HIV

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.

ONTARIO GOVERNMENT’S ANNOUNCEMENT

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.

HIV TRANSMISSION RISKS

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.

CRIMINAL JUSTICE SYSTEM RESPONSES TO HIV NON-DISCLOSURE CASES

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.

HIV Positive Status to Potentially Factor into Sexual Assault Sentencing

Written on Behalf of Affleck & Barrison LLP

Crown prosecutors in Saskatchewan recently clarified that an HIV positive man facing charges for choking a woman unconscious and then sexually assaulting her will not be charged with aggravated sexual assault. However, the Crown has argued that the man’s HIV status and the victim’s subsequent fear of having potentially contracted the virus should be considered during sentencing.

What Happened?

The sexual assault occurred in May 2015. The victim was on her way home after socializing with friends at a pub. She was accompanied by a friend until she was about half block from her apartment. As she cut through a back alley, she was approached by the man in question, who rode his bike alongside her, started making inappropriate comments, and touching her. The man eventually tackled her, choked her unconscious, and forcibly penetrated her before she eventually escaped.

After the man was arrested, the victim learned that he was HIV-positive. She was treated with potent post-exposure antiretroviral drugs and experienced six months of anxiety while she awaited her test results (which were negative).

Aggravated Sexual Assault

The Crown initially charged the man with aggravated sexual assault due to his HIV-positive status. Originally, the risk of transmission to the victim was considered the aggravating factor in the assault, however, the Crown reconsidered its original charge after evidence from an infectious disease specialist revealed that the man had regularly been taking antiretroviral drugs which suppressed his virus to a low enough level that transmission was “nearly impossible”. The man’s HIV-positive status, therefore, did not endanger the woman’s life.

He was still convicted of aggravated sexual assault, but it was because he choked the victim, not because of his HIV-positive status.

Prosecutors asked for a minimum sentence of 12 years, arguing that the victim’s fear of contracting HIV had been real, even if the actual risk of doing so was not. They noted that:

However low the risk is, the anxiety for the victim when she found out that this individual was in fact HIV-positive, is an aggravating factor.

HIV Prosecutions in Canada

As we previously blogged about, the majority of HIV-related prosecutions in Canada involve consensual sexual relationships which eventually led to prosecution because an HIV-infected partner did not disclose his or her status.

In 2012, the Supreme Court of Canada clarified that individuals with low-level HIV who use condoms when they engage in sexual relations, cannot be charged with aggravated sexual assault for non-disclosure of their status.

Since then, HIV activists have argued that the SCC’s criteria are too stringent and that medical advances in reducing transmission risk have progressed to the point that it is not necessary for individuals to have both a low viral load and to wear a condom. Experts have said that adding a condom to the situation “negligibly changes the risk” because the risk of transmission is already basically zero.

In this case, experts praised the fact that prosecutors recognized the reduced transmission risk, despite the lack of condom use, to determine that a charge of aggravated sexual assault was not justified.

Perception of Risk as Aggravating Factor

Both the Crown and defence lawyers recognized that, in this case, the victim’s fear of transmission could be considered an aggravating factor. However, the Defence is asking for a five-year sentence. Sentencing was delayed by three weeks in order to provide the Judge time to review a Gladue Report (a special pre-sentencing hearing into an Indigenous perpetrator’s background).

The provincial and federal governments are both currently reviewing the criminalization of HIV non-disclosure. We will continue to follow the developments and will provide updates as they become available.

In the meantime, if you have questions about your rights, contact 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 and sexual assault. We will take the time to understand the particular circumstances of your case and work to achieve the best possible result.

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.