Non-disclosure of HIV status by one party in a sexual act can be aggravated sexual assault. R. v. Mabior, 2012 SCC 47, held that where an HIV-positive person used a condom in sexual intercourse and had a low viral load, HIV non-disclosure does not constitute aggravated sexual assault. In such circumstances, the realistic possibility of HIV transmission necessary to prove the offence does not exist. Since Mabior, advances in science on the risk of HIV transmission have created a new legal landscape for HIV non-disclosure cases. The scientific development on HIV transmission risk is reflected in recent case law, recommendations from the Department of Justice, and new Ontario Crown policy. This article is intended to discuss the current state of the law and is separate from the broader public policy debate about the criminalization of HIV non-disclosure.
The Legal Framework for HIV Non-Disclosure Cases
R. v. Mabior
Mabior is the most recent Supreme Court case that establishes when non-disclosure of HIV status can be aggravated sexual assault under s. 273(2)(b) of the Criminal Code. HIV non-disclosure can constitute fraud that vitiates otherwise valid consent to a sexual act. Fraud requires a dishonest act and deprivation. In the context of HIV, Mabior held:
- Dishonesty is met where the complainant would not have consented had they known the accused was HIV-positive.
- Deprivation is met where the sexual contact posed a significant risk of bodily harm, which entails a realistic possibility of HIV transmission. There is no realistic possibility of HIV transmission where the accused establishes, (1) they used a condom and (2) had a low viral load. Mabior did not provide a numerical cut-off for a low viral load.
Mabior recognized that the legal assessment of a realistic possibility of HIV transmission could change with future advances in treatment.
R. v. Felix
R. v. Felix, 2013 ONCA 415, clarified part of the Mabior framework. The issue on appeal was whether the Crown was required to prove, in every case, that the specific viral load of the accused posed a realistic possibility of HIV transmission in the circumstances. The Court of Appeal held that the Crown was not required to do so. Instead, intercourse without a condom by a person who did not disclose their HIV status was sufficient for a prima facie case of aggravated sexual assault. The Court held that a case-specific evidentiary burden on the Crown on the risk of transmission would negate the legal clarity that Mabior intended to provide.
The Scientific Shift
Since Mabior, the scientific understanding of HIV transmission risk has developed. There is scientific consensus that a viral load of 200/copies ml or less results in effectively zero risk of HIV transmission.
The viral load is a measure of the amount of HIV per millilitre of blood. When a person’s viral load is lower, the likelihood they will transmit HIV is reduced. An HIV-positive person on antiretroviral therapy, a medical treatment that sharply reduces HIV replication, will usually have an undetectable or low viral load.
An undetectable or suppressed viral load is different than a low viral load. An undetectable viral load is when standard tests to measure HIV in the blood do not detect HIV. However, the term undetectable may refer to a different level of HIV measurement depending on the specific test. An undetectable viral load is sometimes referred to as viral suppression.
Since Mabior, a series of major scientific studies have examined the risk of HIV transmission where one partner is HIV-positive, with a viral load of 200 copies/ml or less, and one partner is HIV-negative. In these studies, no transmission of HIV has occurred in vaginal or anal intercourse between serodiscordant partners, when the HIV-positive person had a viral load of 200 copies/ml or less. The conclusion of these studies, in the words of the US Centres for Disease Control, is that there is “effectively zero risk” of HIV-transmission where the viral load is 200 copies/ml or less.
The Legal Shift
R. v. CB
R. v. CB, 2017 ONCJ 545 is the first Ontario case where the accused, charged with aggravated sexual assault for HIV non-disclosure, was acquitted because their viral load was undetectable during the sexual acts. The trial judge held that an undetectable viral load alone negated a realistic possibility of HIV transmission. CB is an evolution of the legal standard in Mabior, which required a condom and low viral load to negate a realistic possibility of HIV transmission.
The defence expert, the Director of the HIV Clinic at McMaster University, reviewed the latest science on the risk of HIV transmission. The expert explained that while the risk of transmission can never be defined as zero in a scientific context, the studies indicated the degree of risk was “zero…if zero could be measured.”
The trial judge cited the guidance in Mabior that the assessment of a realistic possibility of HIV transmission could adapt based on advances in treatment. The judge held that the common law had to adapt to reflect the latest science that an undetectable viral load does not pose a realistic possibility of HIV transmission.
R. v. Goodchild
In R. v. Goodchild, 2017 ONSC 6739, the accused was charged with three counts of aggravated sexual assault. The accused argued that that condom use alone negated a realistic possibility of HIV transmission. A strict application of Mabior would reject that argument. However, the trial judge agreed that in light of changing science, the scientific conclusions referenced in Mabior could not be taken at face value to risk of transmission. Nonetheless the trial judge found that on the evidence before them, condom use alone did not negate a realistic possibility of transmission.
Nova Scotia Case: R. v. Thompson
Briefly, counsel may also wish to review R. v. Thompson, 2016 NSSC 134. In Thompson, no realistic possibility of HIV transmission was found in the instances where the accused had a viral load below 1,500 copies/ml or less. The trial judge also found no realistic possibility of transmission with condom use alone, irrespective of viral load.
The Department of Justice Report
In December 2017, the federal Department of Justice released a comprehensive report that examined the response of the criminal justice system to HIV non-disclosure. The report is relevant for all criminal justice system actors. For example, the report discusses factors relevant to charging decisions and the overall seriousness of an offence. The report echoed scientific consensus that a viral load of 200 copies/ml or less poses a “negligible risk” of transmission. The report also stated that unprotected intercourse poses a “low risk” of transmission.
Ontario Crown Policy
On December 1, 2017, the Ontario Minister of Health and Attorney General released a joint statement that they would not prosecute cases of HIV non-disclosure where a person was on antiretroviral therapy and maintained a suppressed viral load for six months. To date, other provinces and territories have not issued prosecutorial guidelines to the same effect.
Recent case law and Crown policy exclude criminal liability in Ontario in certain cases, but there are grey areas that are relevant for all criminal justice system actors to carefully evaluate when a charge has been laid.
1. Where a charge is laid against an accused who has maintained a suppressed viral load for less than six months, there may still have had a suppressed viral load at the time of the sexual act, which would negate a realistic possibility of transmission. Additionally, the specific time of the alleged offence may take on particular importance in the context of shifting viral loads.
2. Where the accused had a low viral load but did not use a condom, there may be scientific evidence that the low viral load alone was insufficient to create a realistic possibility of HIV transmission (as in Thompson). The defence may still bear the burden in this regard per Felix. However, the significant shift in science since Mabior (2012) and Felix (2013) raises the important consideration that the record relied on in Mabior must be viewed in the context of current scientific knowledge.
3. Where the accused had a viral load close to the 200 copies/ml threshold that CB found negated a realistic possibility of transmission, special attention should be paid to whether a minor variation is adequate to rise to the level of a realistic possibility of HIV transmission.
The new legal landscape for HIV non-disclosure cases incorporates important scientific developments on the risk of transmission. The close nexus between scientific fact and legal proof underscores the need to carefully evaluate the latest science, legal precedent, and individual circumstances of each case.
 Mabior, at para. 104.
 Felix, at paras. 53-54.
 CB, at paras. 63-73.
 CB, at paras. 89-90.
 Goodchild, at paras. 2-4.
 Goodchild, at para. 82.
 Goodchild, at para. 81.
 Thompson, at para. 132.
 Ibid. A separate conviction for sexual assault causing bodily harm on the basis that non-disclosure of HIV created psychological harm that vitiated consent was overturned on appeal, see R. v. Thompson, 2018 NSCA 13.
 DOJ Report, at p. 29.
 DOJ Report, at p. 29.
About the author
Shakir Rahim is an articling student with the Crown Law Office – Criminal at the Ministry of the Attorney General and a member of the OBA Criminal Justice Section Executive. He is also a member of the boards of the AIDS Committee of Toronto and Alliance for South Asian AIDS Prevention. The views expressed in this article are his own.
Any article or other information or content expressed or made available in this Section is that of the respective author and not of the OBA.