongful convictions

Ottawa urged to review past HIV cases for wrongful convictions
October 13, 2022

Canada: Ruling from Ontario court of appeal opens the door for other people with HIV to seek to have their convictions overturned

‘I was made out to be a monster’: With her conviction for not disclosing her HIV status now overturned, one woman wants Canada’s laws to change
August 31, 2022

Canada: Ignoring request to wear condom violates consent and constitutes sexual assault

Breaking Agreement to Use a Condom Is a Sex Crime, Canada High Court Rules
July 30, 2022

Canada: Government to seek input on how to modernize the criminal justice system’s response to HIV non-disclosure

Liberals to launch consultations on criminal justice response to HIV non-disclosure
July 29, 2022
Show more

Organisations

Interagency Coalition on AIDS and Development

ICASO

COCQ-SIDA

HIV Network of Edmonton Society

Vancouver Island Persons Living with HIV/AIDS Society

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Disclaimer

This website operates as a global hub, consolidating a wide range of resources on HIV criminalisation for advocates working to abolish criminal and similar laws, policies and practices that regulate, control and punish people living with HIV based on their HIV-positive status. While we endeavour to ensure that all information is correct and up-to-date, we cannot guarantee the accuracy of laws or cases. The information contained on this site is not a substitute for legal advice. Anyone seeking clarification of the law in particular circumstances should seek legal advice. Read more

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Stichting HIV Justice (HIV Justice Foundation), Eerste Helmersstraat 17 B 3, 1054 CX Amsterdam, The Netherlands

The HIV Justice Network is supported by a grant from the Robert Carr Fund provided to the HIV Justice Global Consortium.

The HIV Justice Network is also grateful to The Monument Trust for its generous support between 2012-15.

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