Canada’s Criminalization of HIV Nondisclosure may be More Dangerous than the Disease Itself
This column is an opinion from Ava Danyluk and has been prepared and submitted as an assignment for the Masters of Public Policy at the University of Calgary. This column aims to garner support among the Canadian legal and policy communities to encourage updated common law and governmental action.
Many Canadians would agree that if their sexual partner had Human Immunodeficiency Virus (HIV), they would want to know about it before consenting to sexual activity – the Canadian criminal law upholds this value. But what if I told you there was a 0% chance of you being infected by HIV, and a very high risk to your HIV positive partners’ safety if they made the difficult decision to disclose, would you feel the same way?
The Problem with HIV Criminalization
Prior to the 2012 Supreme Court of Canada (SCC) ruling in R v Mabior , the Canadian criminal law was extremely harsh on people with HIV who failed to disclose their status to their sexual partners. In R v Cuerrier, Cuerrier was charged with and convicted of aggravated assault for failing to disclose his HIV positive status to two women, despite neither of them contracting the virus.
The criminal law regarding HIV nondisclosure was clarified in Mabior, where the accused was charged with fraud vitiating consent under section 265(3)(c) of the Criminal Code and aggravated sexual assault under section 273 of the Criminal Code, meaning that the women who engaged in sexual activity with Mabior only consented to sex under the deceit or falsehood that he did not have HIV, and therefore what was consensual sex became assault. In Mabior, the SCC held that a person with HIV must disclose their positive status when there is a “realistic possibility of transmission”. The legal test coming out of Mabior became that there is no duty to disclose HIV status if you have a low viral load (1,500 copies per millilitre of the virus or less) and you use a condom.
Failure to abide by this strict legal test leaves you vulnerable to criminal charges of aggravated assault, aggravated sexual assault, and fraud vitiating consent, for “endangering the life of the complainant”. These charges carry a potential prison sentence of 14 years, even if no transmission occurs. Mabior has turned a public health issue into a criminal law issue, and because lawyers and judges are not health experts, prosecutors must call expert evidence when making their case. Therefore, we have accused individuals sitting in custody waiting for an HIV expert to be available to testify. This is a procedural fairness issue.
An important caveat is that this 2012 legal test was not meant to stand the test of time. Chief Justice McLachlin at the conclusion of her reasons explicitly stated, “this general proposition does not preclude the common law from adapting to future advances in treatment and to circumstances where risk factors other than those in this case are at play.”
In 2018, Jody Wilson-Raybould, then Minister of Justice and Attorney General of Canada, issued new directives that seek to limit the prosecution of HIV nondisclosure. Specifically, she said there should be no criminal prosecution where the accused has maintained a suppressed viral load OR does not have a suppressed viral load but used condoms or engaged only in oral sex. These directives, however, only apply to the territories and the provinces are lagging behind.
Thus far, only Ontario, British Columbia, Alberta and Quebec have sent limiting instructions regarding prosecution for HIV nondisclosure, and there remain concerns about whether these instructions go far enough to protect people living with HIV. Where is the clarifying common law test in line with these directives and Justice McLachlin’s sentiments?
The Medicine
A person who is HIV positive, and is taking anti-retroviral therapies (ARTs; a drug cocktail which suppress the virus) as prescribed, has a 0% chance of transmitting the virus to another person, even if they don’t wear a condom during sex. Barriers to ARTs include cost (only 6/13 provinces and territories fully cover ARTs) culture, and stigma.
The Canadian criminal law has contributed to this stigma by blaming individuals for the alarming spread of HIV among Canadians. This associated stigma then discourages people from getting tested for HIV and increases the number of infections within Canada. We need to shift the blame from individuals who are living with HIV to governments that fail to eliminate barriers to ARTs, and systems that perpetuate the stigma that HIV is unlike other illnesses, in that it is shameful.
Some may argue that it is not hard to follow the rule set in Mabior. All a person has to do in order to be legally compliant is disclose their status and wear a condom. But here are the facts: Indigenous Canadians account for 14% of new HIV infections within Canada, but only make up 4.9% of Canada’s total population, 1 in 4 people living with HIV in Canada is a woman, 80% of women living with HIV in Canada have experienced violence, and if a woman is sexually assaulted she is still legally obligated to disclose her HIV status to her assaulter regardless of the danger she faces.
There is a disproportionate amount of vulnerable people living with HIV in Canada, and women have reported being threatened, assaulted, abandoned, shamed, and outed to friends and family as living with HIV after disclosure to their sexual partners. So, for someone living with HIV, forgetting to wear a condom could result in 14 years of prison, even where there is no chance of transmission, and the risk to their personal safety is significantly heightened.
The Solution
If someone is on ARTs, meaning they have a suppressed viral load, they should not face criminal charges regardless of failure to disclose or wear a condom. HIV should be treated in the same manner as other chronic illnesses, with care and compassion towards the affected individual. Instead of putting individuals at risk, governments need to step up to make ARTs accessible, as science has proven that they work as an effective and safe long-term solution to stopping the spread of HIV in Canada. This means that ARTs need to be universally covered within Canada, and HIV testing and treatment needs to be encouraged by health care professionals. Encouraging testing and treatment will require public health and the Canadian criminal law to make efforts to decrease the stigma associated with living with HIV. If the Canadian common law is going to turn public health matters into criminal matters, as they have done with HIV nondisclosure, the law needs to at least keep up with medical advancements. Therefore, there should be a new SCC ruling that clarifies the Mabior test.
About the Author: Ava Danyluk is a second-year law student who is pursuing a dual JD/MPP at the University of Calgary. She has a background working in Indigenous Health and is passionate about access to care and justice, equity, and social issues.