Criminal Code reform needed to address HIV non-disclosure prosecutions

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In a nutshell

The Canadian Bar Association’s Sexual and Gender Diversity Alliance Section (SAGDA) is urging the federal government to address the issue that HIV non-disclosure remains subject to prosecution under the Criminal Code. The current legal framework raises concerns about overbreadth, proportionality, and legal coherence. The CBA asks that the government consider amending provisions that are disproportionate in most situations of non-disclosure.

Key recommendations

Canada publicly endorses the science behind 'Undetectable = Untransmittable,' and the law must reflect modern science, fairness and sound public health evidence. The CBA therefore recommends that the government:

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 the code. 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.

Why this matters

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. Accordingly, legislative reform should align criminal liability with contemporary scientific evidence regarding HIV transmission risk.

Read the full submission.