HIV in Canada: A primer for service providers

 

Criminalization of HIV non-disclosure

Key Points

  • Canadian legislation states that people with HIV have a duty to disclose their HIV status before engaging in sexual behaviours that pose a “realistic possibility” of transmitting HIV to another person.
  • At least 184 people who allegedly failed to disclose their HIV status have been charged with criminal offences in Canada. There is no evidence that criminalization of HIV non-disclosure acts as a deterrent against participation in behaviours that can transmit HIV.
  • The legal system’s interpretation of the risk of transmission during sex lags in its uptake of current knowledge about the impact of effective HIV treatment and undetectable viral load.

According to the Supreme Court of Canada’s 1998 decision in R vs Cuerrier, people with HIV have a legal duty to disclose their HIV status before engaging in sexual relations that pose a “significant risk” of transmitting the virus. In 2012, this duty was made more precise in two decisions from the Supreme Court. Those rulings stated that there is duty to disclose before any sexual relations that pose a “realistic possibility” of transmission. In the decisions, the court ruled that individuals are not required to disclose their HIV status before having vaginal sex if a condom is used and the HIV-positive person has a “low” HIV viral load. In one of the decisions, the court considered an HIV viral load of 1,500 copies of the virus or fewer per millilitre of blood to be “low.” Whether 1,500 will become the standard for defining “low” is not clear. The court did not rule on disclosure before other types of sex, such as anal sex or oral sex.

Criminal charges have been laid in Canada against people with HIV because their behaviour posed a real or perceived risk for transmitting HIV, or the person’s positive status was considered a factor aggravating the seriousness of other charges. By the end of 2016 at least 184 people who allegedly failed to disclose their HIV status had been charged with criminal offences in Canada. Some people with HIV have been convicted of serious criminal offences and sentenced to significant time in prison for failing to disclose their HIV status before engaging in risky behaviours. People have been charged and convicted of various crimes, including assault, common nuisance, criminal negligence causing bodily harm, murder and attempted murder, and uttering threats.

Research now tells us that people with HIV who are adherent and maintain an undetectable viral load when they are on treatment do not transmit HIV to their sexual partners. However, this information was not available to inform the 2012 Supreme Court rulings. As a result, criminal charges have continued to be brought against people with HIV who do not disclose their HIV status even though they are on treatment and maintain an undetectable viral load.

However, signs indicate that while the Canadian legal system’s response to HIV lags behind the science, it is evolving. In 2017, the federal government issued a report acknowledging that “HIV is first and foremost a medical and public health issue” and that over-criminalization of HIV non-disclosure leads to some of the negative consequence listed above. The Ontario and BC provincial governments have also issued updated guidance on prosecuting people with HIV who do not disclose to their sex partners. This guidance sets limits on when prosecution should move forward.

One of the main arguments for criminal prosecution is that it will act as a deterrent against behaviours that pose a risk for transmitting HIV to others. However, there is no good evidence to support this argument. The other main argument for criminal prosecution is that it punishes the individual for the behaviour. However, the criminalization of non-disclosure may have negative consequences, including an increase in stigma and discrimination against people with HIV, a fear of being tested for HIV, and misinterpretation by the public about risk of sexual transmission of the virus.

Resources

HIV Criminalization – Canadian HIV/AIDS Legal Network

Responding to the Criminalization of HIV Transmission or Exposure: Resources for lawyers and advocates – Canadian HIV/AIDS Legal Network

Criminal Justice System's Response to Non-Disclosure of HIV (2017) – Department of Justice, Government of Canada

Sexual Offences against Adults (2017) – Ontario Crown Prosecution Manual

Sexual Transmission, or Realistic Possibility of Transmission, of HIV (2018) – British Columbia Prosecution Service Crown Counsel Policy Manual

Expert consensus statement on the science of HIV in the context of criminal law (2018)

Sources

  1. Canadian HIV Legal Network. Rethinking Justice: 7th symposium on HIV, law and human rights: Report. Toronto: Canadian HIV Legal Network; 2017. Available from: http://www.aidslaw.ca/site/rethinking-justice-7th-symposium-on-hiv-law-and-human-rights-report/?lang=en
  2. Canadian HIV Legal Network. Info sheets: criminal law and HIV non-disclosure in Canada. Toronto: Canadian HIV Legal Network; 2014. Available from: http://www.aidslaw.ca/site/criminal-law-and-hiv/
  3. Canadian HIV Legal Network. HIV non-disclosure and the criminal law: a summary of two recent decisions of the Supreme Court of Canada. Toronto: Canadian HIV Legal Network; 2012. Available from: http://www.aidslaw.ca/site/hiv-non-disclosure-and-the-criminal-law-an-analysis-of-two-recent-decisions-of-the-supreme-court-of-canada/
  4. Loutfy M, Tyndall M, Jean-Guy Baril J-G, et al. Canadian consensus statement on HIV and its transmission in the context of criminal law. Canadian Journal of Infectious Diseases and Medical Microbiology. 2014; 25(3): 135–140. Available from: http://www.hindawi.com/journals/cjidmm/2014/498459/abs/
  5. Hastings C, Kazatchkine C, Mykhalovskiy E. HIV criminalization in Canada: key trends and patterns. Toronto: Canadian HIV Legal Network; 2017. Available from: http://www.aidslaw.ca/site/hiv-criminalization-in-canada-key-trends-and-patterns/?lang=en
  6. Caivano N, Ka Hon Chu S. U=U and the overly-broad criminalization of HIV nondisclosure. Toronto: CATIE; 2017. Available from: http://blog.catie.ca/2017/06/06/uu-and-the-overly-broad-criminalization-of-hiv-nondisclosure/