Criminal Justice System's Response to Non-Disclosure of HIV

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Part H: Summary of the Evidence and Conclusions

This Part summarizes the evidence examined in this report and outlines the key conclusions that can be drawn from the foregoing broad review of the Canadian criminal justice system’s response to HIV non-disclosure. These conclusions may serve as best practices for the development of any new responses to HIV non-disclosure cases.

Key points raised by the evidence include the following:

• The public health and criminal justice systems have very different objectives. While public health objectives include preventing disease, prolonging life and promoting human health, criminal justice objectives include maintaining a just, peaceful and safe society by establishing a criminal justice system that deals fairly and appropriately with culpable conduct that causes or threatens serious harm to individuals or society.^{Footnote 146} Because the criminal law is a blunt instrument, it should be engaged only when other means of social control are inadequate or inappropriate.^{Footnote 147} As the SCC stated in its 1998 Cuerrier decision, the criminal law has a role to play in cases involving sexual activity and non-disclosure of HIV, where public health interventions have failed and the sexual activity at issue poses a risk of serious harm.
• HIV is first and foremost a public health issue. Public health authorities’ efforts to detect and treat HIV have resulted in significantly improved health outcomes for those living with HIV in Canada and prevention of its onward transmission, as evidenced by the relevant medical science. Accordingly, promotion of HIV testing, particularly in populations at risk of HIV infection, is key to preventing onward transmission of HIV; early detection and treatment improves health outcomes and prevents onward transmission by those who are unaware of their HIV status.
• Canada’s efforts to detect and treat HIV have resulted in the majority of persons estimated to be living with HIV in Canada knowing their status and receiving appropriate treatment. Canada’s commitment to the international 90-90-90 targets should result in an even greater number of Canadians living with HIV knowing their status and receiving treatment in the near future. It can, therefore, no longer be assumed that a person living with HIV in Canada is at risk of transmitting it.
• Statistics show that persons from marginalized backgrounds, particularly Indigenous, gay and Black persons, are more likely than others to be living with HIV in Canada. Accordingly, criminal laws that apply to HIV non-disclosure are likely to disproportionately impact these groups. Although HIV testing rates have increased steadily in all Canadian jurisdictions for which that information is available, it is not possible to know whether testing rates in populations vulnerable to HIV infection have increased.
• Sexual activity, regardless of condom use, with an HIV positive person who is taking HIV treatment as prescribed and has maintained a suppressed viral load (i.e., under 200 copies of HIV per ml of blood) poses a negligible risk of transmission.
• Certain types of sexual activity with HIV positive persons pose a low risk of transmission. These include:
  • Sex without a condom or oral sex with a person who is on treatment, but has not maintained a suppressed viral load;
  • Sex with a condom with a person who is not on treatment; and,
  • Oral sex with a person who is not on treatment.
• However, other factors may increase the risk of these otherwise low risk types of sexual activity:
  • In cases involving persons who are on treatment but have not maintained a suppressed viral load, adherence to the prescribed treatment regimen is critical to reducing the risk of transmission;
  • In cases involving persons who are not on treatment, an isolated act of sexual intercourse with effective condom use is highly unlikely to pose a significant risk of transmission; whereas, multiple acts of sexual intercourse over a significant period of time pose higher risks, particularly where condoms are not consistently and effectively used;
  • In cases where condoms are used but subsequently break, disclosure of HIV positive status immediately after exposure allows the HIV negative sexual partner to access post-exposure prophylaxis, which significantly reduces the risk of transmission;
  • In cases involving oral sex, both oral sex without ejaculation and cunnilingus pose a lower risk than does oral sex with ejaculation by the person living with HIV where that person is untreated.
• The criminal law applies to HIV positive persons where they fail to disclose, or misrepresent, their HIV status prior to sexual activity that poses a realistic possibility of transmission. The most recent medical science on HIV transmission is determinative of whether this legal test is met. These cases involve a broad range of conduct, reflecting both higher and lower levels of moral culpability.
• HIV non-disclosure cases reflecting higher levels of blameworthiness are more likely to involve young, female victims and male offenders, consistent with the gendered power imbalances evident in many coercive sexual conduct cases.
• Cases involving Indigenous and female accused are more likely to involve factors reflecting lower levels of blameworthiness. Furthermore, marginalized persons are more likely to lack access to health care and other services.
• Although HIV non-disclosure has implications for both public health authorities and the criminal justice system, public health and criminal justice responses are not often coordinated.

The following conclusions can be drawn from the evidence reviewed:

• Consistent with the relevant SCC jurisprudence, the criminal law should not apply to persons living with HIV who have engaged in sexual activity without disclosing their status if they have maintained a suppressed viral load (i.e., under 200 copies per ml of blood), because the realistic possibility of transmission test is not met in these circumstances. A person living with HIV who takes their treatment as prescribed is acting responsibly.
• The criminal law should generally not apply to persons living with HIV who: are on treatment; are not on treatment but use condoms; or, engage only in oral sex (unless other risk factors are present and the person living with HIV is aware of those risks), because the realistic possibility of transmission test is likely not met in these circumstances.
• Unprotected sex with an HIV positive person who has not disclosed their status can no longer be considered to establish a prima facie case of HIV non-disclosure as evidence of treatment and viral load will always be relevant to determining whether the realistic possibility of transmission test is met. Moreover, the majority of persons living with HIV in Canada are on treatment, which significantly reduces the risk of transmission. Other types of evidence will also always be relevant, including evidence that condoms were used effectively and consistently and that the only sexual activity at issue was oral sex.
• In cases where public health interventions have failed to address high risk conduct, the criminal law has a role to play in protecting the individuals who may be exposed to HIV transmission, as well as the public generally. This requires criminalization of both HIV transmission and exposure cases because:
  • Criminal law responses should not be dependent on a complainant contracting HIV where a person living with HIV is engaging in high risk conduct that has not resulted in transmission only by sheer chance. In these circumstances, both complainants who contract HIV and those who are exposed to it deserve the protection of the criminal law;
  • Some exposure cases involving intentional conduct may be more serious than transmission cases involving reckless conduct; for example, public health interventions are more likely to be effective where irresponsible conduct results from a need for assistance in managing HIV, rather than the desire for sexual gratification alone.
• Canada’s criminal law approach to HIV transmission and exposure cases should reflect the varying levels of blameworthiness in these cases, for example:
  • In HIV cases that involve lower levels of blameworthiness, such as recklessness, as opposed to intention to transmit HIV, non-sexual offences may more appropriately reflect the wrongdoing committed. In such cases, intent to place others at risk purely for sexual gratification purposes is not at play;
  • HIV exposure cases may not have resulted in transmission because the person living with HIV has taken steps to prevent transmission (e.g., condom use and/or treatment). These cases must be distinguished from those involving a pattern of high risk conduct that, only by chance, did not result in transmission;
  • Non-criminal responses should be considered in appropriate cases, in particular where high risk conduct is the result of lack of access to health care and other services.
• Collaboration between public health and criminal justice officials at all stages of the criminal justice process may assist in achieving appropriate outcomes in HIV non-disclosure cases. Public health authorities may have important information about whether a person who has come to the attention of law enforcement has been acting responsibly, which may affect law enforcement’s determination of whether: the criminal justice system should be engaged at all; non-criminal responses should be pursued; or, the protection of the criminal law is required.
• Public education on HIV generally, and HIV transmission risks specifically, would assist in addressing the stigma experienced by persons living with HIV. Stigmatization is often the result of a lack of knowledge about HIV and the way it is transmitted.

All of these possible measures are capable of being implemented within the existing legal framework governing HIV non-disclosure cases and would assist in ensuring that, as the SCC called for, the criminal law is applied only to “conduct associated with serious wrong and harms.”^{Footnote 148} In particular, the development of policy statements and/or prosecutorial guidelines across Canada that address these issues could further assist in achieving greater consistency in the application of the law. Alternatively, criminal law reform could result in greater legal certainty, in particular regarding the role of the most recent medical science. However, law reform impacts the scope of the criminal law, not decisions about how to address cases that fall within that scope. Moreover, law reform may require enacting HIV-specific provisions, which many stakeholders have opposed on the basis that this would increase the stigma experienced by persons living with HIV.

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