Non Disclosure of HIV can be Aggravated Assault
Criminal law — Aggravated assault — Consent — Fraud — Non-disclosure of HIV status — Accused undergoing antiretroviral therapy and having protected and unprotected sexual relations knowing he was HIV-positive — Whether approach outlined in R. v. Cuerrier, 1998 CanLII 796 (SCC),  2 S.C.R. 371, remains valid in determining whether fraud vitiates consent to sexual relations — Whether non-disclosure of HIV status in circumstances where no realistic possibility of transmission exists can constitute fraud vitiating consent — Criminal Code, R.S.C. 1985, c. C-46, ss. 265(3)(c), 268, 273.
M was charged with nine counts of aggravated sexual assault based on his failure to disclose his HIV-positive status to nine complainants before having sex with them (ss. 265(3)(c) and 273 Cr. C.). None of the complainants contracted HIV. The trial judge convicted him on six of the counts and acquitted him on the other three, on the basis that sexual intercourse using a condom when viral loads are undetectable does not place a sexual partner at “significant risk of serious bodily harm”, as required by Cuerrier. The Court of Appeal varied the decision, holding that either low viral loads or condom use could negate significant risk. This reduced to two the counts on which M could be convicted, and the Court of Appeal entered acquittals on the four remaining counts. The Crown appealed the acquittals.
Held: The appeal should be allowed in part and the convictions in respect of the complaints by S.H., D.C.S. and D.H. should be restored. The appeal should be dismissed in respect of the complaint by K.G.
This Court, in Cuerrier, established that failure to disclose that one has HIV may constitute fraud vitiating consent to sexual relations under s. 265(3)(c) Cr. C. Because HIV poses a risk of serious bodily harm, the operative offence is one of aggravated sexual assault (s. 273 Cr. C.).
To obtain a conviction under ss. 265(3)(c) and 273, the Crown must show, beyond a reasonable doubt, that the complainant’s consent to sexual intercourse was vitiated by the accused’s fraud as to his HIV status.
The test boils down to two elements: (1) a dishonest act (either falsehoods or failure to disclose HIV status); and (2) deprivation (denying the complainant knowledge which would have caused him or her to refuse sexual relations that exposed him or her to a significant risk of serious bodily harm).
Failure to disclose may amount to fraud where the complainant would not have consented had he or she known the accused was HIV-positive, and where sexual contact poses a significant risk of or causes actual serious bodily harm.
Two main criticisms of the Cuerrier test have been advanced: first, that it is uncertain, failing to draw a clear line between criminal and non-criminal conduct, and second, that it either overextends the criminal law or confines it too closely — the problem of breadth. While it may be difficult to apply, the Cuerrier approach is in principle valid. It carves out an appropriate area for the criminal law — one restricted to “significant risk of serious bodily harm”. The test’s approach to consent accepts the wisdom of the common law that not every deception that leads to sexual intercourse should be criminalized, while still according consent meaningful scope.
The Cuerrier requirement of “significant risk of serious bodily harm” should be read as requiring disclosure of HIV status if there is a realistic possibility of transmission of HIV. This view is supported by the common law and statutory history of fraud vitiating consent to sexual relations, and is in line with Charter values of autonomy and equality that respect the interest of a person to choose whether to consent to sex with a particular person or not. It also gives adequate weight to the nature of the harm involved in HIV transmission, and avoids setting the bar for criminal conviction too high or too low. If there is no realistic possibility of transmission of HIV, failure to disclose that one has HIV will not constitute fraud vitiating consent to sexual relations under s. 265(3)(c).
The evidence adduced in this case leads to the conclusion that, as a general matter, a realistic possibility of transmission of HIV is negated if: (i) the accused’s viral load at the time of sexual relations was low and (ii) condom protection was used. This general proposition does not preclude the common law from adapting to future advances in treatment and to circumstances where risk factors other than those considered in this case are at play.
Here, the four complainants all consented to sexual intercourse with M, and testified that they would not have had sex with him had they known he was HIV-positive. M had intercourse by vaginal penetration with the four complainants, during which he ejaculated. At the time of intercourse with the complainants S.H., D.C.S. and D.H., M had a low viral load but did not use a condom. Consequently, those convictions should be maintained. As regards K.G., the record shows that M’s viral load was low. When combined with condom protection, this did not expose K.G. to a significant risk of serious bodily harm. This conviction must accordingly be reversed.