Published January, 2012

Criminal prosecutions for HIV non-disclosure: two cases before the Supreme Court of Canada, Canadian HIV/AIDS Legal Network (2012)

This note was written in anticipation of the February 8, 2012, arguments of two HIV non-disclosure cases before the Supreme Court of Canada. It offers fact summaries on both cases and explains the implications of the Court's decision on people with HIV in Canada. The authors argue that Canada's HIV non-disclosure law should be applied only in the "most blameworthy" cases and that the Supreme Court of Canada must clarify the notion of "significant risk" to reflect the latest research on the real routes and risks of HIV transmission. They contend that people with HIV should not be prosecuted for not disclosing their status when: 1) a condom is used for vaginal or anal sex; 2) their viral load is low or undetectable; and 3) when they engage in activities where risk is similarly reduced (e.g. unprotected oral sex).