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The Criminalization of HIV non-disclosurein Canada

The 34th Canadian Congress on Criminal JusticeOctober 2 to 5, 2013

Cécile KazatchkineSenior Policy AnalystCanadian HIV/AIDS Legal Network

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About the Canadian HIV/AIDS Legal Network

The Canadian HIV/AIDS Legal Network (www.aidslaw.ca) promotes the human rights of people living with and vulnerable to HIV/AIDS, in Canada and internationally, through research, legal and policy analysis, education, and community mobilization. The Legal Network is Canada’s leading advocacy organization working on the legal and human rights issues raised HIV/AIDS.

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Starting point: The Cuerrier decision in 1998

Non-disclosure may amount to fraud vitiating consent and thus transform consensual sex into a (sexual) assault when:

non-disclosure exposed an individual to a “significant risk” of serious bodily harm (i.e., a significant risk of HIV transmission); and

the individual would not have consented to sex had he/she known of his/her sexual partner’s HIV status.

There is an “aggravated” assault when a (sexual) assault endangers the individual’s life.

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2012: Two cases before the Supreme Court of Canada

CA Manitoba decision in R. v. Mabior: proper use of condom or undetectable viral load decreases

risk to the point where it is not “significant.”

CA Quebec decision in R. v. D.C.: single instance of unprotected vaginal intercourse, where

the accused woman had an undetectable viral load, is not a “significant risk.”

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Mabior and D.C., SCC 2012:

People have a duty to disclose before having sex that poses “a realistic possibility of HIV transmission.”

Not disclosing in such circumstances means a person could be convicted of aggravated sexual assault.

No need for actual transmission. The crime is about non-disclosure.

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Mabior and D.C. 2012 SCC decisions: a major step backward

In the Court’s view, almost any risk is considered a “realistic possibility of HIV transmission.”

Using a condom OR having a low viral load is not sufficient to preclude criminal liability in cases of HIV non-disclosure before vaginal sex.

It is only where a condom is used AND the HIV-positive partner’s viral load is low that there is no duty to disclose before vaginal sex under the criminal law.

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Mabior and D.C. 2012 SCC decisions

No distinction between silence and a lie.

No distinction based on the circumstances of a particular encounter, including the type of relationship.

People can be prosecuted even if they had no intent to harm their partner.

People can be charged with aggravated sexual assault for not disclosing their status.

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Perpetuating injustice

“What a terrible irony that we have come to a place where the medications we fought for will allow us to live a relatively ‘normal’ quality of life and now we are going to go to jail for doing so.”

— Louise Binder, “No test, no arrest: criminal laws to fuel another HIV epidemic,” OpenDemocracy.net, July 27, 2012

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Perpetuating injustice

A failure to appropriately take into account the science related to HIV.

A disproportionate and overly-broad use of the criminal law.

A potential disproportionate impact on the most vulnerable.

Remaining uncertainties to be tested on the backs of people living with HIV.

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Poor public policy

HIV criminalization and public health

What do international experts say?

UNAIDS, Ending overly broad criminalisation of HIV non-disclosure, exposure and transmission: Critical scientific, medical and legal considerations, 2013

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Recent legal developments

Two Court of Appeal decisions in Ontario (R. v. M and R. v. F: 2013 ONCA 414; 2013 ONCA 415)

“Mabior does not suggest that expert evidence of the basic risk of HIV transmission for intercourse will be required in every case

to ground a conviction for aggravated sexual assault arising from unprotected acts of intercourse – anal or vaginal – with an

HIV– positive partner. Rather, Mabior holds that a realistic possibility of transmission of HIV is negated by evidence that condom

protection was used and the accused’s viral load was low at the time of intercourse.” (R. v. F. at para. 53)

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Real life stories: Guilty plea in Yellowknife, Sentencing April 2013

After spending two years in pre-trial detention, a 27-year-old Aboriginal man pled guilty to two counts of aggravated sexual assault in Yellowknife for not disclosing his status to two women. In one instance a condom was used. In the other instance neither the accused nor the complainant could remember if a condom was used because they were both too drunk. Neither of the complainants was infected. The young man was sentenced to more than 3 years in prison. He is now registered as a sexual offender for life.

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Real life stories: J.M. Case, Barrie, Ontario, Summer 2013

For immediate release

COURTHOUSE PROTESTORS CONDEMN “WITCH-HUNT” BY CROWN PROSECUTORS AGAINST PEOPLE LIVING WITH HIV, CALL FOR ACTION BY ATTORNEY GENERAL

TORONTO, July 8, 2013 —AIDS activists, feminists and legal experts are gathering today at the Barrie Courthouse to protest the unjust criminal prosecution of Ontario woman “JM.” JM faces one of the most serious charges under the Criminal Code — aggravated sexual assault — for allegedly not disclosing her HIV-positive status during sexual activity that carried little or no risk of transmission.

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Challenging the law; Challenging Crown practices

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Resources exist for people living with HIV, lawyers and service providers

For more information on HIV criminalization contact the Canadian HIV/AIDS Legal Network (www.aidslaw.ca)

Resource kit for defence lawyers available at www.aidslaw.ca/EN/lawyers-kit. Lawyers can also contact the Legal Network

Community kit HIV disclosure and the law at www.aidslaw.ca/EN/community-kit.

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Thank you!

Canadian HIV/AIDS Legal Network: www.aidslaw.ca

Ontario Working Group on criminal and HIV exposure: www.chle.ca

Cecile KazatchkineSenior Policy AnalystCanadian HIV/AIDS Legal NetworkPhone : +1 416 595-1666 (ext. 231) ckazatchkine@aidslaw.ca