This case concerns the criminalization of HIV transmission and exposure under the Criminal Code. At issue are citizens’ and patients’ rights to privacy over health status, autonomy over personal life, freedom from discrimination and whether so-called morality offences are the most appropriate way to protect the public.
The BCCLA was granted leave to intervene in the case. The BCCLA argued that the current legal test set out by the Supreme Court of Canada in R. v. Cuerrier of “significant risk of serious bodily harm” has led to uncertainty and inconsistency in the criminal law. The BCCLA also argued that sexually transmitted infections should be treated primarily as a public health issue and that the criminalization of HIV transmission is already addressed by other provisions of the Criminal Code. It also argued that if the current legal test is not set aside, it should be refined.
In its decision, the Supreme Court of Canada affirmed the test set out in R. v. Cuerrier, and established a defence to non-disclosure only in cases where the accused has a low viral load and uses a condom.
The BCCLA is represented by Michael Feder and Angela Juba of McCarthy Tétrault LLP.
Supreme Court of Canada