HALCO Participates in Important HIV Criminalization Case at Court of Appeal for Ontario

On February 12, 2020 in Toronto, the Canadian HIV/AIDS Legal Network (Legal Network), Coalition des Organismes Communautaires Québécois de Lutte Contre le Sida (COCQ-SIDA) and HIV & AIDS Legal Clinic Ontario (HALCO) jointly intervened in “R. v. N.G.” at the Court of Appeal for Ontario. The case involves an appeal of a conviction for aggravated sexual assault in circumstances related to sex with a condom.

Below is a condensed version of our media statement.

“In this case, a young man living with HIV was convicted in 2017 of aggravated sexual assault for not disclosing his HIV-positive status before sexual intercourse — despite using a condom in every instance. There is no allegation that HIV was transmitted and no evidence of any incorrect condom use.

Evidence before the court indicated that when used correctly, condoms are 100% effective in preventing HIV transmission because the virus cannot pass through them. Despite this, the trial judge ruled that condom use alone was insufficient; therefore the non-disclosure of his HIV status was an aggravated sexual assault, one of Canada’s most serious offences.

[We argued] in court that correct condom use is, and should be, sufficient to prevent criminal prosecution.

The injustice of criminalizing people living with HIV who correctly use condoms is compounded by the severe consequences of a conviction for aggravated sexual assault, including years in prison, mandatory lifetime designation as a sex offender and, in some cases, deportation. These are grossly disproportionate penalties for a sexual encounter that is otherwise consensual, and in which a person has taken a highly effective precaution that means either zero risk or at most a negligible risk of HIV transmission.”

As interveners, the Legal Network, COCQ-SIDA and HALCO advocated for a ruling that is based on science, respects human rights and is good public policy.

Our full media statement can be found in English and French.

Our factum can be found here.

If you are living with HIV in Ontario and have concerns about this or any other legal issue, please contact us for free legal advice.

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