Earlier this summer, the House of Commons Standing Committee on Justice and Human Rights released a report on Canada’s approach to criminalizing those who don’t disclose that they’re living with HIV to sexual partners.
If the Standing Committee’s recommendations are adopted, they could diminish the harms experienced by women living with HIV under Canada’s current approach to criminalization.
But further consideration and consultation are required in order to fully address the harms that the law introduces to the lives of women living with HIV.
The Supreme Court of Canada articulated the current legal approach in 2012. In so doing, the court interpreted consent and fraud provisions of Canada’s sexual assault laws and ruled that people diagnosed with HIV must disclose their status to sexual partners before engaging in sexual acts that pose a “realistic possibility of transmission.”
The court also stated that there is no legal obligation to disclose prior to sex if a condom is used and the person living with HIV has a consistently low measure of HIV in their blood. This legal understanding of a “realistic possibility” contradicts current scientific knowledge that just one of these conditions is sufficient to eliminate transmission risk.
Scientific evidence endorsed by the federal government demonstrates that an undetectable viral load eliminates the risk of sexual transmission of HIV, regardless of condom use. Similarly, there is a negligible risk of transmission when condoms are used properly, no matter an individual’s viral load.