Criminal Justice System's Response to Non-Disclosure of HIV
Part C: The Criminal Law and HIV Non-Disclosure
The focus of this report is on the criminal justice system’s response to HIV non-disclosure cases. Other HIV-related cases were also examined, such as cases involving forced sexual activity where transmission of HIV, or exposure to it, is an aggravating factor for sentencing purposes, as well as spitting, needle stick and other types of assaultive conduct aggravated by transmission, or the risk of transmission, of HIV. However, these types of cases raise different legal and policy issues, given that the precipitating conduct itself (e.g., forced sexual activity, spitting, needle sticks etc.) constitutes an assault.
In HIV non-disclosure cases, the criminal law applies where a person, who knows they are HIV positive and infectious, transmits HIV to others or exposes others to a realistic possibility of HIV transmission without affording their sexual partner the opportunity to choose whether to assume that risk. In Canada, a range of Criminal Code offences have been applied in HIV non-disclosure cases, depending on the facts of the case, including criminal negligence causing bodily harm (section 221), and common nuisance, (section 180).Footnote 35 Courts have found that a complainant’s consent to sexual activity may be vitiated by fraud if the accused misrepresented or failed to disclose their HIV status. In such circumstances, the assault (sections 266 to 268) or sexual assault (sections 271 to 273) offences have been applied; most HIV non-disclosure cases have involved aggravated assault or aggravated sexual assault charges, given the serious health consequences posed by HIV/AIDS. These offences may also apply in cases involving other sexually transmissible infections (STIs), although most of the STI cases that come to the attention of law enforcement concern HIV. The Criminal Code contains no HIV or other infection-specific offences.
The Supreme Court of Canada (SCC) has considered HIV non-disclosure on four occasions, i.e., in 1998 (Cuerrier), 2003 (Williams) and 2012 (Mabior and D.C., companion cases that were decided at the same time). Cuerrier establishes the test that determines when fraud vitiates consent for the purposes of the assault and sexual assault offences in HIV non-disclosure cases, Mabior further refines this test and Williams addresses when a person may be convicted of attempted aggravated assault/sexual assault in HIV non-disclosure cases. The Cuerrier and Mabior decisions also address important policy considerations that provide guidance on the SCC’s intended scope of the law in this context.
This Part discusses the law establishing when fraud vitiates consent to sexual activity in HIV non-disclosure cases with reference to the relevant SCC jurisprudence, as well as to post-Mabior jurisprudence interpreting it. It also includes a discussion of the SCC’s policy considerations in developing the law in this context, as well as both a quantitative and qualitative analysis of reported HIV non-disclosure case law from 1998, when the SCC handed down its Cuerrier decision, to April 2017.
1. Fraud Vitiating Consent in HIV Non-Disclosure Cases
The SCC’s Mabior decision establishes that persons living with HIV have a duty to disclose their HIV status prior to sexual activity that poses a “realistic possibility of transmission.” This legal test determines when non-disclosure or misrepresentation of HIV status (i.e., fraud) vitiates consent to sexual activity. In other words, the legal test determines when the law will not recognize the HIV negative partner’s consent to sexual activity with an HIV positive partner who has not disclosed their status. The SCC also found that future advances in HIV treatment should be taken into account when applying this test. Although courts have come to differing conclusions about when that test may be met post-Mabior, the most recent medical science on HIV transmission, summarized in Part B of this report, is relevant to that determination. These and other considerations are discussed below.
The criminal law imposes a duty to disclose HIV positive status prior to sexual activity that poses a “realistic possibility of transmission” of HIV
In its 1998 Cuerrier and 2012 Mabior decisions, the SCC established that consent to sexual activity will be vitiated by fraud under paragraph 265(3)(c)Footnote 36 of the Criminal Code for the purposes of the assault and sexual assault offences where:
- the accused does not disclose, or misrepresents, their HIV status;
- the sexual activity in question causes, or poses a significant risk of, serious bodily harm; and,
- the complainant would not have consented to the sexual activity had they known of the accused’s HIV positive status.Footnote 37
Where HIV transmission occurs in this context, serious bodily harm has been establishedFootnote 38 and consent to the sexual activity that resulted in HIV transmission is vitiated.
Where HIV transmission does not occur in this context, a significant risk of serious bodily harm is established by a “realistic possibility of transmission” of HIV.Footnote 39 If a realistic possibility of HIV transmission is established, consent to the sexual activity that resulted in exposure to risk is vitiated.
The accused must know both that they are HIV positive and that they are at risk of transmitting HIV to others. Evidence that the accused has received counselling from a medical practitioner about that risk is usually sufficient to show knowledge of infectiousness.
The law is clear, therefore, that persons living with HIV must disclose their HIV positive status before engaging in sexual activity that poses a realistic possibility of HIV transmission in order to avoid criminal liability.
A “realistic possibility of transmission” is negated where viral loads are low and condoms are used
On the basis of the medical evidence before the SCC in 2012, in Mabior, the Court found that a realistic possibility of transmission is negated by evidence that the accused’s viral load was low or undetectable at the time of the sexual activity in question and condom protection was used, which is a finding of fact. Consistent with that finding, the Court also found that evidence of non-disclosure and sex without a condom establishes the Crown’s case on a prima facie basis. At that point, “a tactical burden”Footnote 40 may fall on the accused to raise a reasonable doubt as to whether the realistic possibility of transmission test was met, e.g., by calling expert evidence as to the degree of risk posed by the sexual activity in question.
The SCC also expressly acknowledged that advances in medical treatment of HIV may narrow the circumstances in which there is a duty to disclose HIV positive status. The general proposition that a low viral load and condom use together do not give rise to a duty to disclose does not preclude the common law from adapting to future advances in treatment or to circumstances where risk factors other than those considered by the SCC are at play.Footnote 41
Courts have come to differing conclusions on when the realistic possibility of transmission test is met
In its 2013 Felix decision, the Ontario Court of Appeal upheld the accused’s conviction for aggravated sexual assault in an HIV exposure case in circumstances where the accused failed to use a condom and evidence as to transmission risk or viral load was not adduced. The Court found that the accused’s actual viral load and the degree of risk posed as a result of his viral load were irrelevant in these circumstances because unprotected sex and failure to disclose HIV positive status had been established.Footnote 42 In its 2013 Murphy decision, the Ontario Superior Court of Justice, following Felix, found another accused guilty of aggravated sexual assault in an HIV exposure case in circumstances where the accused engaged in one act of unprotected sexual intercourse and the medical evidence adduced at trial showed that her viral load was extremely low, i.e., under 50 copies per ml of blood, as a result of treatment taken over the previous 10 years.Footnote 43 The realistic possibility of transmission test was found to have been met in these circumstances because unprotected sex and failure to disclose HIV positive status had been established.
In contrast, Nova Scotia case law has found the realistic possibility of transmission test not to have been met in circumstances involving unprotected sex and low viral loads. For example, in its 2013 JTC decision, the Nova Scotia Provincial Court acquitted an accused in an HIV exposure case involving unprotected vaginal intercourse where his viral load was under 500 copies per ml of blood. Expert evidence adduced at trial indicated a very low risk of HIV transmission in these circumstances, which was found to have negated the realistic possibility of transmission test.Footnote 44 The court held that the SCC’s factual finding in respect of low viral load and condom use does not preclude courts from considering expert evidence indicating low HIV transmission risks in other circumstances, including in cases involving unprotected sex. In its 2016 Thompson decision, the Nova Scotia Supreme Court made a similar finding, citing JTC.Footnote 45 In this case, although the court found that the realistic possibility of transmission test was negated by expert evidence indicating a very low risk of transmission, the accused was convicted of sexual assault causing bodily harm (section 272) for HIV exposure. The psychological harm experienced by the complainants was considered to be sufficient to vitiate their consent. This case has been appealed.Footnote 46
Since April 2017 when this report’s case law review concluded, a new HIV non-disclosure caseFootnote 47 has been reported, i.e., the Ontario Court of Justice’s August 2017 C.B. decision, which comes to the same conclusion as did the Nova Scotia case law noted above. In this HIV exposure case involving unprotected sexual intercourse and a very low viral load (i.e., under 60 copies per ml of blood),Footnote 48 the Ontario Court of Justice acquitted the accused of aggravated sexual assault. Citing the SCC’s Mabior and the Ontario Court of Appeal’s Felix decisions, the court held that proof of low viral load and condom use is not the only way to negate the realistic possibility of transmission test. Medical evidence adduced in this case indicating a very low risk of HIV transmission was found to have raised a reasonable doubt.Footnote 49
There is lack of agreement on which offences may apply in HIV non-disclosure cases
Although a range of offences have been applied in HIV non-disclosure cases, including in the cases decided by the SCC,Footnote 50 the Court noted, in obiter, in its 2012 Mabior decision that aggravated sexual assault is the “operative offence” in HIV non-disclosure cases because HIV endangers life.Footnote 51 Some have interpreted this statement as a direction to use aggravated sexual assault in all HIV non-disclosure cases, while others take the view that this statement was not intended to fetter prosecutorial discretion in respect of which charge to lay or offence to prosecute.Footnote 52
2. Public Policy Considerations in the SCC Jurisprudence
In its 1998 Cuerrier and 2012 Mabior decisions, the SCC considered the common law on fraud vitiating consent, the legislative history of the provision specifying that fraud may vitiate consent, and the role of the Charter of Rights and Freedoms (Charter) in interpreting it, including numerous matters of public policy. These considerations provide an indication as to the type of HIV non-disclosure cases envisaged by the SCC to demonstrate sufficient culpability to merit the application of the criminal law, along with its attendant consequences. The SCC’s observations in this regard illustrate the complex and sometimes competing interests that the Court was attempting to balance. For example, the Court notes the following:
- Where public health interventions have failed, the criminal law has a role to play in deterring persons living with HIV from putting others’ lives at risk and in protecting the public from those who refuse to abstain from high risk activities.Footnote 53
- The relevant legal test in HIV non-disclosure cases should be interpreted in light of the Charter values of equality, autonomy, liberty, privacy and human dignity, which require respect for sexual partners as autonomous, equal and free persons with the right to refuse sexual intercourse.Footnote 54 The law must strike a balance between these interests and “the need to confine the criminal law to conduct associated with serious wrong and harms.”Footnote 55
- Subjecting HIV positive persons who act responsibly and pose no risk of harm to others to the criminal law “is arguably unfair and stigmatizing to people with HIV, an already vulnerable group.” Such persons “should not be put to the choice of disclosing their disease or facing criminalization.”Footnote 56
- The bar for criminal liability must not be set too high or too low. A standard of any risk arguably sets the threshold for criminal conduct too low; whereas, limiting the criminal law to cases where the risk is high “might condone irresponsible, reprehensible conduct.”Footnote 57
3. Quantitative Analysis of Reported HIV-Related Cases (1998 to April 2017)
All reported HIV-related cases in Canada from 1998 to April 2017, including HIV non-disclosure cases, were reviewed to illustrate the types of HIV-related cases that come to the attention of law enforcement, how HIV non-disclosure cases are situated within this context, as well as the nature of HIV non-disclosure cases generally. That information is provided below:
- Ninety (90) reported HIV-related casesFootnote 58 from 1998 to April 2017, were identified. Of these 90 cases:
- 59 involved HIV non-disclosure (66%);
- 17 involved non-sexual contact (19%); and,
- 14 involved forced sexual contact (16%).
- Of the 59 HIV non-disclosure cases, 45 resulted in findings of guilt (76%):
- 22 of the 45 findings of guilt were the result of a trial;
- 22 of the 45 findings of guilt were the result of a guilty plea; and,
- One of the 45 findings of guilt involved both a guilty plea to some charges and a trial on others.
- Of the convictions per count charged (some cases involved multiple charges):Footnote 59
- 72% were for aggravated sexual assault;
- 15% were for other offences, such as attempted murder, administering a noxious thing or common nuisance; and,
- 13% were for aggravated assault.
- Of the 45 HIV non-disclosure cases that resulted in a conviction:
- 19 cases involved transmission of HIV to at least one victim (42%); and,
- 26 involved exposure to risk of transmission (58%).
- Of the 45 HIV non-disclosure cases that resulted in a conviction:
- 36 involved male offenders and female victims (80%);
- 5 involved female offenders and male victims (11%); and,
- 4 involved male offenders and male victims (9%).
Where described by the court, the nature of the sexual acts included vaginal, anal, and oral sexual contact.
Sentencing information was available in 43 cases. Four cases involved non-custodial sentences (one absolute discharge and three conditional sentences). The remaining 39 cases involved the following periods of imprisonment:
- 1 day to 2 years less a day (7 cases or 18%);
- 2 to 5 years less a day (12 cases or 31%);
- 5 to 7 years less a day (7 cases or 18%);
- 7 to 10 years less a day (4 cases or 10%);
- 10 to 15 years less a day (6 cases or 15%);
- 18 years (2 cases or 5%); and
- Life imprisonment and dangerous offender designation (1 case or 3%).
4. Qualitative Analysis of Reported HIV Non-Disclosure Cases (1998 to 2017)
A qualitative analysis of reported HIV non-disclosure cases decided since the SCC’s 1998 Cuerrier decision (59 cases) shows that HIV non-disclosure cases involve a broad range of blameworthy conduct. For example, according to the case law, factors indicating a higher level of culpability include:
- Failure to comply with public health interventions;Footnote 60
- Specific intent to infect others or consciously placing others at risk of infection;Footnote 61
- Continuing non-disclosure of HIV;Footnote 62
- Deliberate non-use of antiretroviral medication;Footnote 63
- Transmission of HIV;Footnote 64
- Active misrepresentation of HIV positive status;Footnote 65
- Absence of remorse;Footnote 66 and,
- Vulnerability of complainants, for example due to youth or cognitive impairment.Footnote 67
And factors indicating a lower level of blameworthiness include:
- Reckless conduct;Footnote 68
- Difficult life circumstances;Footnote 69
- Spontaneous or “one-off” sexual acts without disclosure, as opposed to an ongoing pattern of risky behavior;Footnote 70
- Remorse;Footnote 71
- Compliance with the efforts of authorities to address any risks posed by the accused to others;Footnote 72
- Use of condoms;Footnote 73 and,
- Evidence that the accused was abused by the complainant.Footnote 74
Generally, cases involving high levels of blameworthiness tend to involve a pattern of conduct that routinely places numerous, and often vulnerable, complainants at a high level of risk, which indicates intention to transmit HIV. Such cases often involve conduct that shows a complete disregard for public health interventions and the well-being of others for the sole purpose of achieving sexual gratification. These cases may involve transmission of HIV to some, but not all, of the complainants or, in some cases, no transmission, despite the high risk behavior of the accused. HIV non-disclosure cases reflecting factors that indicate higher levels of blameworthiness tend to involve male accused and female complainants.
Cases involving lower levels of blameworthiness generally involve spontaneous or isolated sexual acts where the accused has not turned their mind to the risk posed, sometimes as a result of difficult life circumstances, which in some cases explain their contraction of HIV in the first place. Case law refers to such conduct as reckless, as opposed to intentional. HIV non-disclosure cases reflecting factors that indicate lower levels of blameworthiness tend to involve Indigenous and female accused.
Notably, some cases involve factors that indicate both higher and lower levels of blameworthiness: for example, transmission of HIV but in the context of difficult life circumstances that may have resulted in a lack of, or reduced, access to health care and other services.
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