Court decision means lawmakers must act to end unjust unscientific prosecutions of people living with HIV

The following statement was issued jointly by the Canadian HIV/AIDS Legal Network (“Legal
Network”), the Coalition des organismes communautaires québécois de lutte contre le sida
(COCQ-SIDA), and the HIV & AIDS Legal Clinic Ontario (HALCO).

TORONTO, August 7, 2020 — This week, the Ontario Court of Appeal released its decision in
R. v N.G., a case in which a young man living with HIV appealed his conviction on aggravated
sexual assault charges for not disclosing his HIV-positive status before sexual intercourse —
despite using a condom in every instance. There was no allegation that HIV was transmitted
and no evidence of any incorrect condom use.

We appeared before the Court as interveners when the appeal was heard in February. We
argued that correct condom use is, and should be, sufficient to prevent criminal
prosecution, based on sound science, a proper reading of the law, and various public policy
reasons. Regrettably, the Court has disagreed, upholding N.G.’s conviction.

The Court’s decision underscores the importance of the federal government bringing
forward legislative changes to the Criminal Code to prevent the continued misuse of
criminal charges that are contrary to science, lead to unjust convictions and ultimately
undermine public health.

The decisions of the trial judge and the Court of Appeal were based on the 2012 Supreme
Court of Canada decision in R. v. Mabior. Both courts said they were bound to follow that
decision and saw insufficient reason to depart from it. That case has often been interpreted as
saying that the law always requires both a low viral load and condom use in order to negate a
“realistic possibility of HIV transmission,” which the Supreme Court declared is the legal
threshold triggering a duty to disclose. However, the Supreme Court was not so categorical in
its decision, and recognized that the law could adapt in the future.

It is wrong to insist that both a low viral load (i.e., the presence of HIV in significantly
suppressed in the body) and condom use are required in order to negate a realistic possibility
of HIV transmission. Since the Supreme Court’s decision eight years ago, there have been
cases in which, based on the scientific evidence before them, courts have concluded that a low
viral load on its own negates a realistic possibility of transmission. This recognizes the global
consensus that a person with a suppressed viral load cannot sexually transmit HIV — in other
words, “Undetectable = Untransmittable.”

It’s time for the law to catch up with the science and recognize that condoms can also
negate a realistic possibility of transmission.

The consensus of scientific experts across Canada and around the world, as noted in the
original 2014 Consensus statement of Canadian scientists and the more recent 2018
International Expert Consensus statment (Barr-Sinoussi et al, Journal of the International AIDS Society), is that “correct use of a condom during sex means
HIV transmission is not possible.” One court in Canada has already recognized this, acquitting
on the basis of condom use alone (in a 2018 Nova Scotia case), meaning there are
inconsistent court decisions in different parts of the country.

The Attorney General of Canada and Department of Justice have previously recognized in
2017 that the “overcriminalization of HIV” is an ongoing problem, contributing to HIV stigma
and undermining testing, treatment and public health. Based on a scientific and legal review, in
2018 the Attorney General issued a directive to federal prosecutors that there should generally
be no prosecution for alleged HIV non-disclosure in the case of condom use, because there is
likely no realistic possibility of transmission. (This directive applies only in the territories, not
the provinces.)

Continuing to criminalize people living with HIV — even when condoms are used — is
also discriminatory and an overly broad application of the criminal law that is harmful
and bad for public health. The injustice is compounded by the severe consequences of a
conviction for aggravated sexual assault, including years in prison, mandatory lifetime
designation as a sex offender and, in some cases, deportation. These are grossly
disproportionate penalties for a sexual encounter that is otherwise consensual, and in which a
person has taken a highly effective precaution that means either zero risk or at most a
negligible risk of HIV transmission. The burden of overly broad use of the criminal law also falls
disproportionately on Black, Indigenous and gay communities, as recognized by Justice
Canada in its 2017 report.

In June of last year, the House of Commons Standing Committee on Justice and Human
Rights recognized there is a need for reforms to the Criminal Code that would end the use of
sexual assault charges to deal with HIV non-disclosure and limit any criminalization to cases of
actual transmission. The ruling from the Ontario Court of Appeal means that it is all the more
urgent that the government act on these calls for change and put an end, through legislative
amendments, to the unscientific and unjust use of the criminal law.



Learn more:

Watch a video explaining the criminalization of people living with HIV in Canada.
Read the brief: The Criminalization of HIV in Canada: Current Status and the Need for