Ontario Will No Longer Prosecute HIV Non-Disclosure Cases

Written on Behalf of Affleck & Barrison LLP

We have previously blogged about criminal charges being laid against individuals living with HIV who fail to disclose their health status prior to engaging in sexual relations. Given the advancements in science and medicine in terms of treatment of the disease, we are beginning to see that changes are necessary to the criminal justice system.


On World AIDS Day (December 1, 2017), Ontario Attorney General, Yasir Naqvi, and Health Minister, Eric Hoskins, announced that Crown attorneys in Ontario will no longer prosecute cases of HIV-positive individuals who do not disclose their health status to their sexual partner if they have a suppressed viral load for six months.

World AIDS Day is recognized as a time to consider the impact that HIV/AIDS has had on Canadians and thank those dedicated to preventing the disease and caring for and treating those that the disease has impacted.

Over the years there have been remarkable medical advances and HIV treatment has slowed disease progression so that many HIV-positive individuals can now consider the disease as a chronic, manageable condition. The criminal justice system must now reflect the current reality of this disease.


Studies have found that sexual activity, whether using a condom or not, with an HIV- positive individual who is receiving prescribed treatment and has maintained a suppressed viral load poses a negligible risk of transmission.

Viral load refers to the amount of HIV virus in a person’s blood. Viral suppression is defined as suppressing or reducing the function and replication of a virus. Reaching viral suppression means that the amount of HIV in an individual is very low. Viral suppression can help HIV positive individuals live healthier and longer lives and can reduce the likelihood of transmitting the virus to another person.


The Supreme Court of Canada in the 2012 R. v. Mabior decision established that HIV-positive individuals have a duty to disclose their HIV status prior to sexual activity that poses a “realistic possibility of transmission”. The Court convicted Mabior on three counts because, although he had a low viral load when he had intercourse with three sexual partners, he did not use a condom. The Court found that Mabior met the test for “a realistic possibility of transmission of HIV” and therefore was convicted. At the time, the law was clear that HIV-positive individuals must disclose their status before engaging in sexual activity that poses a realistic possibility of transmission of HIV in order to avoid criminal liability.

However, the Supreme Court of Canada in the R. v. Mabior decision also recognized that scientific and medical advances regarding HIV/AIDS would progress over time and allowed for the law to evolve in the future as well.

Having reviewed all of the updated medical and scientific evidence, the Ontario government has decided that the criminal law should not apply to individuals living with HIV who have engaged in sexual activity without disclosing their status as long as they have maintained a suppressed viral load as the “realistic possibility of transmission test” is not met in these circumstances. An individual living with HIV who complies with their treatment is viewed as an individual who is acting responsibly.

In general, it is recommended by Canada’s Department of Justice that because the realistic possibility of transmission test is likely not met, the criminal law should not apply to:

  • Individuals living with HIV who are in treatment;
  • Individuals living with HIV who are not in treatment, but use condoms;
  • Individuals living with HIV who only engage in oral sex (unless other risk factors are present and the individual living with HIV is aware of those risks).

We will continue to follow any developments in the provincial and federal review of criminalization of HIV non-disclosure and will blog about updates as they become available.

In the meantime, if you have any questions about your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We offer 24-hour phone service, 7 days a week for your convenience.

Man Charged with Sex Assault for Non-Disclosure of HIV

Written on Behalf of Affleck & Barrison LLP

An HIV-positive Toronto-area man has been arrested for a second time for allegedly failing to disclose his HIV status prior to engaging in sexual relations. He is facing serious criminal charges and a rare court order obliging him to use condoms and to inform all sexual partners about his condition.

What Happened?

The man in question was first charged with aggravated sexual assault in April 2017, regarding a relationship he had in 2011. He was arrested again this week on a second charge of aggravated sexual assault. In both cases, police claim that the man did not disclose his HIV status, and that the partners he was intimate with had contracted HIV as a result.

Court Orders Requiring HIV Disclosure

The man is subject to a rare court order that requires him to use condoms and to make his HIV status known to his sexual partners. This is only the third such order made under s. 102 of the province’s Health Protection and Promotion Act. The order was requested by Dr. Rita Shahin, the City of Toronto’s associate medical officer of health.

Such court orders are not often required since the vast majority of those with HIV take independent steps to significantly reduce or eliminate the risk of HIV transmission through drug use or sex, and most comply with orders to take precautions issued by the Medical Officer of Health. In this case, Dr. Shahin warned the court of an “immediate risk of an outbreak” and argued that the order was needed to “decrease or eliminate the risk to health presented by the communicable disease”

Since the man’s status was first reported to the City’s public health agency in February 2011, the agency has twice offered the man counselling on the importance of disclosing his HIV status. During the first of these sessions, the man was specifically reminded to obtain consistent medical care after he indicated that he was not taking any medication for the disease, which can lead to AIDS. Three years late, the man was counselled about implications of failure to disclose his status.

Current Law on Non-Disclosure of HIV

The court order and accompanying charges come during a time of controversy over the criminalization of HIV non-disclosure, as well as an ongoing review of current Criminal Code provisions on this issue. Currently, HIV-positive individuals who fail to disclose their status to sexual partners can be convicted and jailed, even if their partners do not become infected.

In March of this year, advocates for decriminalizing HIV non-disclosure protested outside of the Attorney General’s office, on the position that current antiretroviral treatments make HIV a manageable infection, and that the current laws dissuade some people from being tested because they may fear potential future arrest.

Currently, Toronto Public Health counsels individuals with HIV on how to maintain good health and avoid the spread of infection but does not issue public alerts, even in situations where an individual is known to engage in risky behaviours. Dr. Shahin notes that

Issuing a public alert would increase the serious stigma and discrimination experienced by people living with HIV infection and likely deter people from seeking HIV testing, which in turn could have serious ramifications for those unaware of their HIV status and their contacts.

It is up to infected individuals to take precautions and inform partners.

We will continue to follow developments in the provincial and federal review of criminalization of HIV non-disclosure and will blog about updates as they become available.

In the meantime, if you have questions about your rights, contacted one of the knowledgeable and well-respected Oshawa criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. Our lawyers have experience successfully defending charges of aggravated assault. When you contact one of our lawyers, we will take the time to understand the particular circumstances of your case and work to achieve the best possible result. We are not afraid to fight for your rights and protect your interests.

Ontario Goalie Gets 30 Day Jail Sentence for On-Ice Assault

Written on Behalf of Affleck & Barrison LLP

Todd Ball, a goalie who “destroyed” another hockey player’s face with his stick has been sentenced to 30 days in jail (to be served on weekends) and one year of probation for assault causing bodily harm.

Stick to the Face

The incident occurred in May 2016 on the final day of the 3-on-3 Ice Hockey Challenge, a beer-league tournament in Fort Erie.

Ball was intoxicated at the time of the incident. He and some friends had been celebrating his birthday and binge drinking since early in the morning. The victim, Ryan Cox, was on a breakaway near the end of the game. As Cox approached the net, Ball left the goalie crease and, using both hands, violently swung his goalie stick directly into Cox’s face. Cox was immediately taken to hospital where he underwent more than seven hours of surgery to reconstruct his face and repair the significant damage.

Medical records indicate that Cox suffered a concussion, fractures on both sides of his nose, a shattered nose, and fractured orbital bone. He currently has six plates holding his face together, and his treatment is not yet done. Since the incident which took place more than 11 months ago, he has been unable to return to work. He says that his “life has never been the same”, and that he cannot feel his face, gets bad headaches, and that it is hard for him to sleep.

Assault Charges

Ball originally faced more serious charges of aggravated assault, but struck a plea deal for the more lenient charge of assault. He has reportedly written Cox a letter of apology and is also seeking treatment for alcoholism.

At trial, the Crown prosecutor recommended that Ball be sentenced from anywhere between 30 days to nine months in jail. Ball’s defense counsel requested that Ball be placed on probation or be given a conditional discharge.

Justice Colvin stated that on-ice assaults during a hockey game are a challenge for the legal system. By stepping onto the ice, all players accept that there may be some level of violence in the game, and that they may be injured. The challenge arises in differentiating between the nature of hockey, which involves physical contact, and criminal conduct that occurs outside of this standard context of the game.

Justice Colvin has said:

In my mind, the significant fact is that this was a non-contact, fun tournament…it makes it very different from cases involving competitive play, for instance in the NHL or the AHL. Some violence might be expected in those games, though not so much as to bring criminal law into play.

In reaching his final decision, Justice Colvin considered a pre-sentencing report written about Ball. According to the report, Ball had a “troublesome upbringing”, which the judge stated was “an understatement”.

Ball’s father was a violent, abusive biker who had spent 20 years in prison. Over the course of Ball’s childhood, there were a number of police interventions at the family home, including one which ended in a 10-hour standoff with an emergency task unit. Ball’s father was eventually beaten to death by a biker gang when Ball was 12 years old.

Justice Colvin ultimately determined that Ball’s background and drinking problem were an explanation, but not an excuse, for his actions on the ice.

Justice Colvin also commented on the difficult nature of sentencing, stating:

Sentencing must attempt to strike a balance between the offence and its consequences on the one side, and the offender, both good and bad, on the other side. That balance is difficult to find. For the victim, his friends and family, no punishment can be enough. For the accused, his friends and family, no amount of understanding, compassion, and forgiveness is enough.

If you are facing assault charges, contact Durham region assault lawyers Affleck & Barrison LLP. We have a reputation for effective results in defending all manner of assault charges. We offer a variety of payment options, a free initial consultation, and a 24-hour phone service. Contact us at 905-404-1947 or online to speak with an Oshawa lawyer specializing in the defence of assault.

Teens Dressed as Creepy Clowns in Oshawa Face Charges  

Written on Behalf of Affleck & Barrison LLP

The “creepy clown” trend that first emerged in the U.S has moved north of the border and is affecting cities and towns across Ontario. Police in Durham region have responded to more than 30 calls involving “creepy clowns” in less than three weeks.

Recently, three Oshawa teens were charged with causing a nuisance after pulling up to pedestrians in a grey vehicle while dressed as clowns, opening the doors, and trying to scare other drivers. One of the teens was additionally charged with reckless driving.

While the “creepy clown” trend may seem like a harmless prank, or a funny way to bring yourself some fleeting Internet fame, there can be some serious civil and criminal repercussions.

Reckless Driving and Other Driving Offences

Negligence and reckless driving are both civil, not criminal charges. However, if the actions of these three Oshawa pranksters were more serious, and caused bodily harm, for instance, they could potentially have faced more serious criminal charges of criminal negligence or dangerous driving.

We’ve previously blogged about driving offences and their potentially significant consequences. Not only do these offences carry significant financial penalties and substantial implications on car insurance, they can also come with potential jail terms (up to 5 years, or 10-14 years for dangerous driving depending on whether it caused bodily harm). Needless to say, pranking someone while operating a motor vehicle (whether or not you’re dressed as a clown) is not advisable, and can have serious implications.

Other Potential Criminal Implications of “Creepy Clowning”

After receiving more than a dozen calls about creepy clown sightings in the area, police in Kitchener-Waterloo had to issue warnings to the public stating that while it is not illegal to dress like a clown, it is a crime to intimidate, threaten or harass people, even if it done just as a prank.

A Waterloo Region police spokesperson stated that police become concerned and potential criminal charges are possible where people dressed as clowns “…start to chase young children, start to try to scare young adults, or, in some cases carry replica weapons and try to intimidate individuals”.

There were multiple such incidents in the Kitchener-Waterloo area recently. In one case a clown was seen carrying an imitation sword and a plastic gun. In another, two clowns chased a pair of girls, and in yet another three clowns (one carrying a large stick) followed a pedestrian. Nobody was physically injured in any of these cases, but this does not mean that criminal charges would not have been laid had police found the pranksters. The perpetrators may have, for instance, faced assault charges.

Section 265(1) of the Criminal Code provides that a person commits an assault where he/she “attempts or threatens, by an act or gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect [his/her] purposes.”

It is not difficult to see how someone dressed as a clown and acting menacingly/chasing someone down the street could be viewed as threatening to apply force to another person through their act or gesture, therefore facing possible assault charges.

Such charges would be even more likely where the person dressed as a clown was carrying a “weapon”, even if it was plastic given that under s. 265(1), it is also assault to “accost or impede another person” while “openly wearing or carrying a weapon or an imitation thereof.”

What Does This Mean?

As funny as it may seem to terrify someone while dressed as a clown, it is noteworthy that any such actions could lead to criminal charges, particularly as communities, schools, and parents have become very sensitive to such actions in recent weeks.

Lessons to learn from all of this? Be smart this Halloween.

The lawyers at Affleck & Barrison are extremely knowledgeable and are experienced at fighting a wide range of assault offences. Call us at 905-404-1947 or contact us online for a free consultation. We offer 24-hour phone service for your convenience, and a variety of payment options, including Legal Aid. Whatever the nature of your offence, we can help.

47 Suspects Charged in Nationwide Human Trafficking Investigation

Written on Behalf of Affleck & Barrison LLP

Twenty sex workers suspected of working against their will, were rescued earlier this month as a result of Operation Northern Spotlight, a massive cross-Canada human trafficking investigation. Most of those rescued are under 19, and some are as young as 14.

Over the past year, Canadian police forces worked with the FBI in a coordinated effort to fight human traffickers. The OPP spearheaded the latest phase of the operation, which involved more than 350 officers and staff from 40 police agencies across Canada. The investigation led to the arrest of 47 people who are facing more than 130 charges including trafficking in persons, forcible confinement, child pornography, and sexual assault with a weapon.

U.S law enforcement agencies conducted Operation Cross Country, a similar operation south of the border, which resulted in the arrest of more than 150 “pimps” and the rescue of 152 minors.

Human Trafficking and Related Charges 

The charges laid in Phase 5 of Operation Northern Spotlight included:

  • Trafficking in Persons under 18
  • Trafficking in Persons
  • Procure Sexual Services under 18
  • Procure Sexual Services
  • Receive Material Benefit under 18
  • Receive Material Benefit
  • Communicate for the Purpose of Obtaining for Consideration the Sexual Services of a Person
  • Exercise Control
  • Make Child Pornography
  • Distribute Child Pornography
  • Possess Child Pornography
  • Child Luring
  • Advertise Another Person’s Sexual Services
  • Assault
  • Obstruct Police
  • Resist Arrest
  • Controlled Drug and Substances Act (CDSA) offences

Human Trafficking in Canada 

Human trafficking charges can be laid against any person who recruits, transports, transfers, receives, holds, conceals, or harbours a person, or any person who exercises control, direction, or influence over the movements of a person for the purposes of exploiting them, or facilitating their exploitation for a forced labour or sexual reason.

If you are facing a human trafficking or related charge, contact us online or at 905-404-1947 to speak with an experienced criminal defence lawyer. We take all steps needed to protect your best interests, both immediate and long term. We maintain a 24-hour emergency service line, and our office is within steps of the Durham Consolidated Courthouse.  We offer a free confidential consultation to all perspective clients.

Should Canada Criminalize Spanking?

Written on Behalf of Affleck & Barrison LLP

Earlier last week, in response to recommendations of the Truth and Reconciliation Commission, the federal government announced it would repeal the so-called “Spanking Law” in Canada. This announcement sparked a significant amount of public debate about this highly divisive issue. But what exactly is the spanking law, and what are the arguments for and against it? Here is a brief overview:

The Law

Section 43 of the Criminal Code reads:

Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.

This section, also known as the defence of reasonable correction, dates back to Canada’s first Criminal Code in 1892.

The Supreme Court Decision

In the 1990s, the constitutionality of s. 43 was challenged. The Supreme Court of Canada released its decision in 2004 in a case called Canadian Foundation for Children, Youth and the Law v Canada (Attorney General). Six out of nine justices found that the spanking laws did not violate the Charter of Rights and Freedoms. However, the Supreme Court ruled that physical force against children was only acceptable within certain tightly limited conditions: it cannot be used on children under the age of 2, or over the age of 12, it cannot involve the use of objects, the force must be corrective in nature, and “must be reasonable in the circumstances”.

The Arguments

Section 43 of the Criminal Code is controversial because it expressly offers parents and teachers a defence when they use reasonable force to discipline a child.

Those opposed to repealing the provision see it as an unwanted intrusion by the government into a parent’s right to decide what is best for their child. They argue that parents should be allowed to raise their children as they see fit, so long as their actions are within reason and do not constitute abuse. Some teachers fear that a repeal of s. 43 would leave teachers vulnerable to charges of assault in cases where they are required to use force – such as breaking up schoolyard fights or restraining a violent child.

Those in favour of repealing the law say that spanking is a form of child abuse and that it sends the mixed message that it may be acceptable to strike a child.

Despite the heated debate, at this point it is still unclear whether the Liberals will strike down the law or amend it, and when.

To learn more about this or any other criminal defence matter, please contact the lawyers at Affleck & Barrison online or at 905-404-1947.