VIH Info Droits

Criminalization of HIV


Version Française ➥

This document is intended as a guide to the legal environment surrounding the criminalization of HIV non-disclosure in Québec, for people living with HIV (and those working with them).

In no way does COCQ-SIDA intend for this document to encourage the use of criminal law in cases of non-disclosure. 

Given the lack of clarity in the documents available and the complexity of the legal system, COCQ-SIDA believes that people living with HIV are entitled to a better understanding of how the criminal law might target them. By making this information available to key communities, we believe they will be better equipped to deal with the injustice that constitutes the criminalization of non-disclosure. 

1. Background

HIV criminalization is strongly condemned by UNAIDS and other international bodies. Like UNAIDS, COCQ-SIDA considers (in a position paper available only in French) that criminal law should only be used in cases of intentional and real HIV transmission, and should not be used against people who had no intention of causing harm to others. COCQ-SIDA also considers that criminal law should not be used against people living with HIV who take the necessary precautions to protect their partners. However, HIV criminalization remains a live issue in Canada. Canada criminalizes the non-disclosure of HIV-positive status, and as such, has one of the world’s most severe approaches to HIV criminalization. 

In Canada,1 a person living with HIV must disclose their HIV-positive status to their partner before sexual activity that poses a “realistic possibility of HIV transmission.” If a person does not disclose their status when they had to, they could face aggravated sexual assault charges. As such, a person can be charged, stand trial and be found guilty regardless of their intention to pass on HIV, and regardless of whether transmission actually occurred. 

No criminal statute in Canada explicitly criminalizes HIV non-disclosure. The legal duty to disclose before sex has been established by the courts and by judges interpreting the Criminal Code

In a 1998 decision, the Supreme Court of Canada found that people living with HIV must disclose their status before engaging in sex that carries a “significant risk of serious bodily harm.”2 In two 2012 decisions, the Court specified that such a risk is present when there is a “realistic possibility of HIV transmission.”3

As such, in Canadian law, there is no blanket duty to disclose HIV-positive status before sex. The legal duty to disclose before sex only exists in cases where there is a “realistic possibility of HIV transmission.” 

3. What is a “realistic possibility of HIV transmission?”

In its 2012 decisions,4 the Supreme Court of Canada does not define what is a “realistic possibility of HIV transmission.” However, it does mention that there is no realistic possibility of transmission when the HIV-positive person has a low viral load (less than 1,500 copies/ml) AND a condom is used.5

When these two criteria are present, the person living with HIV does not have to disclose their HIV-positive status to their partner before sex because, according to the Court, there is no “realistic possibility of HIV transmission.” 

3.1 What is a viral load?

Viral loadQuantity of HIV in the blood. Generally measured in numbers of virus copies per millilitre of blood.
Effective treatment reduces the viral load. Having a low viral load improves the health of the person living with HIV and reduces the risk of HIV transmission.
Undetectable or “suppressed” viral loadCanadian criminal law considers that a viral load below 200 copies/ml is “undetectable” or “suppressed.”6 The science is clear to the effect that a person who has an “undetectable” or “suppressed” viral load cannot sexually pass on the virus.7
“Low” viral loadCanadian criminal law defines a “low” viral load as being below 1,500 copies/ml.8

For a long time, prosecutors and judges considered that the combination of both a low viral load and condom use was the only way to prevent a “realistic possibility of transmission.” However, the Supreme Court also mentioned that other circumstances may exist in which the “realistic possibility of HIV transmission” criteria is not met, and that the law could adapt to future advances in treatment and circumstances where different risk factors are at play.9

However, police officers, prosecutors, judges and legislators are slow—even reluctant—to catch up with science. As a result, the criteria of “realistic possibility of HIV transmission” in the criminal law context does not systematically reflect the most recent scientific knowledge.

4. Why is the charge of aggravated sexual assault most often used in cases of non-disclosure?

As mentioned earlier, HIV non-disclosure is not addressed in the Criminal Code. HIV non-disclosure cases are usually pursued under the provisions set out for sexual assault, especially “aggravated sexual assault”.10

As the HIV Legal Network explains,  the argument used is as follows: if there is a “realistic possibility of HIV transmission,” failure to disclose HIV-positive status to a partner constitutes “fraud.” Under article 265 of the Criminal Code, consent to physical contact is not valid if it has been obtained by means of fraud. As such, in the eyes of the law, sex between two consenting partners could become a sexual assault if there is no disclosure. Failure to disclose is therefore likened to forced or coerced sexual relations. The “aggravated” criteria represents how HIV is seen as endangering the partner’s life. 

However, HIV science and our knowledge on transmission risks have greatly evolved since 1998, and even since 2012. The law should follow suit. In Canada, HIV infection is now considered a chronic illness, particularly thanks to the availability and accessibility of anti-retroviral (ARV) treatments. We also know that as a virus, HIV is difficult to transmit sexually, and that effective prevention methods exist. This is why charges of aggravated sexual assault, as well as the sentences, stigma and penalties that come with such charges, are often out of proportion to any potential harm.

Aggravated sexual assault is one of the most serious crimes in the Criminal Code. It carries a maximum penalty of life imprisonment and mandatory lifetime registration as a sex offender. Conviction for this offence also means that people who are not Canadian citizens face deportation. 

Resorting to sexual assault charges in cases of alleged HIV non-disclosure has been criticized. COCQ-SIDA and its partners believe that using sexual assault provisions to deal with HIV non-disclosure harms people living with HIV and further weakens the ability of sexual assault provisions to appropriately respond to sexual violence.11

5. HIV and transmission risk: What do scientists say?

In 2018, dozens of international scientific experts co-signed a consensus statement on the use of science to assess HIV transmission risk in the context of penal and criminal cases.

The following table summarizes some of the consensus statement’s conclusions. It uses the same vocabulary and risk assessment criteria as the scientific publication.12

CIRCUMSTANCERISK ASSESSMENT
Sex where the person living with HIV has an “undetectable” viral loadThere is no possibility of HIV transmission, even without a condom.
Sex where the person living with HIV has a “low” viral loadThe possibility of transmission is nil to negligible without a condom.
Sex with condomHIV cannot be transmitted when a condom is used correctly, regardless of viral load. HIV does not pass through the intact membrane of a latex or polyurethane condom.
Oral SexThe possibility of HIV transmission varies from nil to negligible in the case of oral sex performed on an HIV-positive person (including when their viral load is greater than 1,500 copies/ml) without a condom.
There is no possibility of transmission in the case of oral sex performed on an HIV-positive person when their viral load is below 1,500 copies/ml, or when a condom is used correctly, or when the HIV-negative partner is taking PrEP (pre-exposure prophylaxis).
Vaginal sexThe risk of transmission is low in vaginal intercourse without a condom when the HIV-positive partner has a viral load above 1,500 copies/ml.
The risk of transmission varies between nil and negligible when the HIV-positive partner has a viral load below 1,500 copies/ml or uses a condom, or when the HIV-negative partner is taking PrEP.
Anal sexThe risk of transmission is low during anal intercourse without a condom when the HIV-positive partner has a viral load above 1,500 copies/ml.
The risk of transmission is even lower when the HIV-positive person is the one being penetrated. It’s also lower if the HIV-positive person who is penetrating does not ejaculate inside their partner.
The risk of transmission varies from nil to negligible when the HIV-positive partner has a viral load below 1,500 copies/ml or a condom is used, or when the HIV-negative partner is taking PrEP.
A HIV-negative person is taking PrEP (pre-exposure prophylaxis)The risk of HIV infection is considerably reduced in the case of a person taking PrEP.
A HIV-negative person takes PEP (post-exposure prophylaxis)The risk of HIV infection is considerably reduced in the case of a person who takes PEP.

However, because it’s left up to lawyers and the courts in each province to interpret the science, and because they interpret the data differently, what constitutes a “realistic possibility of transmission” varies from one province to another.13

6. Obligation to disclose: The current situation in Québec

This section summarizes the state of the law when it comes to the criminalization of HIV non-disclosure in Québec, based on the relevant court decisions as well as official communications and documents issued by the authorities. This should in no case be read as legal advice, but as legal information on the current state of the law and the criteria applicable to the assessment of the “realistic possibility of HIV transmission.”

Since no clear public directive exists for prosecutors, the situation can only evolve through legal decisions or policy changes by the Directeur des poursuites criminelles et pénales (DPCP).

6.1 Circumstances where there is no duty to disclose
When there is no “realistic possibility of transmission”

In addition to the situation described in the Supreme Court decisions14 (combination of a low viral load and a condom), the DPCP now considers that the criteria of “realistic possibility of transmission” is not met when a person living with HIV takes their ARV treatment as prescribed, maintains a viral load below 200 copies/ml and has their viral load measured every four to six months. A person who meets these three criteria thus does not have to disclose their HIV status to their partners before sex, even if a condom is not used.15

This position is consistent with the one that the Ministère de la Santé et des Services sociaux du Québec (MSSS), Quebec’s health and social services department, adopted in October 2018 concerning the impact of ARV treatment on the risk of HIV transmission.16 In June 2019, the Institut national de santé publique du Québec (INSPQ), Québec’s public health agency, added that when these three elements are combined, the criteria of “realistic possibility of HIV transmission” is not met, and criminal proceedings would not be justified.17 The Guide québécois de dépistage des ITSS (the Québec guide to STBBI testing, available in French only), updated in 2019, clearly indicates that in this situation, a person living with HIV has no legal duty to disclose their HIV-positive status.18

ORALVAGINALANAL
Combination of condom + viral load below 1,500No realistic possibility of transmission.19 


No duty to disclose before sex.
No realistic possibility of tranmission.20
,21

No duty to disclose before sex.
No realistic possibility of transmission.22 


No duty to disclose before sex.
Combination of viral load below 200 (undetectable)
taking ARV treatment as prescribed
viral load test every 4-6 months
No realistic possibility of transmission.23
,24

No duty to disclose before sex.
No realistic possibility of transmission.25
,26
 
No duty to disclose before sex.
No realistic possibility of transmission.27
,28

No duty to disclose before sex.

Caution: The fact that the DPCP considers that charges should not be laid in such circumstances does not mean that a person living with HIV won’t be subjected to a police investigation.

As soon as a non-disclosure complaint is made to the police, they can investigate to find out whether the complaint is well-founded. As part of their investigation, the police can interrogate the person targeted by the complaint, question witnesses, and obtain search warrants that will allow the police to search places or obtain documents.

The investigation results will then be submitted to the DPCP. After examining the file, the DPCP will decide whether or not to institute proceedings. It is at this step that the “realistic possibility of HIV transmission” will be assessed.

As such, it will be important for the person living with HIV to demonstrate that they did not have to disclose because there was no “realistic possibility of transmission” (ex.: viral load test results, condom, prescriptions, etc.) or that disclosure did take place before the sexual encounter.

6.2 Circumstances where disclosure may be required
The “realistic possibility of transmission” will be assessed on a case-by-case basis 

In the case of oral, vaginal or anal sex with a condom, or in the case of oral sex without a condom, the DPCP indicates that the “realistic possibility of transmission” will be assessed on a case-by-case basis depending on the facts of the case and the available medical data, even if the HIV-positive person is not on ARV treatment.29

This position is consistent with that of the INSPQ, which, in a June 2019 publication, recognized that in the case of oral, vaginal or anal sex protected by a condom, or in the case of oral sex not protected by a condom, absent “elements likely to increase the risk of HIV transmission,” the risk of transmission is negligible, even if the person is not on ARV treatment.30  However, the INSPQ does not specify what they consider elements likely to increase the risk of transmission, although they do provide a few examples (expired or broken condom, presence of mouth or genital lesions).

It is difficult to determine the legal duty to disclose HIV-positive status in this context. The presence of elements likely to increase the risk of transmission and the “realistic possibility of transmission” will be assessed on a case-by-case basis, by an expert, which will then determine whether or not a person had to disclose their HIV status before sex.31

This lack of clarity on the assessment of risks in such cases means that people living with HIV cannot know with certainty whether they are legally obliged to disclose their HIV status before having sex. As such, people living with HIV who do not disclose their status to their partners in such situations could be prosecuted, even if the risk of transmission is scientifically negligible or non-existent.

Caution: Remember that once a non-disclosure complaint is filed with the police, it will investigate to determine whether or not the complaint is well-founded. Investigation results will be submitted to the DPCP, which will decide whether or not legal proceedings should be undertaken. This is the step at which the “realistic possibility of transmission” will be assessed.

As such, it will be important for the person living with HIV to demonstrate that they did not have to disclose because there was no “realistic possibility of transmission” (ex.: viral load test results, condom, prescriptions, etc.) or that disclosure did take place before the sexual encounter.

6.3 Circumstances where a person must disclose
The authorities clearly consider that a “realistic possibility of transmission” exists

The DPCP and the INSPQ are quiet about the assessment of a “realistic possibility of transmission” in certain circumstances. For instance:

  • Anal or vaginal sex without a condom when the person has a viral load higher than 200 copies/ml, with or without treatment;
  • Anal or vaginal sex without a condom when the person has a viral load below 200 copies/ml, but is not on ARV treatment or fails to have their viral load tested at least twice a year;
  • Anal or vaginal sex when the person is taking ARV treatment, but cannot attain an undetectable viral load.

Since no current policies or directives in Québec directly address these situations, people living with HIV who do not disclose their status to their partners in these situations could still face criminal charges, even if the risk of transmission is scientifically low or non-existent.

6.4 In summary: An approach that needs to be simplified
In Québec, the risk that a person living with HIV could be charged for failing to disclose their status varies greatly depending on the circumstances of the sexual act, the type of sexual act and their medical history. There are many unknowns, including, for example, elements that are likely to increase transmission risk. Overall, the burden on the person living with HIV remains excessively high: demonstrating that disclosure did occur, proving that a condom was used, demonstrating that they are taking ARV treatment as prescribed, having the ability to attain a low or undetectable viral load, demonstrating regular medical monitoring, proving the absence of STBBI-related lesions at the time of the act, and so on.

For the moment, the only criteria for evaluating the “realistic possibility of HIV transmission” in Québec are the following:

  • Low or undetectable viral load (below 1,500 copies) and use of a condom
    • No realistic possibility of transmission
  • Undetectable viral load (below 200 copies/ml) + ARV treatment + viral load tests every four to six months
    • No realistic possibility of transmission
  • Viral load above 1,500 copies/ml and use of a condom
    • Realistic possibility of transmission assessed on a case by case basis by an expert
  • Oral sex without a condom, regardless of ARV treatment
    • Realistic possibility of transmission assessed on a case by case basis by an expert

This leaves many people living with HIV in a state of uncertainty with regard to the way criminal law may or may not apply to them, depending on their circumstances or their sexual activities. This also implies that a legal duty to disclose still exists in many circumstances where the risk of transmission is nil.

6.5 Québec’s approach must go further
For COCQ-SIDA, criminalizing HIV non-disclosure for anything other than actual, intentional transmission is unfair and unjust. The current situation results in people living with HIV being criminalized simply on the basis of their HIV status. Despite positive developments, the current approach in Québec should have gone further—and must do so. Among other things, Québec could follow the lead of directives that are currently in effect elsewhere in the country to limit the unjust use of the criminal system against people living with HIV.

For example, COCQ-SIDA condemns the fact that, despite similar provisions set out in the federal directive,32Québec does not specify that the criminal law should generally not be used in cases where the person living with HIV is taking ARV treatment, even without reaching an undetectable viral load. It has been demonstrated that taking ARV treatment reduces transmission risks, even when the viral load is not suppressed. Also, not every person living with HIV is able to attain an undetectable viral load, even when on treatment. The fact that criminal liability depends on a person’s ability to reach a certain viral load creates a toxic hierarchy among people living with HIV. 

By attaching conditions to attaining an undetectable viral load (ARV treatment, lab tests every four to six months), the Québec approach also complicates a principle that, on its own, is very simple: there is no sexual transmission of the virus when the viral load is undetectable. Adding conditions results in excluding people who maintain a viral load below 200 copies/ml without taking treatment, or who only undergo medical follow-up every six to twelve months. By comparison, the federal directive simply says that criminal law should not be used in cases where a person has kept their viral load below 200 copies/ml.33

COCQ-SIDA is also concerned by the fact that the INSPQ or the DPCP do not ask prosecutors to opt for non-sexual offences, unlike the federal directive34 and unlike the recommendations issued by the House of Commons Standing Committee on Justice and Human Rights in 2019.35 As such, some people living with HIV in Québec can still be charged with aggravated sexual assault and added to the sex offenders’ registry, even if this offence in no way reflects the act they may have committed.

Lastly, it is difficult to understand why Québec continues to refuse to adopt a clear public directive or guidelines for prosecutors that would give people living with HIV more certainty about how the criminal law applies to their situation, while the federal government and other provinces have done so.

6.6 Why we ask for clear prosecutorial guidelines
For Québec to truly end the HIV epidemic, fight stigma and discrimination against people living with HIV, COCQ-SIDA considers that a clear public directive for prosecutors must be adopted, as the federal government has done along with the governments of Ontario and British Columbia. COCQ-SIDA has been demanding such a directive for more than ten years.

A directive would allow people living with HIV to truly know how criminal law could likely apply to their sexual activities, particularly in a context where the criminalization of HIV non-disclosure comes not from the Criminal Code but from judges’ interpretations of it. Without the adoption of such a directive, there is no guarantee that prosecutors will take the most up-to-date science into consideration with regard to HIV transmission risks. Unlike a directive, the current DPCP policy can easily be changed at any time. We also don’t know how often prosecutors are reminded that this policy exists. This raises questions concerning possible recourses for people who are prosecuted in error because a prosecutor did not follow the policy.

It is deplorable that people living with HIV in Québec have faced, and can still face, criminal charges for failing to disclose their HIV status to their partners, even in the absence of any intention to cause harm, even in the absence of transmission, and even where transmission risks are practically nil.

Québec must position itself as a leader in the fight against HIV and against the discrimination and stigma to which people living with HIV are subjected. Until the law itself changes, the adoption of a clear provincial directive preventing the unjust use of the criminal law against people living with HIV is what will make this possible.

7. Why does COCQ-SIDA oppose HIV criminalization?

In Canada, HIV criminalization is based on the presumption that criminal law protects individuals and serves to “encourage honesty, frankness and safer sexual practices.”36 However, no evidence demonstrates that criminal law contributes to the prevention of HIV transmission. Quite the opposite: HIV criminalization has a negative impact on public health and goes against the human rights of people living with HIV, who are often part of other communities that are marginalized, stigmatized and criminalized.

Unjust criminalization can lead to arrests, accusations, public court appearances and proceedings and guilty verdicts even in cases where transmission risks were low or nil. The use of the criminal law has a disproportionate effect on racial and sexual minorities and on women. Among other things, threats of denunciation are often used as means of revenge or to blackmail people living with HIV. The threat of criminal charges can also dissuade some women from leaving violent relationships or reporting sexual assault to the police for fear that their HIV status will be used against them.

Criminal law also accentuates the stigma and discrimination against people living with HIV. Media coverage of HIV-related cases often includes the names, addresses and photographs of people living with HIV, including on the basis of simple allegations before any guilty verdict is reached. Stigma and discrimination contribute to perpetuating the HIV epidemic. It has been widely documented that human rights violations are obstacles to HIV prevention. Criminalization also places the full responsibility of HIV prevention on the shoulders of people living with HIV, instead of focusing on proven methods to empower everyone to protect themselves.

Like UNAIDS, COCQ-SIDA considers that recourse to criminal law is not an appropriate solution for handling the HIV/AIDS epidemic. All public health responses and actions must be based on the best scientific data available, and must lead to the improvement of community and individual health. As such, contrary to the current situation in Canada and Québec, criminal law should only be used in the very exceptional cases of intentional and actual HIV transmission. Criminal law should be avoided in all other circumstances.

To read COCQ-SIDA’s full position statement, click here (in French only).

8. Resources

8.1 Are you a person living with HIV and being targeted by a non-disclosure complaint?
If you are facing a police investigation or if you are afraid you may face criminal charges, consult with a lawyer as soon as possible.

The VIH INFO DROITS service can provide legal information about the current state of the law and, as needed, accompany you through your process.

Montréal area: 514 844 2477, ext. 34
Outside Montréal (toll-free): 1 866 535 0481, ext. 34
vih-infodroits@cocqsida.com 

8.2 Do you work with people living with HIV and want to know more about this issue?
The VIH INFO DROITS service can inform you about the current state of the law. Training is also available for your members, clients and staff.

Montréal area: 514 844 2477, ext. 34
Outside Montréal (toll-free): 1 866 535 0481, ext. 34
vih-infodroits@cocqsida.com 

8.3 Are you a lawyer representing someone living with HIV in a non-disclosure case?
COCQ-SIDA’s Human Rights and HIV program can provide you with up to date research, science and recent case law, as well as refer you to resources and scientific experts.

Montréal area: 514 844 2477, ext. 32
Outside Montréal (toll-free): 1 866 535 0481, ext. 32
vih-infodroits@cocqsida.com

8.4 Are you an ally or a representative from a community organization or group that wants to be involved in ending the unjust criminalization of people living with HIV?
It is important to show broad support in favour of change. We invite you, among other things, to endorse the Community Consensus Statement of the Canadian Coalition to Reform HIV Criminalization (CCRHC).

Resources consulted

1. In June 2019, our partners at the HIV Legal Network posted a detailed document about the laws and policies that regulate HIV non-disclosure in Canada: “The Criminalization of HIV Non-disclosure in Canada Report,” June 18, 2019.
Read the document online

2. R. v. Cuerrier, [1998] 2 SCR 371. 

3. R. v. Mabior, 2012 SCC 47 and R. v. D.C., 2012 SCC 48. It is interesting to note that in 2018, the Nova Scotia Court of Appeal confirmed that psychological harm resulting from a partner’s non-disclosure is not alone sufficient to lead to the application of criminal law in the absence of a realistic possibility of transmission: R. v. T., 2018 NSCA 13.

4. R. v. Mabior, 2012 SCC 47 and R. v. D.C., 2012 SCC 48.

5. “[94] This leaves the question of when there is a realistic possibility of transmission of HIV. The evidence adduced here satisfies me that, as a general matter, a realistic possibility of transmission of HIV is negated if (i) the accused’s viral load at the time of sexual relations was low, and (ii) condom protection was used.” R. v. Mabior, 2012 SCC 47.

6. In a 2017 report, in keeping with current scientific knowledge, Canada’s Department of Justice defines a “suppressed” viral load as being below 200 copies per millilitre of blood. See the report entitled “Criminal Justice System’s Response to Non-Disclosure of HIV,” December 2017, p. 10. 
Read the document online

7. “Undetectable = Untransmittable” (U = U), as coined by the Prevention Access Campaign in their consensus statement. See: “Risk of Sexual Transmission of HIV from a person living with HIV who has an undetectable viral load,” at: www.preventionaccess.org/consensus. This was recognized in 2017 by Canada’s Council of Chief Medical Officers of Health. On World AIDS Day in 2018, Canada’s Minister of Health officially endorsed the Undetectable = Untransmittable (U=U) campaign.

8. R. v. Mabior, 2012 SCC 47, para. 100. 

9. “[95] The conclusion that low viral count coupled with condom use precludes a realistic possibility of transmission of HIV, and hence does not constitute a ‘significant risk of serious bodily harm’ on the Cuerrier test, flows from the evidence in this case. 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 considered in this case are at play.” See R. v. Mabior, 2012 SCC 47. 

10. Article 273 of Canada’s Criminal Code.
Read the document online

11. Canadian Coalition to Reform HIV Criminalization. “End Unjust HIV Criminalization: Community Consensus Statement,” November 2017.
Read the document online
LEAF (Women’s Legal Education and Action Fund), “A Feminist Approach to Law Reform on HIV Non-Disclosure,” position statement, January 2019.
Read the document online

12. Barré-Sinoussi et al., “Expert Consensus Statement on the Science of HIV in the Context of Criminal Law,” 2018.
Read the document online 

13. For example, in the Yukon, the Northwest Territories and Nunavut, the federal directive, Directive 5, applies. In Ontario, Directive 33 on sexual offences was amended in December 2017 to specify that accusations will not be levied at people who have maintained a suppressed viral load for the past six months. In British Columbia, the policy entitled “Sexual Transmission, or Realistic Possibility of Transmission, of HIV,” known by its policy code number, SEX-2, specifies, among other things, that condom use is a factor that can weigh against a legal case when non-disclosure allegations are made. In Nova Scotia, recent court decisions have broadened the criteria of “realistic possibility of HIV transmission.” This multitude of approaches has led to a cacophonic legal environment for people living with HIV in Canada. For example, Nova Scotian courts concluded that sexual intercourse with a condom (without regard for the HIV-positive person’s viral load) does not pose a “realistic possibility of HIV transmission,” but in Ontario, a man was found guilty for failing to disclose his HIV-positive status before sex with a condom. See R. v. T., 2016 NSSC 134; R. v. T., 2018 NSCA 13 and R. v. G., 2017 ONSC 6739.

14. R. v. Mabior, 2012 SCC 47 and R. v. D.C., 2012 SCC 48.

15. Directeur des poursuites criminelles et pénales (DPCP), “Position institutionnelle du DPCP à la suite de la publication du 26 juin 2019 de l’INSPQ,” September 17, 2019, 
Read the document online

16. Ministère de la Santé et des Services sociaux (MSSS), “L’effet du traitement des personnes vivant avec le VIH sur le risque de transmission sexuelle de l’infection,” department position paper, October 2018
Read the document online

17. Institut national de santé publique du Québec (INSPQ), “Obligation de divulguer son statut sérologique à ses partenaires sexuels ? Le système de justice pénale évolue,” June 26, 2019.
Read the document online

18. INSPQ, “L’obligation légale de divulguer son statut sérologique à ses partenaires sexuels,” Guide québécois de dépistage des ITSS, appendix 8, p. 205.
Read the document online

19. See DPCP, note 15.

20. R. v. Mabior, 2012 CSC 47.

21. See INSPQ, note 15. See also Guide, supra note 16.

22. See DPCP, note 15. 

23. See INSPQ, note 15. See also Guide, supra note 16.

24. See DPCP, note 15.

25. Ibid.

26. See INSPQ, note 15. See also Guide, supra note 16.

27. Ibid.

28. See DPCP, note 13. 

29. Ibid

30. See INSPQ, note 17. 

31. See DPCP, note 15. See also INSPQ, supra note 17 and Guide, supra note 18. 

32. “The Director shall generally not prosecute HIV non-disclosure cases where the person has not maintained a suppressed viral load but used condoms or engaged only in oral sex or was taking treatment as prescribed, unless other risk factors are present, because there is likely no realistic possibility of transmission.” Public Prosecution Service of Canada, “Directive 5,” November 30, 2018.
Read here

33. “The Director shall not prosecute HIV non-disclosure cases where the person living with HIV has maintained a suppressed viral load, i.e., under 200 copies per ml of blood, because there is no realistic possibility of transmission.” Public Prosecution Service of Canada, “Directive 5,” November 30, 2018.
Read the document online

34. “The Director shall prosecute HIV non-disclosure cases using non-sexual offences, instead of sexual offences, where non-sexual offences more appropriately reflect the wrongdoing committed, such as cases involving lower levels of blameworthiness.” Public Prosecution Service of Canada, “Directive 5,” November 30, 2018.
Read the document online

35. “The Committee agrees with witnesses that the use of sexual assault provisions to deal with HIV non-disclosure is overly punitive, contributes to the stigmatization and discrimination against people living with HIV, and acts as a significant impediment to the attainment of our public health objectives. The consequences of such a conviction are too harsh and the use of sexual assault provisions to deal with consensual sexual activities is simply not appropriate.” House of Commons Standing Committee on Justice and Human Rights, “The Criminalization of HIV Non-Disclosure in Canada: Report of the Standing Committee on Justice and Human Rights,” June 2019, 42ndParliament, 1st Session. 
Read the document online

36. R. v. Cuerrier, [1998] 2 S.C.R. 371, para. 147.

VIH INFO DROITS does not provide legal advice or counsel.

The information in this document is not intended to council the public, and does not replace the services of a lawyer. 

Although we monitor legal developments, we cannot guarantee that the information presented here is up to date. COCQ-SIDA cannot be held responsible for any damages resulting from the use of the information contained in this document. 

Updated: August 2021