Unless otherwise noted, information on Canada is summarised from data
provided by the Canadian HIV/AIDS Legal
Network and Mykhalovskiy E, Betteridge G et al. The Criminalization of HIV Non-disclosure in Canada: a preliminary analysis of
trends and patterns. 2009 OHTN Research
Conference, 16-17 November, 2009.
Canada is second only to the United States in terms of absolute
numbers of criminal prosecutions for both sexual and non-sexual HIV exposure
and transmission. In about 40% of convictions the
complainant(s) did not acquire HIV. There have
been close to 110 prosecutions under a broad range of existing laws including:
common nuisance (maximum prison sentence two years); assault (five years);
sexual assault (ten years); assault causing bodily harm (14 years); aggravated
assault (14 years); sexual assault causing bodily harm (14 years); aggravated
sexual assault (life); attempted murder (life); and murder (life). The
conviction rate runs at around 60%, most resulting in prison sentences. These
have varied widely from between ‘house arrest’ to 18 years’ imprisonment,
although around half of all prison sentences have ranged from between two and
five years. In addition, all convicted individuals are ordered to provide a sample
for the national criminal DNA databank and their names are placed on the
national sex-offender registry.
Prosecutions began
sporadically in 1989, but intensified following a 1998 Supreme Court ruling (R v. Cuerrier).
The ruling established that anyone who knows they are living with HIV has a
duty to disclose their HIV status before engaging in conduct that poses a
“significant risk” of exposing another person to the virus. Non-disclosure (regardless
of whether it is active deceit or as a result of not discussing of HIV risk) is
treated as fraud that invalidates consent to sex and which results in this
sexual contact being classified as an assault.1
A second Supreme
Court ruling in 2003 (R v. Williams) further established that
someone who has not yet been diagnosed, but is aware of the risk that they may
be HIV-positive, must disclose that risk to sexual partners. It also
established that even if the partner was already HIV-positive, non-disclosure
could result in charges of ‘attempted
aggravated assault’.2 The annual number of prosecutions increased substantially following this second
ruling to between 8 and 16 per year, although no charges have yet been laid for
either of the above scenarios.
Prosecutions have
taken place in nine of Canada's
ten territories with numbers broadly following HIV prevalence. There have been
no cases reported so far in New Brunswick or
in Canada's
three territories. The vast majority of charges and convictions
have been against heterosexual men who allegedly did not disclose their
HIV-positive status to women, of whom around one quarter were Black (African or
Caribbean). Some ten cases have involved
heterosexual women who allegedly did not disclose their HIV-positive status to
men, with a further 15 cases involving gay or bisexual men. There have been no
cases related to HIV exposure via sharing drug-injecting paraphernalia.
In what may have
been the world's first-ever conviction for mother-to-child transmission, in April 2006 a woman was
sentenced by a Hamilton, Ontario court to a six-month conditional
sentence and three years’ probation.3 She had pleaded guilty to a charge of failing
to provide the necessaries of life after additional charges of criminal
negligence causing bodily harm and aggravated assault were dropped.4
The woman’s first child, born in 2003, did not
acquire HIV. When she became pregnant for the second time, in 2004, she changed
her doctor, did not disclose that she was HIV-positive, did not access
prevention of mother-to-child transmission services, and insisted on
breastfeeding the newborn child. The baby tested
HIV-positive in 2005. The Catholic Children's Aid Society was granted
wardship of her children. As part of the terms of her probation, she was
ordered to attend medical appointments, seek employment and training, and to
stay away from her children except as instructed by Children's Aid.5
Notwithstanding a
previous homicide conviction in Italy,
what may have been world’s first-ever conviction for first-degree murder via
sexual HIV transmission also took place in a Hamilton, Ontario
courtroom in 2009. Ugandan-born Johnson Aziga was found guilty of two counts of
first-degree murder, ten counts of aggravated sexual assault and one count of
attempted aggravated sexual assault for not disclosing his HIV status before
having unprotected sex with eleven female complainants, seven of whom
subsequently tested HIV-positive, and two of whom subsequently died of
AIDS-related cancers. (See
Criminal
HIV Transmission for details of the Aziga case, and reactions to it.) At least two
of the aggravated sexual-assault charges were for unprotected oral sex and
vaginal sex with a condom, which 'disturbs' legal commentators.6 Mr Aziga’s
sentencing is currently pending psychiatric assessment. Since Mr Aziga’s
conviction, advocates have been concerned by the escalation of the severity of
criminal charges for not disclosing an HIV-positive status before sex that may
risk transmission.7
These have slowly increased from criminal negligence causing bodily harm8,9 to aggravated
sexual assault10,11
to attempted murder.12