There have been no prosecutorial directives issued in Quebec to narrow the scope of HIV criminalisation beyond the federal standard. However, in at least one case, factors other than those expressly covered in R. v Mabior have led to a non-disclosure prosecution being dismissed.
In a case first reported in 2008, a woman living with HIV was convicted of aggravated sexual assault for failure to disclose her status to her ex-boyfriend. The case arose after the woman had reported her ex-boyfriend for several incidents of domestic violence for which he was charged, after which the man alleged that his partner had failed to disclose her HIV status to him. The woman testified that she withheld her HIV status during the first three months of their relationship before informing her partner, but that condoms were always used during sex. HIV was not transmitted. The trial court determined that there was at least one instance of unprotected sex, which was the basis of the woman’s conviction, while the man’s domestic violence charges were dropped.
Two years later, the woman was acquitted on the basis that she had an undetectable viral load at the time of the single unprotected sexual encounter. The Court of Appeal determined that this meant the risk of transmission was 1 in 10,000, and therefore did not amount to a significant risk of harm as required under the standards developed by the Supreme Court (the Court referred extensively to Mabior although it had not yet reached the Supreme Court). This important ruling demonstrates that there may be circumstances where non-disclosure may not lead to conviction in Quebec even where condoms are not used, but this will be determined on a case-by-case basis.
Local HIV advocacy organisations have continued to call for a prosecutorial directive in Quebec to clarify this uncertainty and ensure up-to-date science informs prosecution decisions. For instance, the Coalition of Quebec Community Organizations to Fight AIDS (COCQ-SIDA) has been calling for a directive to be instituted for over ten years.
Overall, Quebec has the second highest number of HIV cases in Canada, after Ontario. Research by the HIV Legal Network has identified 36 non-disclosure cases in Quebec from 1989-2020. We are aware of two additional cases reported in 2021 and 2023, taking the total to 38 cases. The vast majority of cases we are aware of involve people living with HIV engaging in unprotected sexual intercourse without disclosing their status. In most cases in Quebec – as is the case across Canada – the question of whether transmission occurred is not at issue.
The rate of prosecutions in Quebec has fluctuated over time. There were 21 non-disclosure cases over 14 years (1998-2012), which increased significantly to 10 over the following four years (2012-2016) despite the Supreme Court ruling in Mabior. Then in August 2017 it was reported that there were three cases in the previous two months, alerting local HIV advocacy organisations about the state of criminalisation in Quebec, including COCQ-SIDA which called on the province Minister of Justice to place a moratorium on arrests while the law was reviewed at the federal level. Since August 2017 the rate of prosecution has slowed.
Several cases have involved numerous alleged incidents of non-disclosure from a single accused. For instance, in a 2013 case a man plead guilty to aggravated sexual assault for non-disclosure with 15 partners, and in a 2016 case a man pled guilty to nine counts of the same offence. In both cases at least one of the partners contracted HIV. The men were sentenced to six and seven years’ imprisonment, respectively.
Prosecution can lead to further restrictions on people living with HIV beyond the loss of liberty. For instance, in a 2017 case, a man charged with two counts of aggravated sexual assault was released pending trial with certain conditions, including to present medical tests confirming his viral load, and to provide proof of his medication regimen. Furthermore, migrants face deportation when accused of non-disclosure, including in a recent case in 2020.
For more information on the current state of the law and prosecutorial guidelines in Canada, visit the HIV Legal Network’s HIV criminalisation microsite.
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.