The Prosecution of Non-Disclosure of HIV in Canada: Time to Rethink Cuerrier

Abstract

The author of this article argues that Canada’s current approach to the criminalization of HIV transmission is deeply flawed and cries out for clarification. The article first considers the risk of transmission of HIV under various conditions, as determined by recent scientific studies, and concludes that HIV is not easily transmissible through sexual activity. It next examines several crucial factors that contribute to the significance, or lack of significance, of sexual activity by HIV-positive individuals, concluding that the current law creates a “numbers game” for triers of fact. The article then proceeds to a comparative analysis of other Commonwealth countries, demonstrating that Canada is unique in the scale of its prosecution of HIV transmission, as well its reliance on assault and sexual assault. The article concludes by examining several specific problems with the Cuerrier test, and proposes future directions which the Supreme Court could consider.

Keywords: Canada, Criminal law, AIDS, HIV transmission, Assault