Criminal Law – HIV Criminalization, Criminal Record Pardons/Record Suspensions, Removals from Sex Offender Registries

Depending on our resources and the issue, HALCO may provide free summary advice and/or representation to people living with HIV in Ontario if the matter is HIV-related. If we cannot provide advice or brief services, we will do our best to provide information and referrals to other services.

If the criminal law matter is HIV-related, we may be able to provide advice. While we provide advice on HIV-related criminal law matters, we would not provide representation in any criminal law matters as Legal Aid Ontario certificates are available. We provide consults to other lawyers working on HIV-related criminal law matters.

We may be able to assist with the following matters if they are HIV-related:

  • Criminal law and HIV Non-disclosure (advice only)
  • Criminal Pardons/Record Suspensions
  • Removals from Sex Offender Registries
  • Legal Aid Ontario Certificate Denials 

The Steps to Justice Website offers step-by-step information about criminal law and other common legal problems. https://stepstojustice.ca/legal-topic/criminal-law/

Please contact us if you are denied a certificate from Legal Aid Ontario. For more information about challenging denials, see here: https://www.legalaid.on.ca/faq/i-have-been-refused-legal-aid-what-can-i-do/

Criminal law and HIV Non-disclosure

Most of the time, whether someone tell others (or “disclose”) that they are living with HIV is up to them. They may choose not to disclose because they are not sure how to tell people, or because of stigma and discrimination against people living with HIV. They may also choose not to disclose because of homophobia, racism, transphobia, or discrimination against Two-Spirit people.

The situation is different when it comes to sex partners. In Canada, the criminal law says that, in certain circumstances, people must tell their sex partners that they are living with HIV before they have sex. This is sometimes referred to as a “legal duty to disclose.”

But people do not always have to disclose to their sex partner under the criminal law. They are only required to tell their sex partner that they are living with HIV before they have sex when there is a “realistic possibility” that they could pass on (transmit) HIV. If people do not tell their sex partner before they have sex where there is a “realistic possibility” of passing on HIV, they can be charged with aggravated sexual assault, even if their partner does not get HIV.

Unfortunately, courts have not clearly defined what “realistic possibility” means. So sometimes it can be really hard to figure out if someone has a legal duty to disclose.

Below is the current law for people living with HIV in Ontario:

  • There is no legal duty to disclose in these situations:
  • Kissing or other activities that have no risk of HIV being passed on.
  • Vaginal, anal, or oral sex if a person’s viral load is under 200 copies/ml blood for at least six months. This is the case whether or not a condom is used.
  • Vaginal, anal, or oral sex if a person uses a condom properly and it does not break and their viral load is in between 200 and 1500 copies/ml blood.

 

  • There is a legal duty to disclose in these situations:
    • Prosecutions may take place in circumstances other than those noted above (prosecutions for oral sex alone are less likely):
      • Vaginal, anal, or oral sex if a person’s viral load is over 1500 copies/ml blood, regardless of whether a condom is used.
      • Vaginal, anal, or oral sex if a person’s viral load is between 200 and 1500 copies/ml blood and a condom is not used. If a condom is used but not used properly or breaks, and there is no disclosure, a prosecution may still take place.

If anyone has questions about the criminal law and HIV, or are threatened with criminal charges, please contact us immediately. If police want to ask someone questions, they do not have to answer them (they should only tell them their name and date of birth). Anything anyone says to police at any time may be used as evidence against them. People have the right to speak to a lawyer in private before answering questions from police. People should only talk to HALCO or a criminal lawyer about these situations.

Criminal Pardons/Record Suspensions

Information about Record Suspensions, including the application, can be found here: https://www.canada.ca/en/parole-board/services/record-suspensions.html

Legal Aid Ontario Certificate Denials

Please contact us if you are denied a certificate from Legal Aid Ontario. For more information about challenging denials, see here: https://www.legalaid.on.ca/faq/i-have-been-refused-legal-aid-what-can-i-do/