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.