Canada

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.”