KNOWLEDGE MOBILIZATION

THE CRIMINALIZATION OF HIV/AIDS

Dr. D. Scharie Tavcer Department of

Mr. Daniel Johns

Economics, Justice and Policy Studies

Bachelor of Arts,

Associate Professor, Mount Royal University

Criminal Justice (Hons)

stavcer@mtroyal.ca

How has Canadian law evolved in terms of our
understanding of sexual assault and HIV/AIDS?
We reviewed Canadian criminal cases that involved
those who didn’t disclose their HIV/AIDS status
prior to sexual activity. We also examined current
and empirically valid medical information
regarding transmission rate to illustrate the
evolving knowledge of the HIV/AIDS viruses.

# ACCUSED per (most frequent) CCC

25

21

20

OVERVIEW
Between 1987 and 2015 the legal consequences for nondisclosure, what constitutes “significant risk of bodily
harm” and “fraud”, were tested in court. We looked at
relevant cases and the Supreme Court of Canada’s (SCC)
most recent judgment on these matters in R v Mabior
[2012]. The SCC’s interpretation of current transmission
rates in Canada suggests that transmission rates alone do
not negate significant risk. The SCC declared that low viral
load with the use of a condom do not constitute a
significant risk and consequently not disclosing one’s HIVseropositive status does not constitute “fraud” vitiating
the complainant’s consent to sexual activity.

15
8

10
5

4

3

3

1

1

3

9
3

36

accused

30

S.
15
1
S.
16
3
S.
18
0
s.2
31
s.2
39
S.
26
6
S.
26
8
s.2
71
s.2
73
S.
27
9

0

cases

12
4
5

17

1987 & 89

1991-99

47

2000-09

57

2010-15

THE CRIMINALIZATION OF HIV/AIDS

PRE MABIOR (1998 – 2012)

What constitutes low viral load?

In the seminal case of R v Cuerrier (1998), the
SCC held that concealment of, or the failure to

With advancements in treatment options,
people today can achieve a state known as
having an undetectable viral load (VL).

disclosure one’s HIV-positive status to a sexual
partner, may constitute fraud thereby vitiating
consent to sexual intercourse.

This is when a test indicates a VL below 50
copies/mL of blood.

The court emphasized that proof of the
The risk estimates for the sexual
transmission of HIV, per sex act, range
from:

essential element of fraud is:
(1) Dishonesty; and
(2) deprivation or risk of deprivation.

§

Both of which are required for the Crown to
§

establish that consent to sexual relations was
displaced by fraud.

§

R V. MABIOR (2012) SCC

§

The SCC revisited and clarified the significant

0.5% - 3.38% for receptive anal
intercourse;
0.06% - 0.16% for insertive anal
intercourse;
0.08% - 0.19% for receptive vaginal
intercourse (M2F);
0.05% - 0.1% for insertive vaginal
intercourse (F2M)

risk test for establishing fraud vitiating consent
to sexual relations.
The holding included 5 key findings:
1) The operative offence is now s.273
(aggravated sexual assault);
2) The test for consent remains valid

IMPLICATIONS
•

The Criminal Code has finally evolved to meet
up with medical knowledge.

•

There is drastic variation across the provinces
perhaps as a result of Crown prosecutorial
discretion.

•

The Supreme Court’s 2012 holding clarified
significant risk as well as articulating the
realistic possibility of transmission.

(namely fraud vitiates consent);
3) Significant risk is clarified in keeping with
medical evidence of risk of transmission.
The wording is where there is a “realistic
possibility of transmission of HIV”;
4) Where

realistic

possibility

exists,

disclosure is required and conversely;
5) Realistic possibility negated if
•

accused’s viral load was low; and

•

condom protection was used.