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 Cuerrier 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 — 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, [1999] 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, [1991] 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.

Conclusion

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.

In R. v. Mabior, 2010 MBCA 93, and R. v. D.C., 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, [1998] 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 Medicine 2001; 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.

Richard Elliott and Alison Symington are with the Canadian HIV/AIDS Legal Network. Read more about the appellate level decisions in Mabior and D.C. here.

With the remarkable work of researchers over the past decades, we have made incredible gains in the prevention and treatment of HIV. The United States and the international community stood up and took on this terrible scourge. Thanks to these efforts, millions of lives have been saved and millions more have been transformed.

As researchers in the medical community have struggled to find solutions, policymakers and legislators have also struggled to deliver a measured response to the disease.
The Supreme Court of Canada’s decision in R. v. Cuerrier, [1998] 2 S.C.R. 371, tried to find a solution to a very difficult and real problem: what is to be done when a person fails to disclose their HIV-positive status and has unprotected sex?

In Cuerrier, the Court concluded that this behavior constituted aggravated assault, since the failure to disclose and use appropriate contraceptives would create a “significant risk of serious bodily harm to the complainant” and effectively vitiate sexual consent.
Although (well-intentioned, the Cuerrier precedent has started to show its age. Last year, the Manitoba Court of Appeal courted controversy in R. v. Mabior, remarking on the uncertainties in the Cuerrier test. Noting the medical breakthroughs that had been made in the treatment of HIV/AIDS, the Manitoba appellate court concluded that it might be time for the highest court to revisit the issue.

D.C. v. R., 2010 QCCA 2289, a recent decision out of the Quebec Court of Appeal, poses similar questions about Cuerrier. On August 25, 2011, the Supreme Court granted leave to appeal in D.C., holding that it would be heard with Mabior. As the issue of HIV criminalization heads back to the Court, TheCourt.ca decided to take a look at the issues raised by the Quebec Court of Appeal in D.C.



Facts & Procedural History

The appellant and complainant met innocuously enough on the soccer fields where their sons played. During the summer of 2000, their relationship evolved to the level of intimacy.

At this point in the narrative the stories diverge, with the appellant and complainant presenting differing versions of their relationship. The complainant states that they had unprotected intercourse on several occasions prior to the appellant’s disclosure of her HIV positive status. Conversely, the appellant asserts that they had sexual intercourse only once prior to disclosure, and that a condom was used.

After the appellant disclosed her status, the relationship continued for four more years, during which time they lived together and practiced safe sex. Characterized as “tumultuous,” their relationship ended when the appellant asked the complainant to leave the home and was refused. During a heated encounter, the complainant assaulted the appellant and her son, a charge for which he was convicted. 

On February 11, 2005, the complainant filed a complaint against the appellant for the events that took place over the course of the summer of 2000. The appellant was charged with aggravated assault and sexual assault.

The trial judge concluded neither party was credible but went on to conclude that the pair had unprotected sexual intercourse during the period in question. This finding was based primarily on evidence provided by the appellant’s doctor, which included a shorthand note in the appellant’s medical file that read: “sex c new partner condom broke – connsl to disclo”. The judge accepted that the note was true to what the appellant had told the doctor, but concluded that she had lied. He then inferred from this lie that the appellant had unprotected sexual intercourse with the new partner.

In application of the law with respect to sexual assault and aggravated assault, including Cuerrier and Williams, the judge concluded that there was an absence of genuine consent by the complainant at the time of their first sexual encounter. Within the framework of Cuerrier, the trial judge considered the appellant’s HIV status to be an “important and relevant” factor, essential for the consent to be valid. Further, he espoused the view that HIV positive persons have two fundamental responsibilities: 1) to inform their partner of their condition, and 2) to ensure that sexual intercourse presents the least amount of risk possible.
Regarding the charge of aggravated assault, the judge again applied the framework laid out in Cuerrier.  Upon review of the facts on the transmission of the virus and in light of the seriousness of the disease and unprotected nature of their first sexual encounter, the trial judge concluded that the appellant had exposed the complainant to a significant risk of bodily harm. Thus, she was convicted of both charges.

He Said, She Said: Common Issues in HIV Criminalization Cases



In the jurisprudence surrounding HIV criminalization, this case reads like frustrating déja vu, exhibiting several characteristics common to many of the more than 130 people living with HIV who have been subject to criminal charges. Namely, the parties rarely agree on the facts of the case, particularly on whether or not the sexual intercourse in question was protected, how many times it occurred and under what circumstances. These critical facts obviously present significant obstacles with regards to proof and the situation devolves in a “he said, she said” scenario.

The inability to prove the key elements upon which the case turns leaves the outcome to be very unpredictable. As a result, the cases tend to hinge on the credibility of the parties, the determination is, at best, a loose science, and, at worst, an exercise in hunch-based guess work.
Another problematic factor in this realm of prosecution is that charges are frequently laid after the dissolution of a relationship. It could be argued that some of the complaints may be brought for vengeful and vexatious purposes. By leaving HIV positive people vulnerable to criminal prosecution, we are sanctifying the punishment of an already vulnerable group, and pushing this community further onto the fringes of society.

Viral Loads: Considering Mabior



While HIV remains a very serious disease, massive steps have been made in its treatment, which have significant impacts on its proliferation. The development of Highly Active Retroviral Therapy (HAART) enables the reduction of viral loads to the point that they cannot be measured in blood, a situation referred to as an undetectable viral load. With an undetectable viral load, the risk of transmission is drastically reduced. When condoms are used, the risk of transmission is further reduced. Without being zero, the risk is “very, very low”, “remote” and “no greater than the risks associated with driving a car”. Undetectable viral loads were present in both D.C. and Mabior. This striking change in the virulence of the disease highlights the need for the “significant risk of serious bodily harm” test to be revisited.

In Mabior, Steel J.A. noted that “the test set out in Cuerrier is a compromise and involves a certain degree of uncertainty, especially since the results of its application will vary over time depending on medical advances.” She notes that what constitutes “significant risk” varies with the magnitude of the harm and as such, each case must be assessed in light of its own circumstances.

Similarly, in D.C., Chamberland J.A. dismisses the argument that any risk of transmission is “significant” due to the seriousness of the disease. The court pointed out that accepting this position would distort the test. He echoes Madam Justice Steel in noting that the test in Cuerrier was conceived in the early stages of the fight against HIV, a time when the mitigating impacts of condom use and reduced viral loads may not have been well understood or even contemplated.

The inherent uncertainty in the present day application of the test lends credence to the cries for further elucidation of the standard for determining a “serious risk of serious bodily harm”. Where the line ought to be drawn, if at all, remains contentious as it necessarily draws strongly held ethical and moral beliefs into a largely scientific debate.

Looking Forward



Declaring that a failure to disclose one’s positive serostatus is a criminal act is ostensibly meant to encourage persons living with HIV to disclose their status prior to engaging in sexual acts as a means of controlling the spread of the virus. While it should be everyone’s right to give their informed pre-coital consent, the fact of the matter is that HIV/AIDS is notably different from other STIs.

The word “stigma” does not convey the enormity of the discrimination faced by the HIV positive community. In many of these cases, a malicious intent to infect others is absent. Rather, the failure to disclose may stem from the harsh and overwhelmingly negative reactions of prospective sexual partners. No other disease carries with it the court-sanctioned notion that one’s bodily fluids are tantamount to a biohazard.

By criminalizing non-disclosure, we’re not addressing the problem effectively. Instead, we’re magnifying the stigma associated with the disease. This provides further impetus to keep quiet about one’s status to avoid facing the wrath of the public fear of this disease.

The means used to compel people to disclose affirms the very biases that make people reluctant to disclose in the first place. Worse still, the criminalization of non-disclosure provides a strong incentive not to be tested, which only serves to perpetuate the spread of the virus.

While there certainly exist situations in which criminal sanctions would be justified, the issue of non-disclosure is by and large a public health problem. These individuals demand a more nuanced approach that fully reflects the realities of each specific case. 
As Mabior and D.C. head together to the Supreme Court in the coming months, the Ontario Attorney General is seeking intervener status to remove the “significant risk” element in the Cuerrier test. These appellants would obviously argue that their viral loads at the time of the sexual encounters were low enough to no longer pose a “significant risk.” The attorney general would have the court rule, however, that the proper solution to this debate over the “significant risk” threshold is to have no threshold at all.

Removing the significant risk element of the test would more or less render it meaningless, and would essentially convict HIV positive persons for simply failing to disclose their status, and not for actually posing a significant risk of harm.
Not only would the removal of a “significant risk” make it far easier to prosecute cases of non-disclosure, it would exacerbate the aforementioned problems associated with criminalization itself.  Although this may seem far-fetched, there have been charges laid for exposure to herpes. If the significant risk standard is done away with, it would be one less bar to the “policing” of what is really a public health issue.
When the Supreme Court revisits this issue, I am hopeful that they will address the uncertainty and unfairness associated with the current test, but also question whether the criminalization of non-disclosure is truly an effective step towards controlling the spread of HIV.

- Abella J. in R. v. O’Brien

The trial judge’s reasons show that he was alive to the concerns raised by inappropriate aspects of the trial, and took them into account in his careful and detailed reasons.

- McLachlin C.J. in R. v. E.M.W.

The month of June has seen not one but two important statements from the Supreme Court of Canada on criminal procedure and evidence. In R. v. O’Brien, the majority of the Supreme Court, led by Abella J., seemed inclined to take a trial judge’s words at face value. If the trial judge asserts that his decision was based “entirely” on DNA evidence, then any error in law could only be harmless and could not constitute a substantial wrong or miscarriage of justice. One week later, the majority of the Court in R. v. E.M.W. adds another wrinkle: even if the trial judge did not directly address the inappropriate aspects of the trial, it may be inferred from his reasoning that he did in fact give them appropriate weight (“alive to the concerns”).

Put together, the logic behind these two statements from our top court is confounding. Unraveling the logic, these two cases, particularly the more recent case of R. v. E.M.W., reveal a growing uncertainty about judicial decision-making at the lower court levels.

A Divided Appellate Court:

E.M.W. was convicted of sexually assaulting his young daughter after he stood trial before a judge alone. The defendant subsequently appealed the decision. At the Court of Appeal, the majority allowed the appeal from conviction and ordered a new trial for the reason that a miscarriage of justice had taken place. The dissenting judge, Fichaud J.A., argued that a miscarriage of justice could not be established. Even if it could be established, the majority had failed to raise the grounds for it in the Notice of Appeal.

Against the Current: Fish J.’s Dissent in R. v. E.M.W.

Usually, when a case has been backed by a majority decision from the Court of Appeal, the Supreme Court returns a unanimous decision. In the case of R. v. E.M.W. decided last week, the Court ended up with a very uncommon 6-1 split. Fish J. was the sole voice of dissent. His message? The issues in this case notuncontroversial.

(Interestingly, Fish J. abstained from the decision in R. v. O’Brien while LeBel J. abstained from this decision. One could imagine that those two more liberal-leaning justices would have sided with each other. Binnie J., in contrast, dissented in the earlier case of R. v. O’Brien but agreed with the majority inR. v. E.M.W.)

While McLachlin C.J., writing for the majority of the Court, teases out three main issues in the case – jurisdiction, evidence and trial procedure – Fish J. focuses solely on the last issue. In his dissent, Fish J. takes issue with how the trial judge conducted the court. “I have concluded that the respondent’s trial was unsatisfactory ― notably because of the inappropriate and prejudicial cross-examinations of the respondent and N.L., the complainant’s grandmother, who was an important defence witness.” At this point, Fish J. does not necessarily deviate too far from his colleagues on the Court. The majority of the Court acknowledges that errors were made during the initial proceeding and that, as a whole, “the trial was far from perfect.” Fish, however, refuses to buy into the majority’s reasoning that, if the trial judge’s understanding of the evidence as a whole and the proceeding overall were sound, then these errors could not have given rise to a miscarriage of justice. Rather, Fish assertively states at the end that, “I recognize that the trial judge delivered detailed and thoughtful reasons for concluding as he did… In my respectful view, however, they cannot set right the unsatisfactory nature of the trial.”

Fish Out of Water?

While Fish does not concern himself with the issues of jurisdiction and evidence, these issues remain contentious in R. v. E.M.W. The majority of the Court first turns to the issue raised by Fichaud J.A. – did the Court of Appeal even have jurisdiction to hear the issue of the miscarriage of justice?

a. Jurisdiction

Here, the Court seems very comfortable granting additional discretion to the lower courts. Summarizing their position, McLachlin states that, “We agree with the respondent that the failure to expressly raise miscarriage of justice as a distinct ground of appeal does not deprive a Court of Appeal of jurisdiction to consider that issue.  A potential miscarriage of justice is always something a court must be able to consider [italics added].”

This position adopted by McLachlin seems sensible, granting an appropriate degree of discretion to the Court of Appeal to ensure that technicalities do not get in the way of a fair and full hearing. As well, it is very sensible for McLachlin to note that it is part and parcel of good practice to grant an adjournment in cases where the court wishes to explore an issue that has not yet been raised.

b. Improper Use of Evidence

At this point, the majority of the Court sets their sights on the trial judge. One of the reasons why the Court of Appeal set aside the conviction and ordered a new trial is that they deemed the trial judge to have improperly used evidence. The defendant had made statements to a friend and the police prior to testifying at trial. These statements were brought up or at least alluded to during the trial, so as to give an unfair advantage to the prosecution. The Supreme Court’s position on this issue seems to be somewhat controversial: “In our view, the majority of the Court of Appeal was wrong to seize on the trial judge’s reference to the content of the complainant’s disclosures to show that he had improperly used the evidence about these disclosures. The trial judge’s careful and thorough reasons when read as a whole in light of the trial record do not support the inference drawn by the majority of the Court of Appeal.”

McLachlin C.J. appears to be putting forth the argument that the Court of Appeal was making too big of a deal of the fact that the trial judge had referred to evidence that was not properly gathered (“it was wrong to seize on…”). The majority of the Court opts to not directly challenge the Court of Appeal as to whether these references constitute an improper use of evidence in and of themselves. Taken within the context of the rest of the trial judge’s carefully reasoned decision – taken “as a whole” in the words of the Court – these references do not constitute an improper use of evidence, however.

c. Miscarriage of justice

It is the issue of miscarriage of justice that forces Fish to separate himself from the crowd. Both he and the majority of the Court agree that the trial, in one way or another, was unsatisfactory. They point to different reasons, however: McLachlin points to “tasteless” and “unsavory” questions that were asked or statements that were made and the “unnecessary” soliloquizing on personal matters by the Crown counsel; Fish, on the other hand, is dissatisfied with the “inappropriate and prejudicial cross-examinations of the respondent and N.L., the complainant’s grandmother, who was an important defence witness.” McLachlin does not refute that the trial was conducted inadequately. Rather, she and most of her colleagues have read those inadequacies into the trial judge’s decision: “The trial judge’s reasons show that he was alive to the concerns raised by inappropriate aspects of the trial, and took them into account in his careful and detailed reasons.” For that reason, “the shortcomings of the trial… did not, in this case, result in a miscarriage of justice.” The majority of the bench Court insists that the trial judge had mitigated the potential miscarriage of justice, as they found the judge to have implicitly acknowledged it in his well thought out decision.

R. v. O’Brien and R. v. E.M.W.: Two Sides of the Same Coin?

Regarding the implicit acknowledgment of the potential miscarriage of justice, Fish J. rightly questions whether the Court is giving the trial judge too much credit in R. v. E.M.W. Thus, R. v. O’Brien is really a different side of the same coin. LeBel J. and Binnie J. question if the Court is giving the trial judge too much credit when he is taken at his word completely. Just because the trial judge states that his conclusion arose out of admissible evidence does not mean that the inadmissible evidence, character evidence, for example, played no part in shaping the judge’s conclusion and, thus, should be allowed.

The Backdrop

The complainant, S.A., and her husband, the accused, J.A.A., had agreed to separate in May 2007 but continued to live together in the matrimonial home.  S.A. testified that on June 8, 2007, J.A.A. sexually assaulted her repeatedly while threatening her with a knife.  At one point J.A.A.’s hand was over her mouth and S.A. bit him “as hard as she could.”  Immediately after the incident, S.A. drove to a friend’s home and called the police.  A police officer testified that he had noticed a cut that looked like a “bite mark” on one of J.A.A.’s fingers.  On cross-examination, the officer conceded that he was not an expert in this area, but the defence did not offer any expert testimony that contradicted the officer’s evidence.  J.A.A. testified and insisted that the sexual intercourse was consensual.

In convicting J.A.A., the trial judge stated that both testimonies were credible but that other evidence, including the bite mark and the knife found in the home, corroborated S.A.’s story.  Before the Ontario Court of Appeal, J.A.A. sought to introduce fresh evidence from Dr. Wood, a forensic scientist, under s. 683(1)(d) of the Criminal Code.  The section states:

683. (1) For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice,

….

(d) receive the evidence, if tendered, of any witness, including the appellant, who is a competent but not compellable witness

Dr. Wood would have testified that the mark on J.A.A.’s finger was not a bite mark.  The majority of the Court of Appeal found that the new evidence would not have affected the result of the conviction and dismissed the appeal.  It further emphasized the importance of introducing such evidence at trial and found that the defence had not fulfilled its due diligence.

Court says Dr. Wood should have his say

The SCC’s analysis rested on four criteria laid out in its decision in Palmer v. The Queen, [1980] 1 S.C.R. 759.  In that case, the accused were charged with conspiring to traffic in heroin.  A key Crown witness, whose testimony had been heavily relied upon by the trial judge, later declared several times that his trial evidence had been completely fabricated.  The Palmers sought to introduce this new evidence.  The SCC dismissed their appeal, agreeing with the B.C. Court of Appeal that the witness’ subsequent statements were entirely unreliable.  In doing so, the Court was called to flesh out on the meaning of “the interests of justice” in, what is now, s. 683.  The Court introduced four principles to consider:

1. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial;
2. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
3. The evidence must be credible in the sense that it is reasonably capable of belief; and
4. It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

In J.A.A.’s case, the issues centred on criteria (1) and (4), as the Crown had already conceded that criteria (2) and (3) had been met.

The majority, led by Justice Charron, found that the defence had not met the due diligence criterion, but essentially agreed to excuse this, given that the Crown, too, had not introduced expert evidence regarding the bite mark.  Rather, Justice Charron focused on the fourth criterion, setting up the trial judge’s decision as a “close call” between the competing testimonies of S.A. and J.A.A., with the presence of singular pieces of corroborative evidence, such as the bite mark, pushing the judge over the line beyond any reasonable doubt.  She maintained that Dr. Wood’s evidence would not merely remove a piece of corroborative evidence but could undermine the credibility of S.A.’s testimony and the segment about having bitten J.A.A. in particular.  This was sufficient to reasonably expect that Dr. Wood’s evidence would affect J.A.A.’s verdict.

Justice Rothstein, who wrote the reasons for the dissent, agreed with the majority of the Court of Appeal.  First, falling short of due diligence would not trump the other Palmer principles, but it could also not be ignored; the dissent emphasized that it played “an important role in the administration of justice.”  Justice Rothstein further asserted that it was unreasonable to expect that Dr. Wood’s evidence would change the result of the case.  In his opinion, the bite mark was only a “minor issue” in the trial judge’s decision, and S.A.’s version of the events had already been corroborated by ample evidence, including her post-event demeanour, the condition of the home and the presence of the knife, and the logic and consistency of S.A.’s testimony.

SCC decides to err on the side of caution

This judgment boiled down to the “he said, she said” scenario of many sexual assault cases, which meant that corroborative evidence was critical to the verdict.  This was particularly important here, where the trial judge found both the testimonies of S.A. and J.A.A. to be credible.  In his dissent, Justice Rothstein suggested that by allowing the new evidence, the majority’s decision really reflected a leaning towards diminishing the weight of evidence given by a sexual assault complainant in favour of evidence offered by a third party expert.  He is probably right.  At the same time, it is easy to be sympathetic with the majority and to want to err on the side of caution.  The trial judge’s verdict appeared to be a narrow call, and Dr. Wood’s evidence had the potential to contradict S.A.’s testimony.  It is also important to recall that the threshold for a conviction is exceptionally high.  All it takes to reverse it is one reasonable doubt.  And Dr. Wood might have been sitting on just that one.

But even though HIV was always a part of the conversation, I frankly felt a bit removed from it. By the early 2000s, being diagnosed with HIV no longer carried the death sentence it once had. It wasn’t until a short stint as a volunteer at a hospice for individuals living with HIV/AIDS that really brought it home for me, far more than any condom-on-banana demonstration or poorly-conceived National Film Board-funded PSA ever could.

I had the opportunity to meet people who were receiving palliative care, and understand how HIV/AIDS had radically transformed their lives. I also met some volunteers who were HIV positive. Their stories were very different, but many of their struggles were the same. Some had been misled by lovers who had failed to disclose their HIV positive status, or simply hadn’t been tested for the disease. Others acknowledged that they had made reckless choices in the throes of addiction.

It’s true, being diagnosed with HIV is no longer a death sentence. Thanks to medical advances, HIV positive Canadians are able to live long, healthy lives. But there is also no question that HIV can radically change the course of one’s lives, and HIV positive people still deal with many inequities in their day-to-day lives.

These experiences I’ve had make reading cases like R. v. Mabior (C.L.), 2010 MBCA 93, a truly difficult experience.  The facts of the case are horrifying: the accused was appealing a conviction on six counts of aggravated sexual assault and on one count each of invitation to sexual touching and sexual interference.

The accused, who was HIV positive, engaged in sexual relations with the six complainants, one of whom was only 12 years old at the time.

However, beyond the gruesome details, what makes cases like these particularly difficult to read is the application of R. v. Cuerrier, [1998] 2 S.C.R. 371, a Supreme Court of Canada decision that held that an accused’s failure to disclose their HIV-positive status, where it would create a “significant risk of serious bodily harm to the complainant.” Is fraud and can vitiate sexual consent.

There is no question that many of the accused’s actions could be considered objectively abhorrent. However, the Cuerrier precedent has long been criticized for its effect and impact, and Mabior offers a particularly acute example of how difficult the case is to apply and the remarkable effect that it has on all HIV related cases.

Facts and Issues

The accused in Mabior was convicted on six counts of aggravated sexual assault, and two additional counts of sexual touching and interference. The accused had sex with six women between February 2004 and December 2005, and although he knew that he was HIV positive, he did not disclose his status to his sexual partners. The accused was counseled on the importance of engaging in safe sex, and informing his sexual partners of his current status. Additionally, the complainants indicated that they would not have consented to their sexual encounters with the accused if they had known that he was HIV positive.

The facts are quite similar to those in Cuerrier itself, where the accused was charged with two counts of aggravated assault after engaging in unprotected sexual relations with two complainants, and failing to inform them of his HIV positive status. Although neither complainant tested positive following their sexual encounters with the accused, the non-disclosure was found to have created a significant risk of serious bodily harm, and the fraud negated sexual consent.

However, the primary issue in this case before the Manitoba Court of Appeal was whether the trial judge had erred in her application of the test of “significant risk of serious bodily” harm to the facts. Specifically, the accused had used condoms with some of his partners, and he had a very low viral load, an important factor indicating a relatively low risk of getting sick through a viral infection. Through the use of antiretroviral therapy, the accused’s viral load was significantly reduced, and the Court was left with the question of whether this reduced ability to transmit HIV through unprotected sex would still meet the legal test required.

Madame Justice Steel stated the issue in these terms:

The law with respect to aggravated sexual assault and the transmission of HIV, as developed by the Supreme Court of Canada in Cuerrier, attaches criminal liability to the failure to disclose one’s positive HIV status only when there is a “significant risk of serious bodily harm.”  That determination will vary depending on the scientific and medical evidence adduced in each particular case.  In this case, the scientific evidence indicated that either the careful use of a condom or effective antiretroviral therapy which reduced viral loads to an undetectable level could potentially reduce the level of risk to below the legal test of “significant risk.”

At the end of the day, Steel J. concluded that the trial judge had erred, and allowed the accused’s appeal on four counts. However, the evidentiary considerations in this case illustrate why Cuerrier is a difficult precedent to apply.

A Modern Day Scarlet Letter: Life After Cuerrier

There have been many policy arguments made against the Cuerrier precedent, and the fact that it effectively criminalizes non-disclosure of an HIV positive status. TheCourt.ca’s Daniel Del Gobbo covered the issue extensively (here and here) in the wake of the conviction of Johnson Aziga, the first person in Canada to be convicted of first degree murder for non-disclosure.

Principally, the argument against Cuerrier is that it is a judicial response to what is a public health issue. Concerns have also been raised about the impact of the case and whether it may in fact deter individuals from getting tested. Additionally, questions have been raised about whether Cuerrier adds to the stigma faced by people living with HIV.

However, the Mabior case is illustrative of another failing of the Cuerrier precedent; despite the decision being only 12 years old, significant advancements have been made in the treatment of the virus. In addition, with the greater awareness of safe sex practices and the proliferation of condoms and other forms of sexual protection, the overall risk of transmission has been significantly reduced.

These medical advances have added further confusion to the already-murky standard of what qualifies as “significant risk” in this context. All of the parties (including the Canadian HIV/AIDS Legal Network, which intervened in the case) agreed that “individuals who intentionally or recklessly infect their partners with a serious disease” should be charged, and that disclosure is necessary. However, short of this scenario, probably close to the extreme edge of culpability, courts are left with a significant grey area when determining what does and does not attract criminal liability.

The Crown in Mabior argued that the use of condoms and the use of medication did not negate the significant risk in this case. Alternatively, they also argued that, on the issue of condoms, there was “no evidence on which to base a finding that condoms were properly used and therefore no basis for a finding that they effectively reduced the risk of transmission in this case.” The trial judge concluded that both low viral loads and the consistent use of condoms were required to fall below the threshold of “significant risk.” The Court of Appeal reached a very different conclusion, as noted above. This legal wrangling shows that there is no clear legal standard here.

An example of this ambiguity can be found in Steel J.A.’s judgment, where she considers the trial judge’s reliance on the 80 per cent effectiveness rate of condoms:

Although the trial judge quoted the medical evidence of an 80 per cent reduction in risk, she did not go on to consider an 80 per cent reduction “from what.”  A substantial reduction of an already small number may not necessarily result in a significant risk.  As a foundational building block to the legal question of whether a significant risk remains where there is condom use or reduced viral loads, one must first have a baseline of the rate of transmission of HIV in unprotected intercourse.

The court then goes on to find some kind of baseline to hold the accused to, in order to make a determination on significant risk. But this is one of the biggest unresolved questions coming out of Cuerrier. What, exactly, qualifies as a significant risk? The trial judge in this instance seems  to have taken the position that virtually any risk is a significant risk, whereas the Court of Appeal’s reasoning falls more into line with current medical opinion regarding HIV transmission and antiretroviral therapy.

More generally, use of condoms is or is not a failsafe defence to these charges. Steel J.A. notes that “several Canadian cases have expressly or implicitly accepted that the Crown must establish unprotected anal or vaginal sex in order to reach the threshold of a significant risk triggering a duty to disclose.” In Cuerrier, Cory J. (writing for the majority) only suggested that careful use of condoms might reduce the risk of transmission. Once again, it was left as something that would have to be determined on the facts and evidence adduced, but there is no clearly articulated standard that is easily applicable.

Even if condoms are used, the usage gives rise to a whole other subset of issues regarding proper use. Many of those issues were present in this case. Were the condoms properly stored? Were they expired? Were they properly applied? Were they applied by the accused or the complainant? (Does it matter?) What effect does intoxication have on the proper use of condoms?

Similar questions also exist about viral loads. While antiretroviral therapy and low viral loads may mean that there is a significantly reduced risk of transmission, there are a range of other issues that can cause spikes in viral loads.

Steel J.A. makes reference to this evidentiary quagmire in her conclusion:

At the very least, issues of condom usage and viral load raise difficulties of proof perhaps not contemplated or even known when the Supreme Court developed the test in Cuerrier.  The scientific evidence provides only general propositions or benchmarks, whereas judicial determination of individual cases is, of necessity, fact-specific.  It is the Crown’s obligation to prove its case beyond a reasonable doubt.  To achieve the goal of careful and consistent condom use, as described by Dr. Smith, involves a complex series of steps.  The inquiry as to whether there was careful and consistent use of a condom in a particular instance of sexual activity is likely to be an unrealistic endeavour given that the sexual acts at issue will often have occurred some time ago, in conjunction with the use of drugs and/or alcohol, and the participants may be young and unaware of how to properly use a condom….

Again, with respect to viral loads, the ability to show that an accused had a common infection or an STD at the time of sex that might have led to a spike in the viral load may very well prove elusive.  In light of these concerns and the developments in the science, the Supreme Court may wish to consider revisiting the test in Cuerrier to provide all parties with more certainty.

Overall, I agree with Steel J.A.’s assessment and her ultimate conclusion. There are significant policy reasons to revisit Cuerrier – namely, is it really the appropriate way to handle this public health issue, and is the duty to disclose fair? (TheCourt’s Daniel Del Gobbo has previously argued – quite persuasively – that there should be a “duty to enquire” on the part of the complainant.)

However, as Mabior indicates, there are more practical reasons to revisit the precedent created by Cuerrier. While well-intentioned, the decision has failed to keep pace with the current reality of HIV/AIDS. Since being convicted of aggravated assault can lead to a hefty prison sentence, further refinements are needed.

The court will hear the story that a victim thought she’d never have the chance to tell.

It involves a 25-year-old sexual assault charge, a priest who plead guilty to the criminal charges and is now serving time for them, and a woman who felt she did not know the true extent of her injuries until she sought therapy for emotional problems many years later.

The main issue before the court was at what point the prescriptive period (known under the common law system as a statute of limitations) began to run. The general civil period of prescription in Quebec is three years from the date of impugned action.

Christensen did not file a civil claim for redress until 2006, 25 years after the assaults took place. The respondents (the Church) filed motions to dismiss the action on the ground that it was prescribed; the Quebec Superior Court granted their motions and dismissed the action. A majority of the Court of Appeal affirmed the judgment.

The Facts

During her childhood, the appellant attended the Sacred Heart parish in Quebec City. In 1979, when she was six, she met the respondent – the parish priest, Paul-Henri Lachance. Apparently in search of a father figure, she visited Lachance in his office at the rectory up to once a week, and he became her friend and confidant.

At some point in the first year of their relationship, the priest began to touch the young girl inappropriately. He would kneel before her and the touching lasted several minutes each time. During that period, the appellant’s mother sought the help of a child psychiatrist for behavioral problems. This went on for two years.

At some point in 1981, the priest moved to more aggressive sexual conduct by taking the appellant to his bedroom, removing her clothes and assaulting her further. The appellant rushed home immediately after this incident to tell her mother what happened, which leads to them visiting the rectory. Rev. Lachance is absent, but they speak with another priest, who recommends they visit the Roman Catholic Archbishop of Quebec. They are received by representatives of the respondent Archbishop, who tells the family that the diocese will handle the case, and not to disclose any of the events to the police or the public. The Archbishop assigns Lachance to another parish.

The appellant’s teenage years and later life are marred by problems with her self-esteem and sexuality.  She experiences panic attacks from sexual contact, and consults a psychologist. One day, when she was helping her husband’s six-year-old daughter from another marriage in the bathroom, she became overwhelmed with her daughter’s vulnerability at such a tender age. Angered, she finally defies the advice of the parish and files a complaint against Lachance for indecent assault against a female person. He pled guilty to the offense.

A year later, the appellant took steps to institute an action in tort against the respondents.

The Trial Judgment

At trial, the judge explained the principles that govern the consideration to dismiss a motion barred through extinctive prescription.  Citing the Supreme Court’s decision in Gauthier v. Beaumont, the trial judge held that if the appellant was unable to act because of fear, that psychological state of fear must have been caused by the defendant’s action, and must persist during the entire period the defendant did not act. He concluded that the facts did not support impossibility to action on part of the plaintiff, and found the action had been barred since 1983, three years after the final incident of indecent touching.

The Appeal

A majority of the Court of Appeal affirmed the judgment of the Superior Court, but for different reasons.

The appellant was not unable to be represented by others, argues the judgment. There is nothing in the record to indicate that the appellant’s mother was barred from action simply because the Diocese asked her not to go to the police.

Furthermore, the Court of Appeal argued, the appellant confused the starting point of prescription with the suspension of the limitation. Prescription may be suspended when the victim is unable to make the causal link between her injuries and the fault of the person who injured her.

The decision said that given that the existence of the parents’ knowledge about the priest’s actions and their daughter’s subsequent psychological impairment, the parents make a conscientious choice not to challenge ecclesiastical authority and not to pursue a civil remedy.

The Dissent (Endorsed in the SCC’s Ruling)

Chamberland J.A. did not agree with his colleagues, and his dissenting judgment formed the basis of the Supreme Court’s decision.

Although the appellant’s parents knew about the harm, and chose to remain silent, Chamberland JA maintained the most important aspect of this case was not whether the prescriptive limitation could be suspended, but rather when it should be said to begin running.

He cited the SCC’s decision in M(K) v. M(H) (an incest case)  where Justice La Forest argued that in order for a limitation period to begin to run, it is necessary that the plaintiff be aware of his injuries and their probable causes.

In this case, the appellant argues she became aware of the magnitude of what happened when she was 6-8 years old, and its potential connection to persistent psychological injuries, during the summer of 2006 when she sought therapy.

On these facts, the cause of action had not crystallized until the summer of 2006. The action is therefore not barred by extinctive prescription.

Moreover, Chamerland J.A. advised caution in the dismissal of claims held to be stale in Quebec, which has the shortest statute of limitations period for civil claims in Canada.

Victim’s rights groups assert that Quebec’s three-year rule is grossly unfair. While a statute of limitations is needed to reduce the uncertainty on potential defendants,  some argue that three years is not long enough for victims of assault to fairly assess the psychological damage that has been done to them. Without opening the doors to a flood of potential litigants, the court can, and hopefully will, do better in delivering justice for these vulnerable people.

In December 2004, the appellant Vincent Leering, a chiropractor, commenced an intimate relationship with a woman. They began to co-habit in March 2005. In April 2005, this girlfriend of his sought chiropractic treatment from Leering. Leering had her sign an informed consent to treatment form, opened up a patient file for her, and filled out a patient entrance form. Between April and October 2005, Leering provided her with treatment on 28 occasions, both at home and at the clinic. Because she had insurance coverage for these treatments, Leering billed his girlfriend.

In October 2005 the couple broke up. Treatments ceased. Leering sent a bill for the approximately $600 balance owing. When she did not pay, he referred the account to a collection agency. The ex then complained to the College of Chiropractors of Ontario about (only) the bill. Alerted to the existence of a possible professional-patient sexual relationship, the College brought Leering before its Discipline Committee, which found that Leering had committed sexual abuse of a patient within the meaning of the Health Professons Procedural Code, being Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, and revoked his certificate of registration for a period of 5 years.

The operative provisions of the Code are:

Sexual abuse of a patient

1(3)  In this Code,

“sexual abuse” of a patient by a member means,

(a) sexual intercourse or other forms of physical sexual relations between the member and the patient, …

Professional misconduct

51(1)  A panel shall find that a member has committed an act of professional misconduct if,

(b.1) the member has sexually abused a patient; …

Orders relating to sexual abuse

51(5)  If a panel finds a member has committed an act of professional misconduct by sexually abusing a patient, the panel shall do the following in addition to anything else the panel may do under subsection (2):

1. Reprimand the member.
2. Revoke the member’s certificate of registration if the sexual abuse consisted of, or included, any of the following, …

i. sexual intercourse, …

Applications for reinstatement

72(1)  A person whose certificate of registration has been revoked or suspended as a result of disciplinary or incapacity proceedings may apply in writing to the Registrar to have a new certificate issued or the suspension removed.

Time of application, sexual abuse cases

72(3)  An application under subsection (1), in relation to a revocation for sexual abuse of a patient, shall not be made earlier than,

(a) five years after the date on which the certificate of registration was revoked;

[My underlining.]

The combined effect of these provisions is a harsh, zero-tolerance, mandatory penalty aimed at fighting exploitation by health professionals of the purported vulnerability and power imbalance that exists between them and their patients by virtue of their position: if a health professional has sex with a patient, then they are barred from practicing for 5 years. Because of this, “courts”, as Feldman J.A. for the unanimous Ontario Court of Appeal wrote, “have struggled with the application of the section in circumstances that may appear not to fit the ordinary understanding of sexual abuse, such as where the patient is a spouse or in an intimate partnership with the health care professional.”

Before the Discipline Committee (whose decision the Court of Appeal affirmed in this appeal), Leering argued that because the sexual relationship began before the complainant became the respondent’s patient, the zero tolerance/mandatory revocation policy should not apply; that other chiropractors and health care professionals were treating spouses or partners and not being disciplined; and, that because he was in an intimate relationship with the complainant before she became his patient, this was not a situation where she was vulnerable as a patient, nor was there a power imbalance between them in the circumstances. The Committee rejected all of these arguments.

In regards to the aforementioned “struggle[] with the application of the section in circumstances that may appear not to fit the ordinary understanding of sexual abuse”, courts have responded to the reasonably perceived egregiousness of deeming there to be sexual abuse in the case of subsequent treatment of a spouse/lover by tinkering with the definition of “patient”. Then J. for the Divisional Court in Mussani v. College of Physicians and Surgeons of Ontario, [2003] O.J. No. 1956, wrote:

152     … “Patient” is not defined in the RHPA. This means that Discipline Committees and the courts must interpret the meaning of “patient” in the context of determining whether sexual activity occurred in the professional-patient relationship. It seems highly unlikely that tribunals or courts would interpret this term as including a physician’s spouse. …

153     Interpreting “patient” for the purposes of s. 51(5)2 of the Code as including a spouse would be an unreasonable interpretation of the legislation. … It is far-fetched to characterize the intimate relationship between spouses as “sexual abuse” simply because a physician may have treated his or her spouse.

At the Ontario Court of Appeal ([2004] O.J. No. 5176), Blair J.A. introduced the concept of “incidental medical care”:

102     I agree with the conclusion of [the court below.] … The fact that during the course of a marriage a physician may provide incidental medical care to his or her spouse is unlikely, in my view, to establish a physician/patient relationship which would attract the discipline procedures of the Code.

The case of Rosenberg v. College of Physicians and Surgeons of Ontario (2006), 275 D.L.R. (4th) 275, refined the law further by stating that “the question is not to be approached on the basis of any categorical exclusion of spouses, but on the basis of whether or not a physician-patient relationship has been established, recognizing that it is unlikely that a physician-patient relationship will be established between a physician and his or her spouse”. In Rosenberg the complainant had been a patient of the doctor for four years when they commenced a sexual relationship in 1992, prior to the enactment of zero-tolerance provisions, which took effect in 1994. By that time, they were living together and planned to marry. The doctor continued treating the complainant as a patient until 1998, when their personal relationship ended. The Committee found there to have been a physician-patient relationship and administered the penalty, which the reviewing court upheld. Here, the Committee followed that approach and found, based on the facts, that there had been professional-patient relationship between Leering and his girlfriend.

On judicial review, the Divisional Court ([2008] O.J. No. 4375) found the Committee’s decision to be unreasonable. The Court distinguished the cases of Mussani and Rosenberg from the present one on the basis it identified that the sexual relationship began before the doctor/patient relationship. While accepting that the girlfriend was a patient in the “clinical sense”, the Court found this not be determinative of whether there was sexual abuse in within the meaning of the Code. The Court held that “[t]he zero tolerance/mandatory revocation provisions were meant to target sexual activity that arises after a professional-patient relationship has been established” and that the “concern about abused of power by the professional and tainted consent does not arise where the sexual relationship existed prior to the giving of medical treatment”. The Court found unreasonable the Committee’s interpretation of “incidental” from “incidental medical care” as a question of frequency and regularity of treatment, where instead it should have asked “whether subsequent sexual activity arose out of the spousal relationship or out of the professional-patient relationship.”

The Court of Appeal, in overturning the Divisional Court and restoring the decision of the Committee, wrote:

37     With great respect to the Divisional Court, in proceeding to impose a further requirement in order to find sexual abuse beyond the concurrence of a chiropractor-patient and a sexual relationship, the Divisional Court erred in law. The disciplinary offence of sexual abuse is defined in the Code for the purpose of these proceedings as the concurrence of a sexual relationship and a healthcare professional-patient relationship. There is no further inquiry once those two factual determinations have been made. [My italics.]

As far as the concept of “incidental medical care” goes, the Court of Appeal held that the lower court misdirected itself in holding that in order to ultimately answer the question of whether medical treatment arose as result of or as an incident to the spousal relationship, the Committee would have to ask the question of whether sexual activity subsequent to a spousal relationship arose out of the spousal relationship or out of the professional-patient relationship; in the Court of Appeal’s view, this was an unfounded, erroneous conflation. Importantly, the Court of Appeal made the following finding of mixed law and fact as to the word “incidental”:

42     … Two examples of “incidental medical care” might be where a doctor and her spouse are in an accident and the doctor provides on the spot emergency care to her spouse, or a chiropractor’s spouse suffers a muscle spasm and the chiropractor performs a manipulation in order to provide immediate relief. It would be unreasonable for a spouse to be denied treatment in such circumstances.

43     The Divisional Court criticised the discipline committee for using the frequency of treatment as an indication of whether the treatment was “incidental”. Although the word “incidental” is not defined in terms of the frequency of what may occur, where medical treatment is provided on a regular basis by appointment in office, and where payment is expected, it is most unlikely that such treatment would be considered “incidental”.

The Court of Appeal would thus draw the line between patienthood and non-patienthood at the “clinical” and the regular, while the Divisional Court would draw it precisely where the spousal relationship subsists. I would think the former to be correct, to be more, if not entirely, true to the plain meaning of “patient”. But then it is not so certain. Is it not the argument that these “clinical” factors are mere formalities in the face of the spousal relationship, and that, looking at the problem more deeply, the harm that the Code seeks to combat simply and clearly is not there in spousal relationship context? And then there is, in my reading, the uncertainty lingering in the language of the jurisprudence, namely between “unlikely” (see quotes from Mussani and Rosenberg, above) and “incidental”, and in whether the latter word truly does supercede the former. This statutory divination is fraught with difficulties, with our ideas of statutorily “what is” often mixing up with “what should be”, as well as “what the legislature feels is” with “what we feel is”.

Instead of such judicial wrangling, the best solution for all would naturally be to amend the law. All of this, however, especially in light of the Court of Appeal’s overturning of what was really an errantly purposive ruling on the part of the Divisional Court, brings us to the point that, Leering v. College is a case that aptly demonstrates what has called the “garbage in, garbage out” job of the judiciary. With TheCourt.ca being a legal website, not a policy website, “joy”, “pleasure”, “approval”… experienced on the part of its commentators, such as yours truly, in the line of commentating, must only flow from and have to do with the fidelity that judges – the subjects of our critique – demonstrate to the law; and this includes fidelity to operationally idiotic laws such as the one at issue here, which, as the above use of quotation marks strives to convey, is in the end no cause for joy, pleasure, or approval at all. One wonders whether the unanimous Divisional Court was gripped with a compassionate concern in respect of the Committee’s ruling, as the often obvious misdirection of the Court’s judgment might suggest (” … the Discipline Committee was required to consider the purpose of the legislation … [The] concern about abuse of power by the professional and tainted consent does not arise where the sexual relationship existed prior to the giving of medical treatment.” – The purpose of the legislation is first and foremost reflected in its text, and it is that text, not a court, that is the authority on where and when said “concern” arises or not.). Ultimately it is for the the courts uphold the law, as we may consider the Court of Appeal to have done here, and decide as the law would have it: in this case, for the “transgression” of treating his lover’s back-aches… Dr. Leering is now deprived of his livelihood for half a decade.

The circumstances motivating this appeal fascinated the popular media, and have been subject to intense scrutiny since coming to light some seventeen years ago. The appellant Crown prosecutor was charged with improperly pursuing an ongoing investigation involving three young children (the R. siblings) who had made disclosures of abuse against their biological parents, respondent foster parents, and their respondent extended family. In addition to alleging that they were forced to commit various sexual acts, the children described their participation in a number of extraordinary satanic rituals, including the protracted sacrifice of animals, eating their eyeballs, and eventual drinking of human blood. After committing the respondents for trial on some seventy criminal charges, it became apparent to the appellant that at least one of the children had lied about keeping records of the alleged abuse.  The appellant grappled with whether to proceed despite concerns as to their credibility, but opted to forge ahead and ultimately secure convictions against the children’s parents (which, incidentally, were overturned by the Supreme Court of Canada some five years later in R. v. R. (D.), [1996] 2. S.C.R. 291).  The appellant was cautioned by the trial judge that the children should not be made to endure another criminal proceeding against the remaining accused, including the respondents; charges against them were soon stayed. Some years after the stay, the R. children recanted their allegations against the respondents in full, identifying an unhealthy dynamic between the siblings perpetuated by the oldest child who himself abused his younger sisters.

Shortly thereafter, the respondents commenced a civil suit against the appellant for malicious prosecution. Citing the incredible nature of the children’s testimony and lack of evidence corroborating the charges against them, the respondents submitted that, absent reasonable and probable grounds to proceed with the prosecution, the Court ought to presume that their prosecution by the appellant was motivated by an improper purpose inconsistent with the appellant’s role as a “minister of justice”.

Reaffirming and Clarifying the Requirements for Malicious Prosecution

Justice Charron’s ruling duly appreciates that the wrongly accused respondents were the victims of a miscarriage of justice, sullying their reputations in society and causing great emotional trauma. The stigma associated with such serious crimes as those with which the respondents were charged may still attach itself to accused persons well after they are exonerated. Such an unfortunate circumstance, however, does not bear on the legal question of whether a prosecutor was motivated by impropriety in carrying out a misdirected investigation. Indeed, in this case, Justice Charron for a unanimous court dismisses the respondents’ malicious prosecution suit on evidentiary grounds.

To have succeeded in the action, the plaintiffs were required to prove that the prosecution was: (1) initiated by the defendant; (2) terminated in favour of the plaintiff;  (3) undertaken without “reasonable and probable cause”; and, (4) motivated by malice or a primary purpose other than that of carrying the law into effect. This framework is well-established in the common law and reaffirmed in Justice Charron’s reasons. She explains that the burden on claimants to meet these requirements is an onerous one; perhaps rightly so, as the law is designed to balance the right of individual citizens to be free from groundless criminal proceedings and the public’s interest in the swift and independent prosecution of suspected wrongdoing. To disproportionately weigh the former would constrict the Crown’s prosecutorial discretion to initiate, continue, or terminate proceedings free from the influence of partisan concerns or excessive judicial meddling.

Justice Charron also provides much needed clarification of the requirement for “reasonable and probable cause” in the third inquiry. Courts should not be concerned, as the respondents submitted, with a prosecutor’s subjective belief in the accused’s guilt because the public nature of his or her office precludes militating personal views from informing or obscuring the pursuit of criminal justice. Reasonable and probable cause, rather, is driven by a prosecutor’s objective and professional assessment of the legal strength of each case.  “Belief in ‘probable’ guilt,” Justice Charron writes, “therefore means that the prosecutor believes, based on the existing state of circumstances, that proof beyond a reasonable doubt could be made out in a court of law.”

In such cases spanning many years, it can be difficult for judges to appraise reasonable and probable cause at the time of an impugned investigation without the benefit of hindsight. Despite early questions as to the credibility of the R. children’s allegations, there was no requirement in the early 1990s that the unsworn evidence of children must be corroborated in order to obtain a conviction. Indeed, the prevailing wisdom (now debunked) among child psychologists was that “children don’t lie” about abuse. Further, and perhaps most intuitively, several sophisticated persons including the trial judge and appellate judges evidently believed the children’s evidence to be credible at the time, or else they would not have reached their eventual conclusions. I agree with Justice Charron that it is perfectly proper to rely on judicial “bootstrapping” – arguing reasonable and probable cause to prosecute an accused existed in the first instance on the basis of antecedent judicial determinations – in circumstances such as these. Despite potentially seeming absurd in light of current understandings of psychology and greater experience trying child abuse cases, seventeen years ago it may not have seemed ridiculous for a Crown prosecutor to ground serious charges on the unsworn and uncorroborated evidence of children.

Finding the appellant’s prosecution was undertaken with just cause, the respondents’ malicious prosecution claim thus failed to pass the third hurdle; accordingly, Justice Charron need not have proceeded with the fourth, eponymous “malice” requirement of the tort. Very fortunately, however, she does clarify this area of law by recalling the principle from an earlier, equally compelling malicious prosecution case Nelles v. Ontario, [1989] 2 S.C.R. 170, concerning an attendant nurse at Toronto’s Sick Kids Hospital wrongly accused in a series of mysterious infant deaths. Nelles held that in order to prove malice, a plaintiff must bring evidence that the Crown initiated or continued the impugned prosecution based on an improper purpose inconsistent with his or her public duty.

Most relevant in this appeal, a prosecutor’s lack of subjective belief in an accused’s probable guilt is suggestive, although not determinative, of impropriety. It may very well be that the prosecutor’s lack of belief is attributable to inexperience, incompetence, negligence, or gross negligence (the latter of which may be actionable as an unintentional tort, but is not actionable as the intentional tort of malicious prosecution). Subjective belief is but one of the “totality of the circumstances” relating to a prosecutor’s state of mind upon his or her filing charges. Thus, Justice Charron finds that the plaintiff’s alleged lack of subjective belief, in the absence of additional evidence that he was motivated by fraudulent design, cannot be equated with malice and or displace the need for proof of an improper purpose.

Increasing the Intelligibility, if not the Accessibility, of the Tort

Justice Charron’s decision is, in my view, to be commended for its lucid explanation of the four elements of malicious prosecution and the rationale underpinning each. In particular, previous interpretations of the third (“reasonable and probable cause”) inquiry had often conflated the prosecutor’s objective, professional belief with his or her subjective belief. Assigning the latter to the fourth (“malice”) requirement both makes intuitive sense and decreases opportunities for confusion. The resulting framework is arguably more intelligible and easier for wrongfully accused persons to apply.

That being said, in this case greater intelligibility does not necessarily translate to greater accessibility. Even with Justice Charron’s tinkering, I fear the tort’s requirements remain unduly onerous and that it is still exceedingly difficult for wrongly accused claimants to earn remedies under them. Certainly under the old formulation, the evidentiary burden on claimants to bring forth positive indicators of malice was so high to be nearly impossible. My preliminary research suggests that since the Supreme Court eliminated Crown immunity from tort actions in Nelles some twenty years ago, there has yet to be a successful malicious prosecution suit in Ontario. I find this quite staggering: while I share Justice Charron’s view that Crown independence and prosecutorial discretion are absolutely fundamental to the integrity and efficiency of the criminal justice system, I am also convinced that a wrongly accused individual’s right to a viable tort remedy is equally fundamental. I reserve hope that a claimant’s ability under the new framework to adduce evidence of a prosecutor’s lack of subjective belief as part of the fourth (“malice”) requirement eases the burden in making a case; otherwise, there seems little use in continuing to provide a means for redress that is so prohibitively difficult to access.  Ultimately, rather than simply adding further gloss to the consituent elements of the existing tort, justice may be better served by reconceptualizing malicious prosecution altogether.

Last week, I broadly surveyed the benefits and detriments flowing from R. v. Cuerrier, [1998] 2. S.C.R. 371, the case enabling the Crown to prosecute sero-positive individuals who fail to disclose an HIV transmission risk. While Cuerrier’s “duty to disclose” does serve the social imperative that express misrepresentations of serostatus in the context of unprotected sexual relations are penalized and deterred, I argued that the duty is belied by its unilateral application.

Given the considerable vigour with which the Crown has enforced legal obligations on sero-positive partners only – already a questionably unethical practice in light of the duty’s effects of deterring STI testing and perpetuating discrimination of people with HIV/AIDS – I believe the courts are well suited to remedy these effects by imposing reciprocal obligations in the form of a “duty to enquire” on sero-negative partners.

The new duty to enquire would conceivably operate in parallel to the existing duty to disclose, with one’s failure to raise the issue of HIV resulting in a lessened degree of moral blameworthiness being assigned to the non-disclosing partner in some situations.

Cuerrier’s cursory evaluation of such an obligation, while sensitive to the dynamics present in many relationships preventing partners from taking ownership of their practices and “enquiring” about serostatus, ultimately fails to appreciate the breadth of productive consequences that would result from its application.

The Parallel Duty and its Recollection of “Mutual Responsibility” to Avoid Infection

While the Cuerrier majority acknowledges that all members of society should appreciate the risks of their sexual practices and take steps to reduce those risks, it rejects any imposition of reciprocal duties in relationships. “The responsibility cannot be lightly shifted,” it writes, “to unknowing members of society who are wooed, pursued, and encouraged by infected individuals to become their sexual partners.”

This brief pronouncement is the Supreme Court’s sole engagement with the potential imposition of an obligation to enquire about a sexual partner’s serostatus prior to engaging in unprotected intercourse. In my view, it affords sero-negative individuals little role in forming their own consent to assuming significant risks. And this is despite the duty to enquire not being an unreasonable expectation (for most individuals) in our current social climate. Rather, in contravention of more balanced policies of “mutual responsibility” in relationships emerging in the mid-1990s, Cuerrier seems to flout the rapid “broadening of the arena of private space through the construction of sexualized communities, where the possibilities of safer sexual behaviour can be easily discussed.”

In practice, this translates to an observable change in relationship dynamics: sexual etiquette is more often relaxed, so as to allow – and ideally, invite – consideration of health issues and the development of safer sex strategies between partners before they engage in unprotected intercourse. Through such consultation, individuals cannot so much as eliminate possible risk of coming into contact with HIV, but may seek a balance between risk and trust through the pragmatic adoption of barrier methods.

Promoting “mutual responsibility” in relationships by way of a duty to enquire reflects the growing empowerment of all persons to take ownership of their sexual practices. Such empowerment is implied in the Cuerrier decision itself, insofar as it requires the Crown to prove that a sero-negative person would not have consented to unprotected intercourse had he or she been aware of the significant risk. Logically, if that person’s hypothetical lack of consent upon disclosure of serostatus can be established, implying sufficient agency to influence the interpersonal exchange, why not exercise that agency to make an enquiry in the first place?

Redressing Problems of Deterred Testing and Discrimination against People with HIV

Further, as explained in last week’s post, a number of the unilateral duty’s incidental consequences run contrary to public health objectives, including its deterrent effects on sero-positive individuals seeking treatment. I believe that a legal mandate to encourage reciprocal responsibilities in relationships would create an additional incentive for at risk individuals to get tested, as their sero-negative partners’ may make enquiries before unprotected intercourse proceeds. This would create opportunities for discussion of safer sex strategies, helping to unburrow those wilfully blind to the fact that they may be HIV-positive from the underground.

Also, the imposition of a parallel duty would help stave off the systemic discrimination of people with HIV/AIDS, perpetuated in part by the courts which implicitly hold sero-positive individuals entirely responsible for the transmission of infection. The duty would require that both sero-positive and sero-negative partners assume such responsibility, helping to dispel notions that the disease (and, by extension, sero-positive persons themselves) are being criminalized. Further, it would popularize a more positive engagement with sexual health issues across various groups, spurring consideration of educational materials that rebut discriminatory notions with inclusive messages.

Distinguishing Express Misrepresentation from Omitted Disclosure of Serostatus

Appreciating these productive effects of mandating reciprocal responsibilities in sexual relations, I should clarify that imposing a “duty to enquire” would not be appropriate in all situations.

Specifically, Cuerrier fails to distinguish situations of blatant deceit by express misrepresentation, in which sexual partners do make an enquiry as to serostatus only to be fed reassuring falsehoods inducing their consent, and situations of an omission, in which partners do not make an enquiry as to serostatus and are not offered information either way, with assumptions of sero-negative status inducing their consent. With such grave consequences flowing from HIV transmission, the majority finds that similar degrees of blameworthiness attach to both scenarios, despite the active and passive role, respectively, assumed by sero-negative partners in dictating the conduct of their sero-positive partners.

McLachlin J. (as she then was) registers objection to this equation of the scenarios, criticizing the majority’s approach for omitting the requirement that fraud must induce consent. She finds that for a sero-negative partner not to make an enquiry is tantamount to creating the “significant risk of serious harm” being alleged.  In other words, since the sero-negative partner (acting prudently) should assume that everyone is sero-positive, he or she voluntarily assumes a significant risk by not soliciting mutual disclosure. In McLachlin J.’s model, the non-disclosing partner does not induce consent to sex because the sero-negative partner need not be induced at all – already, he or she has implicitly consented.

My primary justification for imposing a parallel duty to enquire, operating in tandem with the duty to disclose, recalls McLachlin J.’s criticism in its appreciation of our evolved social climate, in which both partners in relationships are perceived to have reciprocal responsibilities with respect to sexual health. In no way to derogate from the moral reprehensibility of express misrepresentations as to serostatus, the “blame” for transmission in situations of omitted disclosure can no longer be directed at sero-positive persons alone. For the courts to acknowledge that fact would also be to assume a less paternalistic tone with regard to sexual autonomy, as the existing unilateral duty perceives the contributions of sero-negative partners to be legally irrelevant in determining the validity of their own consent.

Refiguring “Buyer Beware”

To reconceptualize the debate by way of a crude business metaphor, mandating a parallel duty in these situations arises from a construction of risk scenarios in which the parties involved are autonomous actors, communicating unambiguously in the marketplace of social relations, and where the caveat emptor principle, or “buyer beware”, ought to apply.

In the realm of private ordering, everyone is expected to act in ways that rationally maximize their returns. Similarly, in sexual relationships, public health authorities recommend that everyone act defensively to protect themselves from HIV transmission. Save for situations of fraudulent misrepresentation, which may rightfully void an agreement or vitiate consent, caveat emptor does, and in my view, should hold in contract and criminal law.

Instead, R. v. Cuerrier and ensuing decisions inequitably minimize the responsibility of sero-negative people in avoiding the spread of HIV.  The imposition of the duty to enquire, however, in situations of an omission to disclose sero-positive status would align the criminal law with caveat emptor and a reasonable expectation of reciprocal responsibilities in sexual relations.

An Exception to the Parallel Duty: Situations of Power Imbalance

There is an exception to the “buyer beware” principle that bears on applications of the duty to enquire in situations of an omitted disclosure – namely, the unconscionability doctrine in contract law providing that agreements may not bind two parties between whom a gross inequality of power exists. My advocacy of a less paternalistic tone in judgments, lobbying for some recognition of joint obligations in the criminal law, cannot fail to appreciate situations in which it may be difficult, and even dangerous to broach discussions about sexual health before engaging in unprotected intercourse.

Circumstances may be most dire for individuals in abusive relationships, concerned that some semblance of resistance to their partner’s advances – whether in the form of an outright enquiry as to the results of HIV testing, an expressed fear of contracting diseases generally, or quiet efforts to situate a latex barrier – will prompt an aggressive response. In situations of considerable power imbalance, where the risks of physical violence subvert intentions and will, it would be extremely insensitive to impose legal expectations of autonomy upon both partners.

Persons in such circumstances are exceedingly vulnerable, often constrained in efforts to control their sexual practice by a variety of compounding factors. For instance, they may fail to grasp the severity of health consequences stemming from unprotected intercourse, be uninformed about or unable to procure safer sex products, and/or be doubly or triply displaced by virtue of their race, class, gender, disability, sexual orientation, or other condition.

Already, research suggests that 88% of sexual assaults go unreported in Canada. To add the additional burden of a reverse onus upon the heads of potential complainants, requiring some proof of having made an informed enquiry prior to engaging in sex acts with their sero-positive partner, could have the adverse effect of deterring them from reporting sexual crimes.

Reflecting this important concern, there may be public outcry if the imposition of a duty to enquire was not excepted for individuals in abusive relationships or those otherwise lacking the capacity to discharge it. Given that any future judicial action with respect to disclosure obligations is likely to fall in step with popular opinion, for a parallel duty to be palatable – indeed, for it to be ethical – such an exception must be carved out.

The Scope of the Parallel Duty and its Potential Effects on Charges and Sentencing

Indeed, appreciative of relationships in which an inequality of bargaining power exists, the scope of the duty to enquire may be best framed in inverse terms to the unilateral duty. Cory J. describes the latter as “increas[ing] with the risks attendant upon the act of intercourse,” or, put another way, “the greater the risk of deprivation the higher the duty of disclosure.” It follows that the parallel duty would decrease in extent with the risks attendant upon broaching sexual health issues prior to intercourse. This framework accommodates all situations – where the (often gendered) power dynamics within sexual relationships disable individual autonomy, parallel obligations are lessened, and where these power dynamics do not exist, obligations are expanded.

Recalling that omitted disclosure carries a lesser degree of moral blameworthiness than an express misrepresentation, the application of the duty to enquire in situations of an omission could take a number of forms. In my view, the most appealing form of the parallel duty would be to preclude serostatus non-disclosure in the event of a non-enquiry as sufficient to constitute fraud, vitiating consent in all forms of assault charges. Doing so would be to recognize, as McLachlin J. does in Cuerrier, that non-enquiring partners (again barring some exceptions), by failing to act defensively to protect themselves from infection implicitly consent to potential transmission.

Under this scheme, disabling assault charges would only have the effect of restricting prosecutions, not inhibiting them, as the Crown remains enabled to pursue non-disclosure under criminal negligence, common nuisance, and murder provisions. Given that the latter is yet quite rare, with Johnson Aziga being the first case in Canada, these restrictions would result in more lenient sentencing for future offenders, as convictions for criminal negligence and common nuisance often mandate less serious penalties than offences of assault, which corresponds to the lower social stigma attached to omissions than to express falsehoods.

The Duty to Enquire as a Duty of Care

The duty to enquire does not operate independently of the duty to disclose, but necessarily flows from non-disclosure – it reflects a duty of care to oneself, if I may, which arises in inherently risky situations. It may be said to resemble one’s civil duty to wear a seatbelt while driving, “not only on long trips, but also on short ones. Not only in the town, but also in the country. Not only when there is fog, but also when it is clear. Not only on motorways, but also on side roads.” All drivers assume risks upon getting behind the wheel, as all partners assume risks upon having unprotected intercourse – not only in straight contexts, but also in gay contexts, and not only in fluid-bonded relationships, but in fleeting encounters as well. We owe it to ourselves to make informed enquiries, and a parallel duty would do well to affirm that.