1. Step by step: Ending HIV criminalization in Canada through community advocacy based on science and rights
Richard Elliott
Canadian HIV/AIDS Legal Network
24 July 2018
AIDS 2018, Amsterdam
Oral abstract TUAD0203

2. The legal context
federal Criminal Code, largely administered by 10 provincial governments (except in 3 territories in north)
no HIV-specific provision
HIV criminalization via prosecutors pursing, and courts interpreting, general Criminal Code provisions such as:
administering a noxious thing
common nuisance
criminal negligence causing bodily harm
attempted murder
aggravated sexual assault
>210 prosecutions to date since 1989

3. The courts Act I: “The Supremes weigh in” (1988)
HIV/STI non-disclosure = fraud when there is a “significant risk of serious bodily harm”
fraud = no legally valid consent = sexual assault
furthermore… exposing person to risk (of HIV) “endangers life”  aggravated sexual assault
maximum penalty = life imprisonment + mandatory sex offender registration
Q: condom use = no significant risk = no duty to disclose?
A: “maybe”

4. The courts ACT II: “Between the rulings”
Majority of lower court decisions accept that condom use = no “significant risk” = no criminal liability for not disclosing
But… some decisions to contrary = law not clearly settled
Meanwhile…
prosecutions increase substantially (peak in 2010)
first judicial training (2010)
new science re: viral load and transmission (2011)
some successful interventions in court proceedings + support to defence lawyers
campaign(s) for prosecutorial guidelines (provincial)
media advocacy

5. The courts ACT III: “The Supremes – Take 2” (2012)
SCC revisits test for duty to disclose: in case of harm of HIV infection, “significant risk of serious bodily harm” = “realistic possibility of transmission”
SCC: we should not trivialize criminal law (particularly sexual assault) by criminalizing speculative or negligible risks, but…
condom use + “low” viral load (<1500 copies/ml) = no realistic possibility of transmission … and on the evidence before the court, neither suffices on its own
Q: are both condom use and low VL always required?
A: not necessarily

6. Canada: the law further revisited
Evolving, contested interpretations of “realistic possibility” (relating to viral load)
OntCA (2013): must use condom, regardless of viral load
10+ prosecutions even though accused person had low/undetectable viral load (9 of them in Ontario)
but more encouraging recent developments…
cases of charges withdrawn, reduced
some trial courts critical of SCC and OntCA approach
3 cases holding that “undetectable” viral load alone = no realistic possibility  no assault
NB: condom issue is unresolved

7. The science “Swiss statement” (2008) HPTN052 results (2011)
CDC risk estimates (2012)
Canadian consensus statement (2014)
HPTN052 further results (2016)
PARTNER study (2016)
“U=U” consensus statement (2016)
Opposites Attract study (2017)
forthcoming global Expert Consensus Statement (JIAS, 2018)

8. Law & its application evolving
CCHRC’s Community Consensus Statement (Nov 2017)
Justice Canada report (1 Dec 2017)  solid recommendations
New guidance for prosecutors
Ontario (Dec 2017) – re viral load <200 copies/mL
shoddy new British Columbia guidance (Mar 2018)
Future cases … some key objectives:
consolidate viral load defence
re-establish condom defence
Other advocacy priorities & objectives:
improved prosecutorial guidance (fed/terr & prov)
Criminal Code reform (e.g., sexual assault, sex offender)

9. Selected resources Legal Network’s page on HIV criminalization
Canadian Coalition to Reform HIV Criminalization
End Unjust HIV Criminalization: Community Consensus Statement (Nov 2017)
Frequently Asked Questions on HIV criminalization and the Community Consensus Statement

10. More information: Richard Elliott relliott@aidslaw
More information: Richard Elliott (ext. 229)