A Tale of Two Cases: Urging Caution in the Prosecution of HIV Non-Disclosure

Two provincial Courts of Appeal have recently released unanimous decisions that clarify the law regarding the obligation imposed upon people living with HIV to disclose their HIV status prior to sexual relations. The decision of the Manitoba Court of Appeal in R v. Mabior and of the Quebec Court of Appeal in R c. D.C. must be seen against a background of increasing criminal prosecutions in Canada of people with HIV who allegedly do not disclose their HIV status to sexual partners. Since the first HIV nondisclosure prosecution in 1989, there have been over 120 prosecutions. A high proportion of accused has either pleaded guilty to, or been convicted at trial, of serious criminal offences, often resulting in harsh sentences and sex offender registration. In the majority of convictions, there was no transmission of HIV to the complainant