Following the release of the Department of Justice report on HIV criminalisation in 2017 (see federal overview), activists in Alberta began to advocate for the report’s recommendations to be adopted in the province. In December 2017, shortly after that report was released, the press secretary for the Justice Minister stated that the report was being ‘taken into consideration’. Although this has not translated into a binding prosecutorial directive in Alberta, advice has been issued on HIV criminalisation by the Ministry of Justice.
The HIV Legal Network reports that the Assistant Deputy Minister of Justice, who is responsible for the provincial prosecution service, articulated the Ministry’s position on when it is appropriate to prosecute HIV non-disclosure in a letter to community advocates in January 2019. Provincial prosecutors were also ‘advised’ of this position, but there is no official guidance or directive in place.
The advice suggests that there should be no prosecution for non-disclosure where a person living with HIV is taking treatment and has maintained a suppressed viral load (i.e. under 200 copies/ml) on consecutive tests taken four to six months apart. This aligns with the federal prosecution directive given in 2018, but unlike that directive, Alberta’s policy is silent as to the appropriateness of prosecution where a suppressed viral load is not present but the person used condoms or only engaged in sexual activity without a significant possibility of transmission, such as oral sex. This, together with the fact that the advice is not binding, leaves significant scope for criminalisation of HIV non-disclosure in circumstances where there is little to no risk of transmission.
There is no evidence that the Alberta provincial courts have narrowed the scope of HIV criminalisation further than the standard established by the Supreme Court in R. v Mabior.
A recent court case in Alberta prompted nationwide changes to the law. 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 offender register for life as this requirement was “grossly disproportionate” and the defendant showed little to no risk of reoffending. Although this case was unrelated to HIV, it was pertinent to HIV non-disclosure as a conviction through the most common route of aggravated sexual assault results in mandatory registration. The HIV and AIDS Legal Clinic Ontario and the HIV Legal Network were granted intervenor status in the appeal, and argued that an accused living with HIV and with a suppressed viral load poses no realistic possibility of transmitting HIV through consensual sexual activity and 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 the HIV-specific argument, describing it as a “hypothetical”, however it rejected the notion that the law was overbroad. The split decision, R. v Ndhlovu, was appealed to the Supreme Court, which ultimately struck down the mandatory registration requirement (see federal overview).
There have been at least 21 cases of HIV criminalisation in Alberta since 1989. The HIV Legal Network’s research identified 19 non-disclosure cases up to 2020, and there has been at least one further case in 2021 which resulted in dropped charges at trial. Additionally, we are aware of a case from 2009 which resulted in a man being convicted of assault with a weapon after allegedly threatening two security guards with a needle he claimed was ‘infected with HIV’. His HIV status is not known, and the guards did not come into contact with the needle, but he was nonetheless sentenced to eight months’ imprisonment.
For more information on the current state of the law and prosecutorial guidelines in Canada, visit the HIV Legal Network’s HIV criminalisation microsite.
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