Mabior and D.C.R. v. Mabior (C.L.), 2010 MBCA 93 (CanLII)
Part 1: Does HIV Non-Disclosure Equal Rape?
On February 8, the Supreme Court of Canada will hear Crown appeals in two cases that will determine whether and when people living with HIV are to be treated as rapists under Canadian law.
In R v Mabior, 2010 MBCA 93, and R v DC, 2010 QCCA 2289, the Manitoba and Quebec Courts of Appeal, respectively, determined that a person living with HIV was not guilty of aggravated sexual assault for not having disclosed his or her status because, in certain circumstances, there was no “significant risk of serious bodily harm” — the threshold triggering the duty to disclose that was articulated by the majority of the Supreme Court of Canada some 14 years ago in R v Cuerrier,  2 SCR 371.
In each appeal, the Crown seeks to do away, in whole or in part, with this limitation on the law and to expand radically the ambit of the criminal law. In contrast, the defence and numerous interveners, including the Canadian HIV/AIDS Legal Network (for whom we speak), have argued that, at a bare minimum, such a limitation must be retained and should be refined to achieve much-needed clarity about when the law may require disclosure upon pain of criminal penalty for not disclosing. (The Court could also provide additional guidance that would ensure the heavy hand of the criminal law is further limited so as to be reserved for the most blameworthy cases.)
The Need for Both Clarity and Fairness
All parties agree that the lack of clarity in the Cuerrier standard has produced more than a decade of confusion and uncertainty. This has been particularly the case for people living with HIV, but also for health professionals and community agencies working in the field of HIV prevention and care. Furthermore, the unfairness that McLachlin J (as she then was) predicted would arise from the lack of clarity in the majority’s approach has been evident as well. The same conduct, posing the same risk of harm (or lack thereof), has been prosecuted in one case or province but not another, and has resulted in both convictions and acquittals.
In one particularly extreme case, a man living with HIV was charged with aggravated sexual assault, and his identity repeatedly broadcast in the media, simply for allegedly performing oral sex a few times on his ex-partner – conduct that could not pose more than an infinitesimal risk of transmission at the very most.
Yet the prosecution’s proposed “solution” before the Supreme Court in the Mabior and D.C. appeals is to eliminate uncertainty by compounding the unfairness – that is, by doing away with the existing (imperfect) limitation on the criminal law in cases of HIV non-disclosure. Indeed, the Manitoba Prosecution Service argues in Mabior that disclosure of HIV-positive status is required in all cases, and that the “fraud” of not disclosing should be treated in law the same as forced sex – regardless of the risk of harm. Rather than basing the application of the criminal law on an objective assessment of whether a person poses a real risk of harm, the Crown asserts that no consent to a sexual encounter can be legally valid unless the HIV-positive partner has disclosed her or his status to the (ostensibly) HIV-negative partner.
Yet can it be justified to criminalize every sexually active person living with HIV for not claiming proactively this stigmatized identity even in cases where there is no appreciable risk (such as where measures have been taken to reduce the already small risk of transmission attendant upon a given act)? As discussed further below the argument rests entirely upon a view of how “consent” should be defined in law that is troublingly simplistic and overbroad.
The prosecution maintains that the law does not single out people living with HIV – and to be fair, there is the potential for criminal prosecution for not disclosing other sexually transmitted infections. This, if nothing else, should give some pause to those whose rush to judgment against people living with HIV might be rooted in part in an inability or unwillingness to consider such a rule of any potential relevance to their own circumstances. Indeed, in the last few years, there have been a small handful of cases of people prosecuted for aggravated sexual assault for not disclosing viral hepatitis or, more recently, herpes – a legal development that ought to be of concern to the 20-25% of Canadians with the latter virus.
Yet the reality, confirmed by a survey of prosecutions to date, and evident time and again from a review of testimony and argument at trial, is that this application of the law is driven by an exaggerated sense of HIV risk above all else. More than 130 people living with HIV in Canada have now faced some of the most serious charges in our Criminal Code, including in cases where there was no transmission or even a significant risk of transmission. Such prosecutions continue to generate fear and stigmatization, directly affecting the lives of some of the most vulnerable in our communities and undermining broader efforts for HIV prevention and care.
It would be a mistake to cure uncertainty in the law by compounding its injustice. And a sweeping, unjust application of the law is precisely what the prosecution in these appeals is urging – criminalize every person with HIV who does not disclose, regardless of whether there was a risk of transmission. In our view, such a radical extension of the criminal law is unwarranted. It ignores science, runs contrary to the bulk of the jurisprudence to date, and disregards sound public policy reasons to limit the law to the most blameworthy cases.
It is based on these very factors that interveners such as the Canadian HIV/AIDS Legal Network and AIDS organizations from across the country have urged the Court in these appeals to retain the significant risk test but to remove some of its current uncertainty by clearly articulating that there is no crime for HIV non-disclosure when:
- a person uses condoms for vaginal or anal sex;
- a person has a low or undetectable viral load at the time of the sexual encounter (unless the prosecution can nonetheless establish other factors beyond a reasonable doubt that would give rise to a “significant risk” of transmission); or
- a person engages in oral sex, with or without the use of a condom or other latex barrier.
In our submission, such clarifications of the current legal standard would accord with the science, would be consistent with the bulk of decided cases to date, and would best reflect public policy objectives of effectively responding to the HIV epidemic.
The Law Should Evolve With Science
In 1998, when Cuerrier was decided, on the basis of an evidentiary record dating back to 1992, the Supreme Court, concerned about at least some of the pitfalls of over-criminalization, chose to limit liability for non-disclosure of HIV (or other sexually transmitted infections) to those cases where there is a “significant risk of serious bodily harm.” Now, with the benefit of two decades of further research, we have a greater appreciation that HIV is difficult to transmit and that, in many cases, the risk is insignificant.
For example, condom use reduces the risk of transmission by 80% according to the most commonly cited review of the evidence. (Some other, more recent reviews put the figure even higher.) Since 1996, there have also been dramatic breakthroughs in HIV treatment that also advance the cause of preventing HIV transmission. As recognized by the Courts of Appeal below in Mabior and D.C., effective use of antiretroviral drugs, which is now the standard of care in high-income countries such as Canada, lowers the “viral load” of a person with HIV to extremely low or even “undetectable” levels.
Last year, results from the largest study to date found that getting people on treatment early reduced the risk of transmission by 96% (M.H. Cohen et al, “Prevention of HIV-1 Infection with Early Antiretroviral Therapy,” New England Journal of Medicine2001; 365: 493-505). Applying such a reduction to the standard estimated risk of HIV transmission associated with unprotected vaginal sex would mean an estimated per-act risk of transmission of 1 in 31,250 or 0.0032%.
We note such figures precisely because there has too often been an inflated perception of people living with HIV as posing a dire threat to the health and safety of others – and because there is a need for heightened vigilance in such circumstances against the possible misuse of the criminal law rooted in misinformation and fear.
Courts’ Attempts to Clarify the Cuerrier Standard
It is worth noting as well the prosecution argument in Mabior and D.C. that the criminal law regarding HIV non-disclosure cannot and should not be based on assessments of the risk of transmission. Yet it should also be remembered that there are other provisions in our criminal law in which liability is indeed dependent on surpassing a particular numerical threshold representing a risk of harm – consider the treatment of driving under the influence as but one example. And in all sorts of cases, criminal and otherwise, courts regularly assess expert scientific evidence as part of determining how and when to apply the law.
Indeed, numerous lower courts have, since Cuerrier, managed to interpret and apply the “significant risk” threshold in making determinations about the duty to disclose and criminal liability (or lack thereof) for not disclosing. Until recently, the bulk of those cases have, for example, taken the correct view that the use of condom would preclude criminal liability for not disclosing.
Yet there remains a degree of uncertainty and inconsistency in the law that is troubling, given some of the prosecutions that have been witnessed – and some recent trial judgments that would dispense entirely with any assessment of the risk of harm. The federal criminal law should be uniform across the country, it should provide clear advance notice as to what is prohibited and liability for the same conduct should not depend on whether one jury’s assessment of sex with condoms is or is not risky enough to be considered “significant.”
It is here that the Supreme Court has a key role to play in refining and clarifying the law, in accord with good science and with larger public policy objectives, so as to give clear guidance to lower courts that certain conduct – e.g., sex with condoms, or sex in circumstances where there is a low or undetectable viral load – falls below the criminal legal threshold of “significant” risk.
Part 2: Is Criminal Law the Answer to Non-Disclosure?
Public Policy Reasons to Limit the Law
There is little reason to think that the criminal law plays any significant role in reducing the spread of HIV. Despite claims to the contrary, applying criminal law to HIV risk behaviour has not been shown to reduce the spread of HIV by incapacitating or rehabilitating particular offenders, or by deterring others. Indeed, what little evidence there is suggests the absence of any deterrent impact. (Notwithstanding this, it appears to have been easily assumed by Cory J. in R v Cuerrier,  2 SCR 371, that the law plays such a role.) Furthermore, the function of the criminal law as an HIV prevention tool is largely non-existent when applied to those whose use of condoms or whose low or undetectable viral load means they already pose little risk of transmission.
In contrast, there is a substantial body of research demonstrating the beneficial impact of HIV testing and other public health initiatives in modifying behaviour that risks transmitting HIV, making testing a centrepiece of national and international HIV strategies. Promoting regular HIV testing, and hence earlier detection of infection and interventions to modify risk behaviour, is particularly important, given that it is in the early weeks following initial HIV infection that a person’s viral load tends to be highest and hence she or he is most infectious. The more people engage in high-risk activity while unaware of their own HIV infection, the greater the damage to public health. The Public Health Agency of Canada estimates that, as of the end of 2008, an estimated 26% of those living with HIV in Canada were unaware of their infection.
Therefore, to the extent that overly broad criminalization creates an additional disincentive to HIV testing – either directly because knowledge of HIV-positive status exposes a person to a greater risk of criminal prosecution for subsequent non-disclosure, or indirectly by creating further stigma surrounding HIV and people with HIV – it hinders HIV prevention. At the time Cuerrier was decided in 1998, there was little evidence available in the literature on this point.
Now, however, there is some emerging data – including research in Ontario – suggesting that there is indeed some such adverse impact, at least among some populations that are likely to be at higher risk of HIV infection. A broad use of the criminal law also hinders open discussion with health professionals and counsellors of sexual practices and of challenges to disclosure, as such information could later be used in criminal investigations. This undermines both HIV prevention efforts and care for people living with HIV.
Invasions of privacy and the stigmatizing effect of criminalization are other legitimate public policy considerations in circumscribing the use of the criminal law. Cases involving criminal charges against persons living with HIV garner considerable media attention, disproportionate given the small number of such cases overall (130 prosecutions to date) compared to the estimated 65,000 people living with HIV in Canada. Long before any resolution at trial, police media advisories and media reports may reveal publicly an accused’s identity (including photograph) and HIV status, as well as the criminal allegations and details about his or her personal and sexual life.
Stigma also has adverse effects on the effective diagnosis and treatment of HIV among people living with it and on the further spread of HIV, including impeding testing, disclosure (including to sexual partners) and the adoption of protective measures. As observed by the Crown’s medical expert at trial in Mabior: “The stigma has not gone, that’s for sure. There remain disclosure issues. I think it’s very hard for us sometimes to realize how difficult it is for people to tell other people that they have HIV.” It may be instructive for the reader, or for a judge, to consider for a moment what would be involved in walking down the street wearing a t-shirt declaring that one is “HIV-positive,” or to contemplate revealing this fact to an intimate partner.
Consent and Its Retroactive Vitiation
If, as we argue, there are good reasons – based on science, existing jurisprudence, and broader public policy concerns – to limit the law as we have argued, what argument remains for extending the criminalization of people living with HIV as far as the Crown is proposing before the Supreme Court of Canada?
At the heart of these appeals lies the fundamental question – what constitutes (aggravated) (sexual) assault? Because the legal test articulated in Cuerrier is grounded in section 265(3)(c) of the Criminal Code, RSC 1985, c C-46 - fraud vitiating consent – what the Court is in fact grappling with is how best to protect personal autonomy and physical integrity, in light of the complex and diverse real-world factors at play in human sexual relationships.
Violence against women generally, and sexual assault in particular, remains a persistent and deplorable reality in Canada. And despite the 1983 revisions to the rape provisions of the Criminal Code – which were intended to provide greater justice for assaulted women by improving the rate of reporting, reducing the rates of attrition for these offences, and reduce prejudicial attitudes towards women that impaired the ability of the criminal justice system to respond effectively to violence against women – little improvement has been seen.
Assault laws and their enforcement therefore remain a critical concern of women’s rights and anti-violence advocates throughout Canada. Furthermore, given the link between sexual violence and vulnerability to HIV, legal responses to sexual violence are also of critical importance to HIV prevention, care treatment, and support.
In light of this reality one must ask: why should the remote possibility of exposure to HIV be classified as the most serious of assaults? The law is supposed to account for different degrees of severity. It flies in the face of logic that a remote possibility of exposure to HIV during otherwise consensual intercourse would constitute an aggravated sexual assault while a rape would be treated as sexual assault simpliciter, if prosecuted at all. This is demonstrative of the failure of the criminal justice system’s inability to deal with sexual violence.
In the cases at bar, the ability of the complaints to give genuine consent to sexual intercourse is being challenged. As explained in R v Ewanchuk,  1 SCR 330, consent in Canadian law is purely subjective; consent is the state-of-mind of the complainant at the time of the sexual activity. To be legally effective, consent must be freely given. The law respects and protects sexual autonomy by making the actual subjective consent of a complainant determinative. In light of the persistent inequalities and violence still facing women (and sexual minorities), preserving a strict standard of subjective consent is considered essential.
However, Parliament has defined a list of circumstances where even if the complainant did genuinely consent at the time of the sexual activity, or there is some doubt as to whether or not he or she consented, consent will be vitiated (Criminal Code, section 265.3). The law’s willingness to vitiate consent on policy grounds has been described as “significantly limited” (R v Jobidon,  2 SCR 714), and rightly so. Overriding a person’s freely given consent is not a step that should be taken lightly. Judging the reasonableness of his or her decision to consent to sexual activity represents a momentous intrusion into his or her personal decision-making and invites the imposition of outside values.
It also undermines the ability the sexual partner (the accused) to rely on that consent. Transforming a consensual sexual encounter into a sexual assault, a sexual partner into a sex offender, is certainly appropriate in certain circumstances but, as the majority of the Court pointed in Cuerrier (per Cory J.), it should not be undertaken too readily in light of the gravity of the consequences. Not just any “if I had known” or “sober second thought” should suffice.
To be clear, HIV non-disclosure cases are not equivalent to other sexual assaults. In HIV non-disclosure cases, both partners have consented to the sexual activity. (If they have not, then HIV non-disclosure is not the crux of the issue – instead, whether there was actual subjective consent to the sexual encounter is at issue, which has nothing to do with HIV-positive status.) Most HIV non-disclosure cases are not about a perpetrator asserting power over a complainant or objectifying the complainant for the perpetrator’s own sexual gratification.
Most of these cases are more appropriately seen as cases of “informational asymmetry” and the harm is not sexual in nature. It should be remembered that the non-disclosure may result from a lack of power as opposed to an exercise of power, given the stigma surrounding HIV infection and the marginalized position of many people living with HIV – and in some cases (disproportionately women), the HIV-positive partner may also be in a position of dependence or vulnerability vis-à-vis the (ostensibly) HIV-negative partner.
In HIV non-disclosure cases, care must be taken to avoid slippage between the subjective standard of whether there was consent to the act in the first place, and the objective standard of determining whether the consent that was given at the time should be retroactively vitiated because of fraud. Different policy concerns are at play. Moreover, protecting the Ewanchuk standard and keeping sexual assault trials free of rape myths and gender stereotypes demands no less than such caution.
As Cory J. noted in Cuerrier (para 135), limitations on the concept of fraud as it applies to section 265(3)(c) are necessary or courts would be overwhelmed and convictions under the section would defy common sense. Consent given without the benefit of “significant relevant factors” may be invalid, but how to delineate which factors are truly significant to consent has yet to be adequately resolved, hence the present appeals.
What makes HIV-positive status a “significant relevant factor,” such that not revealing one’s HIV-positive status to a sexual partner justifies invalidating consent and convicting the person living with HIV of a most serious assault? In Cuerrier, Cory J. indicated that it was because of the “significant risk of serious bodily harm” and the need for a person to consent to such a risk over and above consenting to the sexual act.
In Mabior, the prosecution would have the “significant risk” standard removed or watered down so much as to require people living with HIV to disclose their status in virtually every circumstance, even in the absence of any appreciable risk of transmission based on uncontroverted science. If we are truly to take seriously sexual autonomy and want to protect the subjective standard of consent, we must question whether invalidating consent in such circumstances is justifiable.
Do we, as a society, want consent freely given to be invalidated because of informational asymmetries of all sorts? Do we accept that those who do not disclose to their sexual partners their marital status, their religion, or their long-term plans should be convicted of aggravated sexual assault? To many people these pieces of information are also very important factors, and much like a sexual encounter where there is no appreciable risk of HIV transmission, they pose limited risk of physical harm.
In Mabior, the appellant Manitoba Prosecution Service takes the argument for full disclosure, irrespective of risk, one step further, claiming that by failing to disclose his HIV-positive status the accused deprived the complainants of any opportunity to protect themselves or to choose the level of risk they would accept.
Yet such a claim is clearly wrong. While information regarding a partner’s health status may help a person decide whether and how to protect him/herself, and what sort of sexual activity to engage in, that information is certainly not a necessary condition to be able to make such decisions. Millions of Canadians regularly can and do choose to use condoms, or in other ways engage in safer sex, without precise information regarding the possibility of acquiring a sexually transmitted infection from a partner.
Moreover, relying on a partner’s disclosure of an infection as a pre-requisite for protecting oneself from infection is a risky strategy that should not be encouraged, given that the Public Health Agency of Canada estimates that one-quarter of people who have HIV in Canada have not yet been diagnosed and the most infectious period has been shown to be in the early stages of infection when a person is least likely to have been diagnosed.
To assume that a person is incapable of making the decision to reduce his or her exposure to possible sexually transmitted infections and is completely dependent on the partner to inform him or her of the advisability of reducing risk is not only false, but it assumes all sexual partners are passive, lacking agency, and never equal and active participants in the sexual encounter. Surely this is contrary to the objective of empowering every person to exercise their full sexual autonomy. Surely it cuts away at the subjective consent standard and the objectives of ending gender inequality and violence against women. In effect, it is a restatement of the gender stereotypes and rape myths that anti-violence advocates have worked so hard to eradicate from the law of assault.
Unfortunately, many women in our society are unable to make autonomous decisions about when to have sex, with whom, what type, and whether to use condoms. The reasons for this are diverse, and include a lack of sexual health information, the pressure of cultural norms, living in a situation of dependence, lack of confidence and negotiation skills, and violence and coercion.
But knowledge of a sexual partner’s HIV status will not change any of these factors or make women in such circumstances any more autonomous. The threat of prosecution for alleged non-disclosure may in fact be used as a tool of abuse against vulnerable women living with HIV, pushing them further away from autonomy, justice, dignity, and safety.
Because many would “want to know” if a sexual partner had HIV (or another sexually transmitted infection), it is tempting to think that the law should always oblige disclosure – and punish non-disclosure harshly. But as the Law Commission of Canada recalled in its report on the role of the criminal law, Our Criminal Law (1992):
…we have to keep our heads, not hit out blindly, and not mistake activity for action. We must avoid being misled by fears, frustrations or false expectations, however natural they may be…. The fact is, criminal law is a blunt and costly instrument… So criminal law must be an instrument of last resort. It must be used as little as possible. The message must not be diluted by overkill… Society’s ultimate weapon must stay sheathed as long as possible. The watchword is restraint – restraint applying to the scope of the criminal law, to the meaning of criminal guilt, to the use of the criminal trial and to the criminal sentence.
Prejudice, misinformation, and fear are no legitimate basis for deploying the criminal law. Rather, there is an urgent need for careful, reasoned limits that would permit the law to be applied in appropriate circumstances (e.g., cases of intentional transmission), while both respecting autonomy in sexual relationships and refraining from further stigmatizing people living with HIV and undermining effective prevention and treatment of the virus.