The SCC in D.C. and Mabior Part I: Incremental Change and Some Troubling Loose Ends
This is the first part of a two-part post regarding R v DC and R v Mabior. Part II of this post explores the reaction to the case from the media, the interveners and the public. Part II can be found here.
On October 5, 2012, the Supreme Court of Canada (“SCC”) released its highly anticipated decisions in R v DC,  2 SCR 626 [DC] and R v Mabior,  2 SCR 584 [Mabior]. The companion cases clarify the Cuerrier test (from R v Cuerrier,  2 SCR 371 [Cuerrier]) for when non-disclosure of HIV-positive status can amount to fraud vitiating consent under s. 265(3)(c) of the Criminal Code, RSC, 1985, c C-46 [Criminal Code].
The facts of the cases have been reported by TheCourt.ca previously and can be found here.
Revising Cuerrier: Incremental Change
The decision in Mabior represents an incremental change in the law from the previous Cuerrier standard. Cuerrier held that there must be a “significant risk of bodily harm” in order for non-disclosure of HIV-positive status to vitiate consent to sexual relations. As McLachlin CJ points out in her unanimous decision in Mabior, Cuerrier resulted in both uncertainty and issues with the breadth of the law.
The big question that the SCC had to answer was what exactly was meant by “significant risk of bodily harm.” The standard had been applied unevenly in the past, as there was no clear consensus on what constituted a “significant risk” or what was meant by “bodily harm.” Thus, the law was unclear as to when failure to disclose would constitute a criminal act.
As McLachlin CJ writes in Mabior, “[i]t is a fundamental requirement of the rule of law that a person should be able to predict whether a particular act constitutes a crime at the time he commits the act” as “[c]ondemning people for conduct that they could not have reasonably known was criminal is Kafkaesque and anathema to our notions of justice.” The main points that required clarification were the relationship of viral load and condom use to the threshold of “significant risk.”
To clarify these two points, Mabior holds that “significant risk of bodily harm” “should be read as requiring disclosure of HIV status if there is a realistic possibility of transmission of HIV.” A “realistic possibility” of HIV transmission will be negated if: (i) the accused’s viral load at the time of sexual relations was low and (ii) condom protection was used. If these two elements are present, one’s failure to disclose their HIV status will not constitute fraud vitiating consent under s. 265(3)(c) of the Criminal Code. However, it is important to note that there is no definition given of “low” viral load, which may again create uncertainty in the future application of Mabior.
The respondents in this case argued that if HIV non-disclosure should be criminalized at all, the significant risk of bodily harm standard should be limited to the point that a low viral load or condom use would negate a positive duty to disclose. The Crown argued to remove the significant risk of bodily harm requirement altogether, submitting that “all HIV-positive people should be required to disclose the fact to all sexual partners in all cases.” The SCC’s decision thus represents a middle ground that qualifies the significant risk of bodily harm standard without removing it all together.
Some Loose Ends: The Question of Criminalization and the Public Health Argument
A broader question regarding HIV non-disclosure is whether the use of criminal law is appropriate to the situation in the first place, both because of the “Cuerrier paradox” and for reasons of public health and prevention.
The Cuerrier paradox, as referenced by Isabel Grant in her paper “The Boundaries of the Criminal Law: The Criminalization of the Non-Disclosure of HIV” refers to the fact that it was often easier to charge people under Cuerrier when the complainant did not contract HIV than when they did. This paradox can be seen most clearly in the case of R v Williams,  2 SCR 134, where a conviction for attempted aggravated assault was substituted as it could not be proven beyond a reasonable doubt that the accused infected the complainant of HIV at the time he knew he was HIV-positive because he had not learned of his diagnoses until six months into the relationship. Therefore, the accused in cases such as Mabior and D.C. would be charged with the harsher crime of aggravated assault as this evidentiary challenge does not arise.
The decision in Mabior does not erase this paradox. In fact, McLachlin CJ writes that a “survey of comparative law shows that common law jurisdictions criminalize the actual sexual transmission of HIV,” not the risk of transmission. This survey also shows that jurisdictions such as Britain, Australia and New Zealand treat the transmission of HIV not as a sexual offence but as an offence involving bodily harm. Very little explanation is given as to why Canada has moved in such a different direction and whether this direction is even helpful or necessary.
What is troubling about Mabior is that the decision barely addresses the issue of whether criminalization is an appropriate means of addressing rising rates of HIV transmission at all. McLachlin CJ spends pages outlining the common law history of fraud vitiating consent to sexual relations, tracing it back to cases in the 1800’s and exploring the days when the only thing that could vitiate consent was deception as to the sexual nature of the act or as to the identity of the male partner, but spends very little time on the criminalization argument.
It seems clear that the law has moved past the point where a husband could not be held criminally responsible for raping his wife or consent could only be negated if the man lied about who he was. By focusing on this analysis rather than the larger questions, the SCC is skirting some of the real issues at stake in this case, such as public health considerations and HIV-related stigma.
Another convincing argument advanced by the respondents and the interveners in this case was that the criminalization of HIV non-disclosure may deter people from seeking treatment, as lack of knowledge as to HIV status can shield an HIV-positive person from criminal liability. The SCC refuses to accept this argument, as there is little conclusive evidence linking criminalization with reporting rates. However, there is also little conclusive evidence that the criminalization of HIV non-disclosure has had any significant deterrent effect, as rates of HIV infections continue to rise in Canada, especially in Aboriginal populations. As the SCC does not address this other side of the argument, there is a gap in the decision as to an explanation of what criminalization achieves.
While I believe the SCC’s conclusion that low viral load combined with use of a condom will not constitute fraud vitiating consent does an admiral job of balancing the interests of HIV-positive people with a generous respect for the importance of consent, I would have been more comfortable with the decision if the above points were addressed more thoroughly.