Reforming the criminal law regarding HIV non-disclosure – Online Public Consultation

The Government of Canada is reviewing the criminal law regarding HIV non-disclosure and has sought feedback from the Canadian public.

“HIV non-disclosure” refers to criminal cases where a person living with HIV, who is aware of their status and knows they are infectious, does not disclose their HIV status before sexual activity that poses a realistic possibility of transmission.

As part of the consultation, participants were invited to share their views on possible criminal law reforms related to HIV non-disclosure.

Areas explored included:

• Whether sexual assault offences are appropriate in HIV non-disclosure cases;
• Whether intention to transmit or actual transmission should be requirements for criminal charges to be laid;
• Whether criminal law should apply in cases where an accused has taken precautions to protect their sexual partner(s) from transmission;
• Whether a new HIV, STI or infectious disease-specific offence should be created to address HIV non-disclosure cases.

At the moment, persons living with HIV who do not disclose their status prior to sexual activity that poses a risk of transmission can be charged with different offences, including aggravated sexual assault.  Aggravated sexual assault is the most serious sexual assault offence in the Criminal Code. This is because, in certain circumstances, the non-disclosure of one’s HIV status can invalidate another person’s consent to engage in sexual activity. However, criminalization can lead to the stigmatization of people living with HIV, which can often discourage individuals from being tested or seeking treatment. There has been considerable progress in terms of HIV treatment and scientific evidence on rates of transmissibility.

That is why holding a consultation and hearing from stakeholders and those with lived experience is key to creating a path forward that follows science, protects victims, and reduces the stigma of those living with HIV.

The online public consultation

1. Read the consultation paper: View the consultation paper online or download a print version.
2. Complete the online survey: The online survey is now closed.
3. Send us your submission: The submission portal is now closed.

Next Steps

Feedback received as part of the public consultation will inform next steps in policy development and serve as a key tool for any Criminal Code reforms.