Canada

Last updated on: 30 September 2014

Criminalisation of HIV transmission/exposure

Canada
Whether Specific law enacted: 
No
Number of people prosecuted: 
146
Number of people convicted: 
79
Applicable law: 

Criminal Code of Canada (Bilingual - English and French)

Note: No specific HIV-related laws. Prosecution can be under:

  • Common nuisance (s. 180)
  • Criminal negligence causing bodily harm (s. 219, 221)
  • Murder (s. 229)Attempted murder (s. 239)
  • Uttering threats to cause death or bodily harm (s. 264.1)
  • Assault (s. 265)
  • Assault causing bodily harm (s. 267)
  • Aggravated assault (s. 268)
  • Sexual assault (s. 271)
  • Sexual assault causing bodily harm (s. 272)
  • Aggravated sexual assault (s. 273)
Key wording in the law: 

Supreme Court Rulings (R. v. Cuerrier, [1998] 2 SCR 371; R. v. Williams, [2003] 2 SCR 134 have clarified that:

There is a legal duty to disclose HIV-positive status to sexual partners before having sex that poses a “significant risk” of HIV transmission, including anal or vaginal sex without a condom. Unprotected sex without disclosure (and consent to risk of HIV transmission) is fraud..

Key Cases: 

The Supreme Court of Canada (R. v. Cuerrier, [1998] 2 SCR 371) ruled that there is a legal duty to disclose HIV-positive status to sexual partners before having sex that poses a "significant risk" of HIV transmission. Non-disclosure viatiates consent constituting fraud.

However, “significant risk” has not been clearly or consistently defined and prosecutions for non-disclosure prior to oral sex and sex with condoms have taken place.

  • R. v. Nduwayo: no legal duty to disclose HIV-status if condoms were used
  • R v. Imona-Russell: duty to disclose if sex was “unprotected”
  • R. v. Mabior, 2008 MBQB 201 (Can. Man.): disclosure of HIV status required even with condom use if viral load is detectable), reversed by R. v. Mabior, 2010 MBCA 93 (Can. Man. C.A.): no duty to disclose if condom used or undetectable viral load
  • R. v. Mekonnen, 2009 ONCJ 643 (Can. Ont.): disclosure required even with condom use
  • R v. Aziga, (4 April 2009), Hamilton CR-08-1735: convicted on aggravated sexual assault charge based on unprotected oral sex
  • R. v. Mekonnen, 2009 ONCJ 643 (Can. Ont.): deciding that vaginal intercourse with a condom but without HIV disclosure is an aggravated sexual assault, without considering evidence of risk of HIV transmission
  • R. v. Mabior, 2008 MBQB 201 (Can. Man.): requiring disclosure of HIV status even with condom use if viral load is detectable), reversed by R. v. Mabior, 2010 MBCA 93 (Can. Man. C.A.) (reversing lower court conviction)

Additionally, a futher ruling by the Supreme Court of Canada (R. v. Williams, [2003] 2 SCR 134) suggested that a person may have a legal duty to disclose their HIV-positive status before having sex that poses a significant risk of transmission even if they know their sexual partner also has HIV; and a person who knows there is a risk that he or she has HIV (but has not received an actual HIV-positive diagnosis) may have a legal duty to tell sexual partners about this risk before having unprotected sex.

As a result, substantial confusion amongst people living with HIV, healthcare workers and legal practitioners exists regarding when the duty to disclose arises. (See Mykhalovskiy E. The problem of "significant risk": Exploring the public health impact of criminalizing HIV non-disclosure. Social Science & Medicine (2011) (In further reading)

In February 2012, the Supreme Court of Canada revisited the above rulings during two appeals (R v. Mabior; R v 'DC') in order to re-examine whether Cuerrier remains valid in the light of inconsistent lower court decisions regarding what constitutes a "significant risk" of HIV transmission in the context of sex, especially when the person with HIV wears a condom and/or has an undetectable viral load due to effective antiretroviral therapy.  A decision is expected by Autumn 2012.  

Below are Factums (statements of the facts of a case) from the Manitoba Prosecution Service - arguging that all potential sexual exposure, regardless of condom use or viral load should require disclosure - and from the interveners: Canadian HIV/AIDS Legal Network, HIV & AIDS Legal Clinic (Ontario), Coalition des organismes communautaires québécois de lutte contre le sida, Positive Living Society of British Columbia, Canadian AIDS Society, Toronto People With AIDS Foundation, Black Coalition for AIDS Prevention and Canadian Aboriginal AIDS Network - arguing that advances in science now require the Court to rule more clearly on what constitutes "significant risk" and to agree that there is no requirement to disclose if a  condom is used or the person with HIV has an undetectable viral load.

A short audio report following the appeal hearing from Xtra Magazine's Marcus McCann can be heard below.

Discussion: 

Canada was the first country to prosecute mother-to-child transmission (in 2006) and the first to try someone for murder as a result of sexual HIV transmission without disclosure (in 2009).  For further details see: Canada in HIV and the Criminal Law (NAM, 2010)

According to Data provided by the Canadian HIV/AIDS Legal Network where outcomes are known there have been 13 acquittals and 6 cases where charges were dropped.

The majority of the 146 cases accused men, with 16 cases accusing women (14 women in total have been charged – one has been charged 3 times).

Given that there are an estimated 48,100 people living with (diagnosed) HIV in Canada (Source: Public Health Agency of Canada) this places Canada as one of the top ten countries in the world for arrests/prosecutions per capita of PLHIV (3.03 per 1000).

Advocacy

In Ontario, a campaign for prosecutorial guidelines was launched in September 2010 with some commitment in March 2011 from Ontario's Attorney General to draft such guidance.  The process has been delayed due to the recent Supreme Court of Canada appeals, and two appeals due to be heard at the Ontario Court of Appeal in June 2012. A similar process is ongoing in Quebec.

By provinces and territories:

Alberta: 
Only two of the successful prosecutions were for sexual transmission (1993 and 2002).
Other cases included robbery using HIV-infected blood in a syringe; biting a policeman; and spitting at a prison officer.  

British Columbia:

Young New Westminister gay man arrested for not disclosing to older ex

See Edwin's blog for more info at: http://criminalhivtransmission.blogspot.com/2009/10/canada-young-gay-man-arrested-for-not.html

Five of the seven convictions were for sexual HIV exposure or transmission. Adrian Nduwayo, sentenced to 15 years in 2006 for five counts of aggravated sexual assault, one of attempted aggravated sexual assault and one of sexual assault. A retrial 2010 found him guilty again on five counts of sexual assault.

The remaining two convictions were for robbery using HIV-infected blood in a syringe and biting a security guard.

Manitoba:
All of Manitoba's prosecutions have been for unprotected sex without disclosure, two of which took place concurrently in 2008.

New Brunswick:
Although the following is not HIV, there are a number of cases being reported across Canada where indivuduals are being criminaliy charged , i.e. Hep C, STIs.

Copy from Telegraph-Journal, March 30, 2010-  Saint John, New Brunswick, CANADA
SAINT JOHN- A prisoner with hepatitis C pleaded guilty Thursday to an aggravated assault charge of endangering the life of a local sheriff's deputy last month by spitting directly into his face. And in relating the facts supporting the charge, Crown prosecutor Patrick Wilbur explained the reasoning behind the Crown's decision to charge Kristopher Ryan Wentworth, 26, with aggravated assault - which carries a maximum sentence of 14 years - rather than an indictable charge of assault. He said doctors consulted by the Crown said that while the risk of the disease being transmitted to sheriff's deputy Gerald LeBlanc is low level, they indicated there was a "possibility" of transmission exists since Wentworth spit "in the eyes (and) mouth area" of his victim. Hepatitis C is a type of hepatitis - a liver disease - caused by the hepatitis C virus. It usually spreads through contact with infected blood. It can also spread through sex with an infected person and from mother to baby during childbirth. Most people who are infected with hepatitis C don't have any symptoms for years. Thursday's guilty plea by Wentworth to the March 22 aggravated assault charge was made before provincial court Judge Mary Jane Richards of Fredericton, who had agreed to switch places with Judge William McCarroll in order to hear the matter. McCarroll asked for the switch after Wentworth expressed unease last Friday with the matter being handled by the same judge in the company of the same sheriff's deputies who were present when the assault took place. In striking Wentworth's original guilty plea and his election of the jurisdiction of the provincial court, McCarroll also advised duty counsel to ensure legal aid assigned a lawyer to the accused due to the severity of the charge against him. Veteran defence counsel J. Douglas Howes was at Wentworth's side when he re-elected the jurisdiction of the provincial court on the aggravated assault charge Thursday. And when Wentworth replied "guilty, I guess" when asked by Richards for a plea, Howes emphasized there was no guessing. "The plea is guilty," he said. Wentworth pleaded guilty to seven charges in all, including a Dec. 16 theft from Sam's Variety on Carmarthen Street and an assault on the store clerk who followed him, but backed off when a knife was drawn. He also pleaded guilty to a March 19 theft of the anti-anxiety drug Ativan from and an assault on Duke Street a woman with whom he was acquainted, as well a pair of probation breaches. Richards adjourned sentencing on all matters until 9:30 a.m. on April 26 to allow time for victim impact statements to be filed with the court. The prosecutor made it clear the Crown would be asking for a "substantial period of incarceration" as part of what Howes later informed the court would be a joint submission on sentencing. Howes and his client couldn't seem to agree on the need for a pre-sentence report. The lawyer originally asked for one, then said Wentworth wasn't interested in one because he wanted to be sentenced as soon a possible. But in the end, he expressed Wentworth's willingness to have one done as part of the sentencing process. Wilbur told the court that on the day of the aggravated assault, sheriff's deputies were trying to give Wentworth a chance to "cool off" by removing him from the prisoner's box. For some reason, he said, the man had become agitated with his duty counsel. "He became upset, agitated, was swearing and said he was going to kill someone," the prosecutor told the court. He said Wentworth was still agitated, combative and swearing once outside the courtroom and, as the deputies put him on his back to handcuff him, "He spat in the eye, face and mouth area (of the deputy)."

Newfoundland &Labrador:
All prosecutions except one were for unprotected sex without disclosure. In 2001, a male sex worker was charged for being HIV-positive, but charges were dropped when police admitted there was no evidence he had had unprotected sex without disclosure.

Ontario:
In 2005, Ontario was the first province to successfully prosecute a woman for unprotected sex without disclosure; the first to successfully prosecute a woman for mother-to-child transmission, and, to charge an individual for murder following the death of two people allegedly infected through unprotected sex without disclosure. (see:Canada: Aziga murder trial)
In 2008, an Ontario man who had already been convicted of aggravated sexual assault, and who served almost three years in prison, was imprisoned again for five years for the same 'offence' with a different woman. (see: Canada: Ontario man imprisoned for a second time for HIV exposure) 
A judge confronts his fear of AIDS - Jon-Jo Douglas once made witness don mask -(Tracey Tyler - TORSTAR NEWS SERVICE) JANUARY 9 2009 -
An Ontario judge so misinformed about how AIDS is spread that he ordered an HIV-positive witness to be masked in his courtroom has since spent a day at Casey House hospice, where he shook hands with patients. The unusual educational visit – and a later face-to-face discussion with his chief justice – have ended the disciplinary proceedings against Justice Jon-Jo Douglas. 
Aziga becomes first HIV-positive man in Canada and possibly the world to be convicted of murder for recklessly spreading the virus that causes AIDS
Reported by Barbara Brown of The Hamilton Spectator Apriu 4th 2009.
To read opinion piece, see 
http://www.thespec.com/Opinions/article/544365
More attempted murder charges NEWS / Second Toronto man charged for failing to disclose HIV status
(Xtra staff / Toronto / Thursday, June 04, 2009)
A second Toronto man has been charged with attempted murder for failing to disclose his HIV status to a sexual partner. The 46-year-old was arrested on Jun 4 and is facing one charge each of attempted murder, aggravated sexual assault, assault causing bodily harm and assault with a weapon. This is the second time that attempted murder charges have been laid in connection with HIV nondisclosure in recent months. On Apr 29 a 28-year-old Toronto man was charged with attempted murder for failing to disclose his HIV status to a male partner.
In both cases police have issued public safety alerts encouraging anyone who may have had sex with him to come forward. If Xtra staff link does not work, go to:  http://www.xtra.ca/public/Toronto/More_attempted_murder_charges-6899.aspx

POZ Mag - January 4, 2010
Man Files $30 Million Negligence Lawsuit After Contracting HIV
34-year-old Percy Whiteman of Toronto is filing a $30 million lawsuit against his HIV-positive ex-wife, Thai-born Suwalee Iamkhong, along with the Canada Border Services Agency, Immigration Canada and the Zanzibar Tavern-where she worked as a stripper-for negligence, claiming that failure to test her when she arrived in Canada in 1995 led to his contracting the virus, Canoe.com reports. Iamkhong's lawyers are fighting to have the lawsuit dismissed.

"The government failed to conduct an HIV test," said Whiteman's lawyer, Maurice Benzaquen. "Percy is suffering from this illness because the government failed to protect him." 

The case is the first filed against federal immigration authorities over a lack of HIV tests, which are now mandatory in Canada for immigrants older than 15.

According to the article, Whiteman married Iamkhong in 1997. She was a go-go dancer and sex worker in Hong Kong before immigrating to Canada, and they divorced in 2004 when she told him she was HIV positive. In 2007, Iamkhong was sentenced to two years in prison after being convicted of criminal negligence causing bodily harm. She appealed her sentence and had it reduced to two years less a day, which allowed her to appeal a deportation order.

February 19, 2010 - POZ magazine
HIV-Positive Ottawa Man Faces Three Years for Not Disclosing
Justin Bruneau, an HIV-positive Native American man, could be sentenced to three years in prison for repeatedly having unprotected sex without disclosing his status, the Ottawa Citizen reports. Bruneau pleaded guilty to aggravated assault charges and will be sentenced February 23.
According to the article, Bruneau allegedly had unprotected sex with his female partner 80 times during their four-month relationship,
which ended last July. She has since tested HIV negative. 


Prosecutor Andrea Blakeley said the non-disclosure was intentional. "The question was asked, ‘Are there any STDs I need to be aware of?' and the answer was, ‘No,' she said during a February 18 court hearing."
Bruneau's lawyer, Brett McGarry, argued his client's sentence should be limited to 12- to 18-months, citing Bruneau's struggles with anti-Native American discrimination, alcohol and drug addiction, his HIV-positive status and gender identity issues (he sometimes goes by the name Jasmine). In addition, Bruneau's lawyer urged that the sentence should be rehabilitative, explaining that "a longer sentence may be culturally inappropriate and detrimental to his rehabilitation."


In court, Bruneau, who is a member of the Ojibwa Native Americans, apologized to his former partner, who was not named. 


"I cannot begin to express the remorse I feel," he said. "I placed you at great risk, endangering your life. I was wrong.
It was dishonest of me to omit the truth. I was reckless, neglectful and selfish."

Quebec:
Five of the 11 successful prosecutions were not related to unprotected sex without disclosure. They include: biting; threatening to bite a police officer; spitting at a prison guards (attempted murder); and two cases of using needles or syringes as weapons during robbery.

Saskatchewan:
An HIV-positive former bodyguard from the Democratic Republic of the Congo who has been in an Ontario prison since December 2005, and who pleaded guilty to three counts of HIV-related aggravated sexual assault in April 2007, and was sentenced to an additional 30 months imprisonment, will also stand trial in Saskatchewan on similar charges. (See Canada Ontario)

Further reading: 

A complete library of documents relating to HIV and the criminal law in Canada can be found online at the Canadian HIV/AIDS Legal Network.

You can find more information about Canada at Criminal HIV transmission Blog spot.

Other laws and policies with an impact on responses to HIV

Laws and regulations relating to entry, stay or residence in the country: 

There are specific regulations for people with HIV/AIDS intending to enter Canada.

  • No HIV testing is required for tourist stays. Foreigners have access to treatment and care (author’s note: in most cases, treatment has to be paid for out-of-pocket, see section “Treatment access” below). Antiretroviral medication for personal use can be carried along.
  • Intending immigrants have to undergo medical examination, including HIV testing. A positive test result is grounds for refusal of permission to immigrate.

Foreigners intending to stay in Canada for more than 6 months have to undergo a medical examination. Since January 2002, the testing for HIV is one of the mandatory examinations. Due to the new regulations, the majority of foreigners testing positive for HIV won't be granted a residence permit for Canada. There are exceptions for the following groups of people: 

  • HIV-positive refugees
  • HIV-positive sponsored spouses or common law partners of Canadian citizens or permanent residents
  • HIV-positive sponsored and dependent children of Canadian citizens or permanent residents

Additional information:
English: www.aidslaw.ca/immigration
French: www.aidslaw.ca/limmigration
June 2005 effective changes to visitor visa process affecting entry into Canada for people living with HIV/AIDS:

  • Canada does NOT require people applying for a visa to enter Canada as a short term visitor to disclose known HIV infection on the visa application form.
  • Canada does NOT routinely impose mandatory HIV testing on short-term visitors, nor does it categorically bar visitors based on their HIV-positive status.
  • HIV-positive status does NOT prevent a person from visiting Canada, but for the rare and exceptional circumstance where the person's health condition is such that they are assessed as likely to require health and social services, during their stay in Canada, that will create an excessive demand on Canada's public system (e.g., hospitalization). This is the same standard applicable to all persons.

For updated information, please go to: www.hivrestrictions.org

Laws relating to same sex, sexual relations: 

Male to Male relationships: Legal

Punishments for male to male relationships: No law

Female to Female Relationships: Legal

Age of consent: Different for heterosexuals and homosexuals

Marriage and Substitutes for Marriage: Recognized on national level

For updated information, please go to: http://ilga.org