Criminal Law

Canada's law around HIV and disclosure to sex partners

Under Canadian law, a person with HIV must disclose their condition to sexual partners when there’s a risk of transmitting the disease, Toronto criminal lawyer Joseph Neuberger tells Sirius Radio’s What She Said!

“Individuals who are HIV-positive, if they use protection like a condom and they have low viral loads, then they do not need to disclose,” Neuberger says. “But if those two conditions are not met, then they have a positive obligation to disclose.”

That distinction was made in a landmark 2012 decision by the Supreme Court of Canada (SCC), Neuberger says.

“If they don't disclose, and unfortunately they have high viral loads or they are not using protection, then that essentially negates consent in a sexual act,” says Neuberger, partner at Neuberger & Partners LLP.

That person could face charges, including sexual assault, aggravated assault and aggravated sexual assault, Neuberger tells hosts Christine Bentley and Kate Wheeler.

“The Supreme Court of Canada has determined the transmission or possible transmission of that virus can cause serious bodily harm,” Neuberger says. “So it’s serious and this type of issue has been criminalized in Canada.”

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“There has to be intent — in any civil lawsuit or criminal prosecution, you still need to establish that the person had knowledge of the disease,” Neuberger says. “So, if he truly did not know and he wasn’t suffering any symptoms at the time which would have given him significant concerns about having contracted the illness, then that may very well be a defence.”

There have been “extreme cases” in Canada of people knowingly spreading HIV to multiple partners, he says.

“Fortunately, overall, we haven't had very many of these prosecutions,” Neuberger says, “Most people are extremely responsible with their health.”

However, a person cannot be charged criminally for not telling partners about other sexually transmitted diseases, such as herpes, he says.

“It’s not treated the same under the criminal law,” Neuberger says.

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