Introduction

In this focus feature, we offer three perspectives on the recent Supreme Court of Canada judgments in R v Mabior and R v DC, which attempted to clarify when a person living with HIV will be subject to criminal liability for failing to disclose this condition prior to engaging in sexual intercourse. Martha Shaffer argues that the Court missed an opportunity to reconsider the test for sexual fraud it had laid out in its 1998 decision in R v Cuerrier, a test that, since its inception, has proven difficult to apply. Isabel Grant argues that the Court has over-criminalized HIV nondisclosure through treating all cases where there is a realistic possibility of transmission as aggravated sexual assault regardless of whether transmission of the virus takes place. Alison Symington notes that the Court’s punitive approach is out of step with recent scientific and medical advancements with respect to HIV transmission and treatment and that, while the Court set out a risk-based test, it did not appropriately weigh the evidence regarding the risk of HIV transmission. These three perspectives demonstrate that the criminalization of HIV non-disclosure in Canada remains deeply problematic.