On December 13th, 2010, the Court of Appeal of Québec
rendered an important decision in the case D.C. v. The
Queen1 on a criminal law matter where the liability
of an HIV-positive person was at issue because of the
non-disclosure of her serologic status to her sexual partner.
The facts are as follows: In 1991, D.C. was diagnosed with HIV.
In 2000, she met J.L.P., with whom she maintained a relationship
for the next four years. In 2004, after a tumultuous break-up,
J.L.P filed a complaint against D.C., alleging that the couple had
had several unprotected sexual relations before D.C. revealed her
serologic status. D.C. had an undetectable viral load at the time
of the facts in dispute. J.L.P. did not contract HIV.
The trial judge concluded that the couple had had sexual
intercourse only once before D.C. revealed her seropositivity, and
that this one instance had not been protected by the use of a
condom. The judge further concluded that this sexual relation had
exposed J.L.P. to a significant risk of transmission of HIV, and
declared D.C. guilty of sexual assault and aggravated assault
without taking into account that D.C. had an undetectable viral
The Court of Appeal, without invalidating the factual findings
of the trial judge, acquitted D.C.,being of the opinion that
although a condom was not used, the existence of only one
unprotected sexual relation, in a context where the viral load of
D.C. was undetectable, was not in this case a source of criminal
Referring to the criteria developed in 1998 by the Supreme Court
of Canada in the matter of Cuerrier2, the Court
of Appeal said that the non-disclosure of HIV vitiates the
partner's consent when the sexual relation carries a
"significant risk of serious harm", noting that the
evaluation of this must be made according to the facts and medical
evidence specific to each case.
In sum, the Court of Appeal concluded in the case of D.C. that,
in addition to issues related to the use or non-use of a condom,
the viral load should be considered in evaluating the risk of
transmission before deciding whether there can be a criminal
conviction. In this case, because the medical experts evaluated the
risk of HIV transmission of 1 on 10 000 when the viral load is
undetectable, and described this risk as "very weak, very
tiny" and "very, very weak," the Court of Appeal
acquitted the accused.
As part of this litigation, the Coalition des organismes
communautaires québécois de la lutte contre le sida
(COCQ-sida) intervened before the Court of Appeal to argue that
criminal law should not permit the conviction of a person living
with HIV for non-disclosure when this person had sexual relations
protected by the use of a condom or when this person had an
undetectable viral load.
The Court of Appeal declined the invitation of the COCQ-sida to
clarify what the Supreme Court had suggested in Cuerrier
to the effect that sexual intercourse protected by the use of a
condom does not represent an important risk of HIV transmission and
would therefore not impose a duty to disclose. The Court of
Appeal's reason for declining was that D.C.'s case did not
justify this analysis, given that a condom was not used at the time
of the sexual relation in dispute. For the future, this remains a
question of appreciation on a case-by-case basis.
On the other hand, the Court of Appeal agreed that an
undetectable viral load can, depending on the particular
circumstances of each case, dismiss the criminal liability of an
HIV-positive person for non-disclosure, even without the use of a
condom, if the evidence does not reveal a significant risk of
In doing so, it is important to note that the Court of Appeal
mentions that the medical evidence revealed that, regardless of the
viral load, the risk of transmission is never weak enough to exempt
sexual partners from using a condom.Similarly, the Court of Appeal
did not set a general rule saying that an undetectable viral load
exempts an HIV-positive person from disclosing his or her HIV
status to sexual partners prior to having relations.
Under a pro bono mandate, McCarthy Tétrault advised the
Coalition des organismes communautaires québécois de
la lutte contre le sida (COCQ-sida) on its intervention before the
Court of Appeal, on the drafting of its factum, and on its
representations as an intervener.
McCarthy Tétrault provides pro bono services to various
organizations of the community in areas as diverse as civil rights,
human rights, business law and employment law.
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