Council of Ontario
Medical Officers of Health
October 21, 2011
Ryan Peck, Barrister & Solicitor Eric Mykhalovskiy
Executive Director Associate Professor
HIV & AIDS Legal Clinic (Ontario) Department of Sociology
1. Quick review of criminal law obligation and legal developments
2. What is the demographic situation with respect to criminal cases in
Canada and Ontario?
3. Key Policy Issues
1. Legal fairness
2. Science and the criminal law
3. The Public health impact of criminalizing HIV non-disclosure
4. Prosecutorial Guidelines Campaign
5. Supreme Court of Canada Interventions
6. Public health role/response
Stigma & Discrimination
• 32% of people believe incorrectly that HIV can be transmitted through
• 29% believe incorrectly that HIV can be transmitted through a mosquito
• 49% feel uncomfortable using a restaurant drinking glass once used be a
person living with HIV/AIDS.
• 26% would be very or somewhat uncomfortable working in an office
where someone is known to be infected with HIV/AIDS.
• 26% feel uncomfortable even wearing a sweater once worn by a person
living with HIV/AIDS.
• 20% do not believe in supporting the rights of people living with HIV/AIDS.
EKOS Research Associates Inc., HIV/AIDS Attitudinal Tracking Survey 2006: Final Report to
Health Canada, March 31 2006, available on-line at http://www.phac-aspc.gc.ca/aids-
HIV & the Criminal Law
Leading case is R.v. Cuerrier,  2 SCR 371,
People living with HIV can be found guilty of a
criminal offence if they fail to disclose their HIV
status before engaging in behaviours that pose a
“significant risk of serious bodily harm” to another
HIV & the Criminal Law
• “Serious Bodily Harm” includes risk of HIV
– Transmission is not required for a conviction on assault
– “Exposure without disclosure” is the crime (of assault).
• “Significant risk” is a vague legal concept.
HIV & the Criminal Law
Non-disclosure of HIV-positive status before unprotected sex constitutes fraud that
vitiates consent. So, non-disclosure before unprotected sex turns otherwise
consensual sex into non-consensual sex.
It is an aggravated assault to not disclose before unprotected sex.
Post-Cuerrier, everyone charged with aggravated sexual assault.
Aggravated sexual assault (Criminal Code s. 273)
• “Everyone commits an aggravated sexual assault who, in committing a sexual
assault, wounds, maims, disfigures or endangers the life of the complainant.”
• maximum life imprisonment.
HIV & the Criminal Law
The Condom Defence
“To have intercourse with a person who is HIV-
positive will always present risks. Absolutely
safe sex may be impossible. Yet the careful
use of condoms might be found to so reduce
the risk of harm that it could no longer be
considered significant so that there might not
be either deprivation or risk of deprivation [ie,
harm or risk of harm].”
Manitoba Case Court of Appeal 2010
• Careful use of condom OR an undetectable viral load reduces
the level of risk below the threshold test of a “significant risk.”
– “Significant risk means something other than an ordinary risk. It
means an important, serious, substantial risk.”
– “Legal assessments of risk in this area should be consistent with the
available medical studies.”
– “The application of the legal test in Cuerrier must evolve to account
appropriately for the development in the science of HIV treatment.”
– “Criminal sanctions should be reserved for those deliberate,
irresponsible or reckless individuals who do not respond to public
health directives and who are truly blameworthy.”
Court of Appeal 2010
• Undetectable viral load reduces the level of
risk below the threshold test of a “significant
• Appealed to the Supreme Court of Canada, to
be heard jointly with Manitoba case.
Vancouver Case (2010)
• Vancouver man charged with aggravated sexual assault in
relation to three acts of unprotected sex where the accused
was receptive partner.
• Based on the scientific evidence, no significant risk of serious
• Three incidents of unprotected anal intercourse at a risk of 4
in 10,000 per occurrence puts the risk of HIV transmission at
12 in 10,000 or 0.12%.
“Not every unethical act invokes the heavy hand of
the criminal law” (Justice Lauri Ann Fenlon)
Demographics of Criminal cases
• At least 119 criminal cases from 1989 to
Mykhalovskiy, E., Betteridge, G. (Forthcoming) “Who? What? Where? And
with what Consequences?: An Analysis of Criminal Cases of HIV Non-
disclosure in Canada.” Canadian Journal of Law and Society
HIV non-disclosure cases, Canada, 1989-2010 (n=119)
Province of Charge, HIV non-disclosure cases, Canada
1989 - end of Feb 2011
Total = 123 cases
Ontario Cases (2)
• HIV is being singled out; aware of only 5 cases involving other
• Law is being applied in an overbroad manner.
• Significant risk test is inconsistently interpreted and applied
– 2006 acquittal in relation to oral sex.
– 2009 conviction in relation for oral sex.
– 2009 conviction in relation to protected sex.
– 2010 staying of charges in relation to oral sex.
– 2011 withdrawal of charges in relation to oral sex.
Science and the criminal law
• Courts have lagged behind current developments in scientific
research although this is changing.
• Most current research: HPTN 052
The study team calculated that there was a relative reduction of 96%
in HIV transmissions because of the initiation of early ART.
Cohen MS, Chen YQ, McCauley M, et al. Prevention of HIV-1 infection with early antiretroviral
therapy. New England Journal of Medicine. 2011 Aug 11;365(6):493-505.
The public health impact of criminalization
• An emerging issue in research communities in Canada, US
• US workshop on national research agenda on public health
impact of criminalization of HIV transmission and exposure
– Yale Center for Interdisciplinary Research on AIDS 3-4 November
• Approximately 11 peer reviewed articles reporting empirical
results on public health impact of criminalizing HIV
• 6 US, 3 UK, 2 Canada.
• Most research focuses on experiences/perspectives of PHAs.
Canadian research developments
• Ottawa Public Health- Dr. Vera Etches
– Media coverage of high profile case - what public health outcomes?
– # of HIV antibody tests, test results, self-reported willingness to
• Patrick O’Byrne, Faculty of Nursing, University of Ottawa
– CIHR meeting grant. Oct 28. Impact of criminalization on front-line
nursing practice. Counseling, documentation, other issues, Report
to will be produced.
– Early Researcher Award, Government of Ontario (2011-2016)
Survey and focus group interview project on MSM and HIV
• Barry Adam
– PHA perspectives on criminalization and attitudes to media
• Eric Mykhalovskiy
– The problem of ‘significant risk’: Exploring the public health impact
of criminalizing HIV non-disclosure. Social Science & Medicine. 73:
Law Reform In Ontario
• Ontario Working Group on Criminal Law &
HIV Exposure (CLHE),
• Prosecutorial Guidelines
• Supreme Court Intervention
Law Reform In Ontario:
Campaign for Prosecutorial Guidelines
1. Changing HIV non-disclosure offence by Parliamentary legislative
amendment to Criminal Code.
• unlikely, takes many years, politically and strategically fraught
2. Courts might restrict current expansive application of law in their
• Takes many years, outcome uncertain, case-by-case approach
• Canadian HIV/AIDS Legal Network, HALCO playing leading role
3. Prosecutorial guidelines offer a viable, realistic avenue for advocacy and
activism leading to positive change in the short-term.
• Provide the overall philosophy, direction and priorities of the Attorney General,
and instructions for carrying these out.
• Campaign involves significant community knowledge and capacity building.
ENDORSE THE CAMPAIGN - http://www.ontarioaidsnetwork.on.ca/clhe/index.php
We believe that the use of criminal law in cases of HIV non-disclosure must be
compatible with broader scientific, medical, public health, and community efforts to
prevent the spread of HIV and to provide care treatment and support to people living
with HIV. While criminal prosecutions may be warranted in some circumstances, we
view the current expansive use of criminal law with concern.
We therefore call on Ontario's Attorney General to immediately undertake a process
to develop guidelines for criminal prosecutors in cases involving allegations of non-
disclosure of HIV status.
Guidelines are needed to ensure that HIV-related criminal complaints are handled in a
fair and non-discriminatory manner. The guidelines must ensure that decisions to
investigate and prosecute such cases are informed by a complete and accurate
understanding of current medical and scientific research about HIV and take into
account the social contexts of living with HIV.
We call on Ontario's Attorney General to ensure that people living with HIV,
communities affected by HIV, legal, public health and scientific experts, health care
providers, and AIDS service organizations are meaningfully involved in the process to
develop such guidelines.
• Prosecutions should be conducted with caution and restraint.
• HIV/STI prevention is preeminently a public health issue. Criminal law should be
reserved for the most blameworthy behaviour, and where public health powers
have proven ineffective.
• Different than sexual assault cases involving force, coercion and violence.
• Not every ethical obligation engages the criminal law.
• Crown counsel must bring forward evidence to prove that the sex involved a
“significant risk” of HIV transmission. Where the expert believes that there was no
significant risk, there should be no prosecution.
• In the absence of clear expert evidence to the contrary:
– Protected sex, oral sex and sex where person had an undetectable/low viral
load should not be prosecuted.
Supreme Court Intervention
• HALCO, Legal Network, Positive Living Society of British Columbia, Toronto
People with AIDS Foundation, Black Coalition for AIDS Prevention,
Coalition des organismes communautaires québécois de lutte contre le
sida, Canadian AIDS Society, Canadian Aboriginal AIDS Network, have
applied for intervener status, decision pending.
• Maintain sig risk test, with guidance. No prosecutions involving oral and
other low risk sex, protected sex, and sex with someone with an
undetectable/low viral load.
• Manitoba government is appellant, and taking the position that there is a
duty to disclose before any sexual activity. Ontario has applied for
intervention status and is taking the same position. This approach is
extremely problematic and improperly expands the role of the criminal
Public Health Role/Response?
• Criminalization challenges and poses negative consequences
public health response to HIV prevention.
• Public health has been slow to participate in policy debate
about criminalization of HIV non-disclosure.
• Research Role
• Advocacy Role
– Support for Prosecutorial Guidelines—Toronto MOH,
– Supreme court interventions; BC, Ontario, other.
Ryan Peck, Executive Director
HIV & AIDS Legal Clinic Ontario
65 Wellesley Street East, Suite 400
Toronto, ON M4Y 1G7
TTY Toll-free: 1-866-513-9883
Eric Mykhalovskiy, Associate Professor