Criminal Code reform needed to address HIV non-disclosure prosecutions

Via email: mcu@justice.gc.ca

The Honourable Sean Fraser, P.C., M.P.
Minister of Justice and Attorney General of Canada
Department of Justice Canada
284 Wellington St.
Ottawa, ON K1A 0H8

Dear Minister Fraser,

Re: Request for Criminal Code Reform regarding HIV Non-Disclosure

I am writing on behalf of the Canadian Bar Association Sexual and Gender Diversity Alliance Section, known as SAGDA (the CBA Section), to address the issue that HIV non-disclosure remains subject to prosecution under the Criminal Code and to ask that the government consider amending provisions that are disproportionate in most situations of non-disclosure.

The CBA is a national association of over 40,000 members, including lawyers, law students, notaries and academics, and our mandate includes seeking improvement in the law and the administration of justice. SAGDA addresses the concerns of two-spirited, lesbian, gay, bisexual, transgender, queer and intersex (2SLGBTQI+) people in the CBA and provides a forum for the exchange of information, ideas and action on legal issues relating to sexual orientation and gender identity.

Current Legal Framework

While HIV non-disclosure is not addressed through a discrete provision in the Criminal Code, by precedent, it has been prosecuted under the law of aggravated sexual assault under section 273, on the basis that consent is vitiated by fraud under section 265(3)(c). ¹ The governing framework, shaped by R v Mabior and R v D.C., turns on whether there is a “realistic possibility of transmission.”²

This approach relies on broad statutory language and judicial interpretation rather than clear legislative direction. It results in the use of one of the most serious offences in the Criminal Code, with significant penal consequences, in circumstances that may involve no violence and little or no risk of harm.

This framework raises concerns about overbreadth, proportionality, and legal coherence. Sexual assault provisions are designed to address inherently violent and non-consensual conduct. The use of these provisions to prosecute cases of non-disclosure of HIV status carries risks of conflating non-disclosure with violence. Current scientific consensus establishes that individuals living with HIV who maintain an undetectable viral load do not transmit the virus through sexual activity.³ Accordingly, legislative reform should align criminal liability with contemporary scientific evidence regarding HIV transmission risk.

Continued criminalization also reinforces the historic stigma attached to HIV. Treating non-disclosure as sexual assault labels people living with HIV as sexual offenders, which discourages testing (some reason that a person cannot be prosecuted for a status they do not know) and engagement with treatment. More broadly, criminalization shapes public attitudes, casting HIV as a crime rather than a manageable health condition.

Inconsistency in Prosecutorial Approaches

At the federal level, the Public Prosecution Service of Canada issued a directive in 2018 limiting prosecutions where there is no realistic possibility of transmission (e.g., where a person has maintained a suppressed viral load, where condoms were used or where only oral sex took place). ⁴ However, that directive applies only to federal prosecutions, mainly in the territories. Provincial approaches remain uneven.⁵ Ontario's directive (2017) provides that charges will not proceed where the person has maintained a suppressed viral load for six months, or where a condom was used and the viral load was low. British Columbia's policy (2019) takes a similar approach and also excludes cases involving only oral sex. Quebec has issued an "institutional position" (2020), not a formal directive, which excludes prosecution only where viral load is suppressed. Alberta has no formal directive; only informal guidance communicated in a 2019 letter. The other provinces appear to have no published guidance at all.

The case law has not resolved these concerns. In Mabior, the Supreme Court held that low viral load combined with condom use negates a realistic possibility of transmission, while noting that the test may adapt "to future advances in treatment."⁶ In R v J.M., the Ontario Court of Appeal set aside a conviction where the accused had an undetectable viral load, but declined to adopt a general rule beyond the circumstances of the actual case.⁷ People living with HIV must therefore still prove, case by case and after being charged, that their conduct posed no realistic risk.

Previous Review and Consultation

In 2019, the House of Commons Standing Committee on Justice and Human Rights recommended that the Government of Canada end the use of sexual assault law in HIV non-disclosure cases and confine the criminal law to cases involving transmission of HIV.⁸

Between October 2022 and January 2023, the Department of Justice consulted Canadians on the options for reform, including whether sexual assault offences are appropriate in these cases, whether intent to transmit or actual transmission should be required, whether the criminal law should apply where precautions were taken, and whether a new HIV- or STI-specific offence should be created.⁹ The Department's "What We Heard" report found that a significant majority (85%) of respondents, including legal experts, health professionals, academics and people living with HIV, supported ensuring that sexual assault offences are not used where the sole issue is HIV non-disclosure.¹⁰

In 2023, the CBA Section wrote to the Department of Justice on HIV criminalization endorsing the 2022 Community Consensus Statement issued by the Canadian Coalition to Reform HIV Criminalization.¹¹  The Section’s position was, and remains, that sexual assault law should not apply to HIV non-disclosure and that criminal liability should require both intent and actual transmission.

In February 2026, the Government Representative in the Senate acknowledged that the current approach "has had serious and harmful consequences," stating that "Canada publicly endorses the science behind 'Undetectable = Untransmittable,' and the law must reflect modern science, fairness and sound public health evidence."¹² Despite this record, no legislation has been introduced and no timeline has been set.

Need for Reform

Legislative reform is needed because prosecutorial directives and case law cannot resolve these concerns. Directives do not change the substantive law, and courts can only proceed case by case. Where the realistic possibility test is met, the conduct remains aggravated sexual assault, which carries a maximum of life imprisonment and may result in sex offender registration.

Requiring both intent and actual transmission confines the criminal law to the most blameworthy conduct, without leaving deliberate wrongdoing unaddressed: a person who intends to transmit HIV but does not succeed may still be prosecuted for attempt under section 24, as in R v Williams.¹³

The Justice Committee proposed the creation of a specific offence concerning infectious disease non-disclosure where actual transmission occurs. The CBA Section shares the Committee’s objective of removing HIV non-disclosure from the law of sexual assault and limiting the criminal law to circumstances involving actual harm. However, creating a new offence directed specifically at infectious disease transmission may be unnecessary and risks perpetuating the exceptional treatment and stigmatization of people living with HIV (or other sexually transmitted or blood borne infections). Where actual transmission causes bodily harm and the requisite elements of an existing Criminal Code offence are established, offences of general application, such as aggravated assault, may provide an appropriate basis for prosecution.

Recommendations

Considering the above, the CBA Section recommends that the Government of Canada:

1. Amend section 265 of the Criminal Code to clarify that non-disclosure of HIV status does not, on its own, vitiate consent as fraud under paragraph 265(3)(c). As a result, sexual assault offences, including aggravated sexual assault under section 273, would not apply where the only issue is HIV non-disclosure.
2. Amend section 265 of the Criminal Code to create one narrow exception to this rule. Non-disclosure of HIV status should only vitiate consent in cases in which there was the intention to transmit HIV and actual transmission of HIV occurred. In those cases, the accused should be prosecuted under a non-sexual offence of general application, such as aggravated assault, rather than for sexual assault.

Conclusion

The 2019 Justice Committee report and 2023 consultation process provide a strong foundation for reform. Legislative reform in this area would better align the Criminal Code with contemporary science, promote consistency across jurisdictions, and ensure that criminal liability is imposed in a manner that is fair, proportionate, and principled.

We would welcome the opportunity to engage further on this issue.

Sincerely,

(Yasmin Khaliq for Anastacia Deslauriers and Brian Yuen)

CC: Minister of Women and Gender Equality and Secretary of State
(Small Business and Tourism) for Women and Gender Equality Canada rechie.valdez@parl.gc.ca

Acting Director for the 2SLGBTQI+ Secretariat, Women and Gender Equality Canada (WAGE) Jennifer.Collins@fegc-wage.gc.ca

Director General of the Social Affairs Branch, Women and Gender Equality Canada (WAGE) Marc-Andre.Millaire@fegc-wage.gc.ca

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