It can be a criminal offence to infect someone with HIV in the case that the person who became infected was not told by the person who infected them that they were HIV positive before the sexual activity in question occurred.
What is failure to disclose?
There is an obligation to disclose an HIV positive status according to the Canadian Criminal Code.
However there are some circumstances where an HIV positive person would not have to disclose their status to their partner before sexual activity if the risk of transmission is very low.
A person who is charged with failure to disclose can be charged with a criminal offence under the Criminal Code of Canada.
Failing to disclosure your positive HIV status in certain circumstances is considered endangering to the complainants life and is defined as an aggravated assault.
Any person after police investigation who is found to have failed to disclose their HIV status in a circumstance where they are obligated by law to do so will be consequently charged with the criminal offence of aggravated assault.
Aggravated assault is explained in section 268.1 of the Criminal Code
268 (1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.
(2) Every one who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
The obligation to disclose was established in the 1990’s and has been a criminal offence ever since.
With Supreme Court of Canada rulings in 2012, failing to disclose was defined as a more serious criminal offence with harsher punishments.
It was decided in R. v. Maboir and R. v. D.C that the people living HIV must disclose their illness before having sexual activity that presents a “realistic possibility of HIV transmission”.
According to the law a realistic possibility of HIV transmission has a very low threshold.
Even if the complainant was not infected with HIV the accused can still be charged with aggravated assault for failing to disclose their HIV positive status, the criminal offence is for exposing the complainant to a realistic possibility of HIV infection, not for necessarily infecting them.
According to the Supreme Court Rulings in 2012 when a person who is HIV positive has:
Vaginal Sex: There is a duty to disclose their status when a condom is not used. And when a condom is used if the infected person has a viral load that is higher than low.
There is no duty to disclose when they have a low or undetectable viral load and condoms are used
Anal Sex: presents more of risk for transmission than vaginal sex
There is always a duty to disclose before anal sex without a condom
And before anal sex with a condom is their viral load is higher than low.
The law is not explicitly clear whether or not someone with HIV who uses a condom and has a low viral load does not have a duty to disclose as the rulings pertained to vaginal sex.
Oral Sex: usually very low risk for HIV transmission
There is no ruling on oral sex and a duty to disclose however it can be inferred that there is no duty disclose before oral sex if a condom is used and the infected person has a low viral load.
What is an HIV viral load test?
It measures the amount of HIV in your blood. The higher the load the more likely you are to pass on HIV during unprotected sex.
A person can be charged even in the absence of HIV transmission even if they did not infect the complainant with HIV.
The criminal offence of aggravated assault, failing to disclose is for exposing the complainant to a realistic possibility of HIV infection not for necessarily infecting them
An omission of HIV status is equal to a lie, even in the case that the complainant did not inquire
What are the consequences of a conviction of aggravated assault?
A prison sentence of up to 14 years
A permanent registered Sex offender
Sentencing for aggravated assault conviction:
If convicted of an aggravated assault the accused is eligible during sentencing to a range of sentences.
Depending on the specifics of the offence and the quality of their defence the judge would sentence the accused to: suspended sentence, a fine alone, fine and probation, conditional sentence, prison term of up to 14 years, prison and probation, prison and a fine intermittent prison sentence, intermittent prison sentence with fine and probation, and a mandatory victim fine surcharge
In order for someone to be found guilty of aggravated assault the Crown must prove beyond a reasonable doubt:
The identity of the accused and that they were aware if their HIV status and the possibility of transmission
The occurrence of dishonesty about their HIV status occurred
That a realistic possibility of transmission of the HIV virus occurred
That the complainant would not have consented to the sexual activity had the known that the accused was HIV positive
That the sexual activity endangered the life of the complainant.
There are defences available to you if you have been charged with aggravated assault or any other criminal offence. Contact Toronto Defence Lawyers, Kostman and Pyzer for advice.
Hulya Genc studied philosophy at York University and is a certified mediator. She is pursuing a career in law, with the intention of practicing criminal law.