It can be a criminal offence to expose someone to HIV in Canada if you did not disclose your HIV-positive status before sexual activity that posed a “realistic possibility” of transmission. Importantly, you can face criminal charges even if the other person was not actually infected with HIV.
The criminal law in Canada focuses on non-disclosure, meaning the failure to tell a sexual partner that you are HIV-positive before sex that poses a realistic possibility of transmission. This approach makes Canada an outlier internationally, as most other countries only prosecute cases involving intentional transmission.
What Is the Legal Obligation to Disclose?
People living with HIV in Canada have a legal duty to disclose their HIV-positive status to sexual partners before having sex that poses a “realistic possibility” of HIV transmission. This legal obligation applies only to people who know or suspect they are living with HIV.
The obligation to disclose was established in the 1998 Supreme Court case R. v. Cuerrier and further refined in the 2012 cases of R. v. Mabior and R. v. D.C.
Not disclosing in circumstances where there is a realistic possibility of transmission can result in criminal charges, most commonly aggravated sexual assault, which carries a maximum penalty of life imprisonment.
What Is the “Realistic Possibility of Transmission” Test?
The 2012 Supreme Court decisions in R. v. Mabior and R. v. D.C. established that when there is a “realistic possibility” of HIV transmission, disclosure is required.
When There Is No Duty to Disclose
Based on the Supreme Court’s rulings, there is no realistic possibility of transmission, and therefore no duty to disclose, when both of the following conditions are met:
- The person living with HIV has a low viral load (less than 1,500 copies per mL of blood) or an undetectable viral load (less than 50 copies per mL of blood), AND
- Condom protection is used during sexual activity
If both conditions are satisfied, the law recognises that the risk of transmission is negated, and there is no legal obligation to disclose HIV status.
When There Is a Duty to Disclose
Disclosure is required in all other circumstances, including:
- Vaginal sex without a condom
- Vaginal sex with a condom but without a low or undetectable viral load
- Anal sex without a condom (anal sex presents a higher risk than vaginal sex)
- Anal sex with a condom but without a low or undetectable viral load
The Supreme Court rulings specifically addressed vaginal sex. The law is not explicitly clear regarding anal sex with a condom and a low viral load, though anal sex is generally considered higher risk.
Oral Sex
The Supreme Court did not rule specifically on oral sex and the duty to disclose. Oral sex is usually considered very low risk for HIV transmission. It can be inferred that there may be no duty to disclose before oral sex if a condom is used and the infected person has a low viral load, but the courts have not definitively established this.
What Is a Viral Load Test?
A viral load test measures the amount of HIV in your blood. When a person undergoes antiretroviral treatment, the viral load typically shrinks:
- Low viral load: Less than 1,500 copies per mL of blood
- Undetectable viral load: Less than 50 copies per mL of blood
The higher the viral load, the more likely transmission during unprotected sex. Modern antiretroviral treatments have been highly effective. By 2020, 87% of those diagnosed with HIV in Canada were on treatment, with 95% of them achieving viral suppression.
The Supreme Court acknowledged that advances in medical treatment should be taken into account when applying the realistic possibility test, meaning the law may adapt as treatments improve.
What Criminal Charges Can Result From Non-Disclosure?
Failing to disclose HIV-positive status in circumstances where disclosure is required is typically charged as aggravated sexual assault.
Why Aggravated Sexual Assault?
The Supreme Court has indicated that aggravated sexual assault is the “operative offence” in HIV non-disclosure cases because HIV endangers life. The legal reasoning is that non-disclosure constitutes fraud that vitiates (invalidates) the other person’s consent to sexual activity, and the serious health consequences of HIV are seen as endangering life.
Section 273 of the Criminal Code defines aggravated sexual assault as sexually assaulting another person in a manner that wounds, maims, disfigures, or endangers the life of the complainant.
Penalties for Aggravated Sexual Assault
- Maximum sentence of life imprisonment
- Criminal record
- Possible registration as a sex offender
- DNA sample taken and placed in a data bank
- For non-citizens, the potential deportation
Other sentencing options may include suspended sentences, fines, probation, conditional sentences, or prison terms followed by probation.
What Must the Crown Prove?
For a conviction for aggravated sexual assault based on HIV non-disclosure, the Crown must prove beyond a reasonable doubt:
- The identity of the accused and that they were aware of their HIV-positive status
- That non-disclosure or misrepresentation of HIV status occurred
- That the sexual activity posed a realistic possibility of HIV transmission
- That the complainant would not have consented to the sexual activity had they known the accused was HIV-positive
- That the sexual activity endangered the life of the complainant
An omission of HIV status is legally equivalent to a lie, even if the complainant did not ask about HIV status.
Can You Be Charged If HIV Was Not Transmitted?
Yes. A person can be charged even if they did not actually infect the complainant with HIV. The criminal offence is for exposing the complainant to a realistic possibility of HIV infection, not for necessarily infecting them.
Between 1989 and 2020, approximately 206 people were prosecuted in 224 criminal cases related to HIV non-disclosure in Canada. Of 187 cases where the outcome is known, 130 cases (70%) ended in conviction, with the vast majority resulting in prison time.
What Are the Criticisms of Canada’s Approach?
Canada’s HIV non-disclosure laws have faced significant criticism from public health experts, human rights organisations, and HIV advocacy groups.
Disconnect From Scientific Evidence
Critics argue there is a disconnect between the law and well-established science. The World Health Organisation and the Public Health Agency of Canada recognise that a suppressed viral load or correct condom use are each, on their own, highly effective methods of preventing transmission. However, Canadian law requires both conditions be met to avoid a duty to disclose.
Public Health Concerns
Some argue that criminalising non-disclosure may discourage HIV testing. If people do not get tested, they cannot know their status, will not receive treatment, and may become more infectious.
Disproportionate Impact
The law has been criticised for disproportionately affecting marginalised groups, women in abusive relationships, and those without adequate access to treatment who may struggle to achieve a low viral load.
International Comparison
Canada is an outlier in criminalising HIV non-disclosure. Most other countries focus on prosecuting people who knowingly and intentionally transmit the virus. In California, prosecutors must prove specific intent to transmit HIV and actual transmission. In England and Wales, there is no legal obligation to disclose, though “reckless transmission” is illegal.
How Can You Protect Yourself From Criminal Liability?
If you are living with HIV, providing disclosure to your partner is important. Consider the following steps:
- Tell sexual partners you are HIV-positive before sex using clear, direct language such as “I have HIV” or “I am HIV positive.”
- Ensure your partner understands what HIV means and how it is transmitted
- If you disclose online, by text, or email, save the communication as proof
- If you disclose in person, consider having a witness or having your partner sign a document confirming they know your status
- Maintain records of counselling sessions with healthcare workers where disclosure is discussed
- Keep records of your viral load test results
Have You Been Charged With HIV Non-Disclosure?
If you are facing charges related to HIV non-disclosure, the stakes are extremely high. Aggravated sexual assault carries severe penalties, including potential life imprisonment and sex offender registration. The law in this area is complex and continues to evolve.
Pyzer Criminal Lawyers has over two decades of experience defending clients facing serious criminal charges throughout Toronto and the GTA. We understand the complexities of HIV non-disclosure cases and the scientific evidence that may be relevant to your defence. Contact us at (416) 658-1818 for a free, confidential consultation to discuss your case.
This article provides general legal information only and should not be construed as legal advice. Laws and their interpretation may change, and the application of law to specific circumstances requires professional legal assessment. If you have questions about a legal matter, please contact us for a free consultation.
