As a territory rather than a province, lawyers in the Northwest Territories are bound by the federal prosecutorial directive issued by the Attorney General in 2018. This means that prosecutions for HIV non-disclosure cannot occur where the person living with HIV has maintained a suppressed viral load, and should generally not occur where they were taking treatment as prescribed, used condoms, or engaged only in oral sex.
Research by the HIV Legal Network has identified two cases in the Northwest Territories. Likewise, we are aware of two case reports, both of which involved the same accused. The man living with HIV was convicted of aggravated sexual assault in 2013 after allegedly failing to disclose his status to two women prior to sex, although he was wearing a condom in at least one of the cases, and was on treatment, albeit did not take his medication consistently. This case occurred before the federal directive came into effect and would likely not be prosecutable following it.
The man was charged again in 2018 for allegedly having sex with another woman without disclosing his status, however this charge was dropped following the issuance of the 2018 federal directive and in light of the man’s medical records.
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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