How Canada’s Criminalization of HIV Non-Disclosure has become an Instrument for Oppression
By: Zoë Walwyn, JD Candidate at the Lincoln Alexander School of Law at Toronto Metropolitan University
May 26, 2023
Keywords: HIV/AIDS, HIV non-disclosure, HIV criminalization
On October 20th, 2022, the federal government announced the launch of a public consultation on the criminalization of the non-disclosure of HIV. This consultation was one of the commitments made by the federal government for Canada’s Federal 2SLGBTQI+ Action Plan, which was launched in August 2022 with the aim of “creat[ing] a more equitable Canada for 2SLGBTQI+ communities, for present and future generations.”
Criminalizing those with HIV/AIDS has roots in the systemic structures of homophobia, transphobia, and racism. Historically, the HIV/AIDS epidemic has disproportionately affected Queer, Black, and Indigenous people who are often stereotyped as sexually deviant. Therefore, labelling members of these communities who have been charged with the non-disclosure of HIV as “sex offenders” could perpetuate these stereotypes and further stigmatize one’s HIV status.
The criminalization of non-disclosure is a complex issue, however, the criminal law regarding non-disclosure in Canada is out of step with the science on the transmission of undetectable HIV. As a result, many people living with HIV, many of whom are members of marginalized communities in Canada, are being unfairly targeted by the law.
Criminalization of HIV Non-Disclosure in Canada and Critiques
The current law regarding HIV non-disclosure is based on two Supreme Court of Canada (SCC) decisions: R v D.C. and R v Mabior. In Mabior, Chief Justice McLachlin wrote that there is a duty on a person living with HIV to disclose their positive status before engaging in sexual activity that would pose a “realistic possibility of transmission.” This allows their sexual partner the opportunity to consent and to decide whether to assume the risk of possibly being infected with HIV. The SCC stated that “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.”
In this piece, I put forth three important critiques of the criminal law regarding HIV non-disclosure in Canada.
Critique 1: The Criminalization of Non-Disclosure is out of Sync with the Science
In Mabior, the SCC made a point to use the word low as opposed to undetectable due to the “evidentiary difficulties with establishing an undetectable viral load.” Dr. John Smith, a physician from Winnipeg who presented expert evidence stated that common infections and treatment issues could lead to fluctuations in a viral load bringing someone who may be treated with antiretrovirals to a detectable level. Dr. Smith was of the opinion that those who are undetectable are still sexually infectious which puts his medical opinion in contention with several other health professionals and even the Public Health Agency of Canada which has adopted Undetectable = Untransmittable (U=U) as an HIV prevention strategy. U=U means that those who take antiretroviral therapy, the most effective treatment for HIV, and maintain an undetectable viral load have effectively no risk of transmitting HIV sexually.
In 2014, two years post-Mabior, six Canadian medical experts on HIV and transmission stated that a poor appreciation of the science related to HIV contributes to the overly broad use of criminal law against those who live with HIV in cases of HIV non-disclosure. They found that when a condom is used or the HIV-positive individual is on effective antiretroviral therapy (ART), there is a negligible possibility of transmitting HIV. Due to the negligible risk of transmission, these experts saw great importance in assisting those in the criminal justice system with understanding and interpreting “the current medical and scientific evidence.”
Critique 2: The Criminalization of Non-Disclosure Perpetuates HIV Stigma
Although treatment for HIV may be as advanced as ever, an estimated 1 in 10 people living with HIV in Canada are unaware of their status. This is partly due to the lack of availability of HIV testing for more remote areas of the country but also due to the pervasive criminalization of HIV, which gives rise to the stigmatization of the virus. The stigma may discourage individuals from getting tested for the virus or taking life-saving treatment. For example, medical records of those living with HIV can be called upon in court to prove that one had knowledge of their status. This deters people from seeking treatment which places the individual and, more widely, public health in danger.
Any failure to disclose or misrepresentation of status can result in a number of charges, including aggravated sexual assault, which is the most serious sexual assault offence in the Criminal Code. If someone is unaware of their status, however, they cannot be charged with a criminal offence.
Critique 3: The Criminalization of Non-Disclosure Disproportionately Affects Marginalized Groups
In Canada, 2SLGBTQI+, Indigenous, and Black folk are disproportionately represented among those living with HIV. In fact, almost 80% of women living with HIV in Canada are Indigenous or racialized. Therefore, the criminalization of HIV non-disclosure disproportionately affects groups of people who are already overrepresented in the criminal justice system in Canada. Further, racialized women, women living in poverty, and those with a history of intimate partner violence are significantly more likely to be charged for non-disclosure of their positive HIV status.
According to the Women’s Legal Education and Action Fund, nearly 20% of women living with HIV report having acquired the virus through sexually coercive experiences. The conviction rate of rape is extremely low at about 5%, however, the conviction for HIV non-disclosure is quite high – over half of those accused plead guilty or are found guilty at trial. Charging these women with aggravated sexual assault for non-disclosure could be incredibly re-traumatizing.
There is also a concern about how abusers could use the criminalization of non-disclosure to retaliate against women for reporting abuse. In R v D.C., D.C. was charged with sexual assault and aggravated assault for non-disclosure. The charge occurred four years after she disclosed her status to her ex-partner after they had one sexual encounter. D.C.’s viral load was undetectable at the time of the encounter and the complainant did not contract HIV. It is believed that D.C.’s charges were brought by the complainant in retaliation for her ending their relationship and reporting the domestic violence faced by both her and her child at the hands of the complainant. Prior to the relationship ending and D.C. reporting the domestic violence, the two had been having unprotected sex for four years. The trial judge even noted that there was an “aura of vengeance” around the complaint.
A study examining women living with HIV in Canada, most of whom are Black and Indigenous, explored their thoughts on how the law criminalizes HIV non-disclosure. Many expressed concerns about the requirements of sexual activity to negate the non-disclosure laws. How is one to prove whether a condom was used in a sexual encounter? What if the condom breaks? Would the safest way to have sex be using a condom and having a printout of your current viral load to prove to your sexual partner that you actually had a low viral load? One of the participants of the study stated that it felt like her lawyer, her doctor, a judge, a policeman, and a witness all had to be present before she could engage in consensual sexual activity. Criminalizing non-disclosure has placed an undue burden on those living with HIV to engage in sexual activity.
Aligned with the government’s plans to reform the criminal law regarding non-disclosure, several cases have shown that more attention needs to be given to the scientific evidence around HIV transmission. In August of 2022, Jennifer Murphy, a woman living with HIV, had her 2013 aggravated sexual assault charge overturned by the Ontario Court of Appeal (ONCA). Murphy failed to disclose her positive HIV status to her sexual partner but, at the time, had a low, undetectable viral load making it impossible to transmit the virus. Only a few months later, Evans Rubara’s aggravated sexual assault charge was also overturned by ONCA five years after his conviction. Rubara, a Black man, had unprotected sex and also failed to disclose his positive HIV status to his partner. Rubara was not on medication to control his virus, but he had a rare condition which suppressed his viral load making him unable to transmit the virus. Both Murphy and Rubara’s charges carried a maximum prison term of life and mandatory designation as sex offenders.
Both of these cases will likely play a significant role in how the law is reformed and will hopefully serve as a precedent for others who are rightfully looking to have their charges from HIV non-disclosure overturned. Unfortunately, Murphy and Rubara will never get back the years of their lives spent being incarcerated. They also had to endure the trauma of having their medical information publicly scrutinized.
The federal government has plans to eliminate AIDS as a public health threat in Canada by 2030, but it is difficult to see how this goal will be achieved with the state-sanctioned stigma facing those living with HIV. Most people living with HIV are marginalized, and criminalization of HIV non-disclosure is causing immense harm to already vulnerable groups. Although the federal government has recognized a need for legislative change around HIV non-disclosure, more work needs to be done on how those living with HIV are seen by the law and by society as a whole.