Criminal Law and HIV/AIDS
Whether or not the criminal law should be used to deal with the behaviour of HIV-positive persons who put others at risk of contracting HIV is a hotly debated topic and has received much attention in the media and from policy- and law-makers.
As Patterson reported in a previous issue of the Newsletter,[1] Canada has so far resisted the temptation to amend the Criminal Code to contain a provision specifically dealing with HIV transmission or endangerment of transmission. However, Federal Minister of Justice Allan Rock declared in January 1995 that he was considering a Criminal Code amendment to make it a crime to "knowingly communicate" HIV.[2] In the absence of an offence to "knowingly communicate" HIV, there have been at least 11 cases in which existing Criminal Code provisions have been used to deal with HIV transmission or endangerment thereof. In most of these cases, prosecutions have been successful and have resulted in terms of imprisonment of up to 11 years.
The following is the first part of a review of these cases. The second part and a review of the literature on criminalization of HIV transmission will be published in the next issue of the Newsletter.
Common Nuisance
Section 180 of the Criminal Code provides that a person who does an unlawful act or fails to discharge a legal duty, thereby endangering the lives, safety or health of the public, or causes physical injury to any person, commits a common nuisance.
The "common nuisance" charge is traditionally used to punish people who inconvenience the general public by activities such as blocking a road or public street. Recently, however, this charge has been used in at least four cases involving persons living with HIV/AIDS who put others at risk of contracting HIV. The use of s 180 in these cases has been criticized as inappropriate. As Shekter pointed out, "[i]n the pre-AIDS context, it has been held that a common nuisance must be directed to the public generally and cannot be utilized to support a conviction where the accused's activity is directed to specific individuals as opposed to the public at large."[3] According to Shekter, it is therefore "very much an open question whether specific acts of sexual intercourse can every [sic] constitute a "common nuisance" as that term is defined in the Criminal Code." This is consistent with the ruling by Livingstone J in the case of Ssenyonga.[4] He found that the fact that Ssenyonga had engaged in unprotected sexual intercourse with three women, all of whom later tested HIV-positive, was no evidence of endangerment of public health: "Unlike the situation of donation of infected blood ... there was no evidence that Ssenyonga offered himself to the general public. The evidence was of sexual relationships with specific individuals with whom he had developed relationships and they could not be said to represent the community as a whole."[5] In contrast, in the case of Napora, the Court of Queen's Bench of Alberta held that there was enough evidence "of a public aspect of the transmission of HIV."[6]
R v Summer[7]
Summer was a bisexual men with an extensive criminal record dating back to 1981. Between 1987 and 1989, he engaged in unprotected sex with a number of persons, knowing that he was HIV-infected. He did not advise his partners of his status or use any type of protection.
Summer pleaded guilty to the charge under s 180 and was sentenced to one year of imprisonment plus three years' probation. Dinkel J relied on the principle of deterrence to justify sending a strong message to the accused and the general public that this type of offence would not go unpunished. He did not accept the defence's proposition that such a sentence might drive underground those who might otherwise come forward to public authorities to seek help. In addition, he relied on the issue of public health-care costs, noting that those who contribute to the spread of HIV must be made accountable for the substantial costs associated with its treatment. Finally, Dinkel J expressed strong reservations about the chances that the accused might actually modify his behaviour in the future.
An appeal from the sentence was dismissed. The Alberta Court of Appeal noted that the case was a serious one, although not the worst of its kind. It stressed that anyone who knowingly exposes another person to the risk of contracting HIV must expect to receive a substantial period of imprisonment.
R v Thornton[8]
Thornton had donated blood, knowing that he was HIV-infected. He pleaded guilty to a charge under s 180(2) of the Criminal Code. He testified that he had donated blood as a form of blood-letting, and that he had hoped that by getting rid of some of his contaminated blood, his chances of developing AIDS would be reduced. He further testified that he thought that the Red Cross blood-screening process was foolproof and that his blood would not "get through the system." The Ontario District Court did not accept his testimony. It held that Thornton was aware that he should not donate his blood and risk causing serious damage to the general public; he was convicted to 15 months' imprisonment.
Thornton appealed from the conviction and sentence. The Court of Appeal of Ontario confirmed that his conduct amounted to a failure to discharge a "legal duty" under s 180(2). While the Court noted that there is no statutory duty to refrain from donating HIV-infected blood, it emphasized that the common law recognizes a duty to refrain from conduct that it is reasonably foreseeable could cause serious harm to others. It held that donating blood that one knows to be HIV-infected clearly constitutes a breach of such a duty, and rejected Thorton's appeal.
On appeal to the Supreme Court of Canada, the conviction and sentence were upheld. The Court held unanimously that Thorton breached his duty of care by not disclosing that he was HIV-positive, thus endangering the life, safety and health of the public (82 CCC (3d) 530, 21 CR (4th) 215, [1993] 2 SCR 445).
R v Kreider[9]
The accused entered a guilty plea to a charge of committing a common nuisance. He had tested HIV-positive in February 1991 and subsequently had unprotected sex with the complainant on three occasions, without telling her that he was HIV-positive. However, he later did tell her, and both sought medical advice together, at which time the accused was described as being "tearful and extremely remorseful over what he had done." The complainant tested negative six months after the last occasion of unprotected intercourse, and subsequently had protected sex with the accused.
In the Court's opinion, the accused's guilty plea confirmed that he was genuinely remorseful about what he had done. Although he clearly knew that he should not have had unprotected sex with the complainant, the evidence revealed that he might have been going through a period of temporary denial at the time of the offence. According to the Court, this evidence was not sufficient to completely exonerate the accused. However, it held that the other mitigating factors, including the fact that there was only one victim, did not make this a case deserving the harshest sentence. Nevertheless, the Court noted the gravity of the risk to the victim and stated that an unequivocal message must be sent to other HIV-positive persons who might put their partners at risk. The accused was sentenced to one year of imprisonment.
R v Napora[10]
Napora, a former male prostitute, tested positive for HIV in 1989. He was charged with two counts of common nuisance for engaging in consensual anal intercourse with another men, without using a condom, knowing that he was HIV-positive.
Napora was found not guilty. The evidence established that his partner could well have been already infected at the time of the instances of unprotected sexual intercourse at issue in this case.
Although consent was not a legal issue in the trial, the Court noted that – if it had been an issue – it would have held that "the informed consent of a person to have unprotected high risk sexual activity would not relieve the HIV infected person from criminal responsibility." The Court said that it would not "allow a person to expose others to the risk of contracting a fatal disease."
Criminal Negligence
Under s 219 of the Criminal Code, a person is criminally negligent who in doing anything – or in omitting to do anything that is his or her duty to do – shows wanton and reckless disregard for the lives or safety of other persons.
This section has been used in at least two cases involving transmission of HIV.
R v Wentzell[11]
This was the first Canadian criminal case to deal with the issue of HIV transmission. Wentzell was diagnosed HIV-positive in January 1988 and was advised that he should be practising safe sex. In July and August 1988, without disclosing his status, Wentzell had unprotected sex on about 40 occasions with a woman who was six months pregnant at the time. The woman was later diagnosed HIV-positive. It was not known at the time of the judgment whether the baby had also contracted HIV.
Wentzell pleaded guilty to criminal negligence causing bodily harm. The Court noted that he was not guilty of deliberately transmitting the virus. However, by having engaged in 40 incidents of unprotected sexual activity with the complainant, he had shown wanton and reckless disregard for her life. The Court acknowledged that a reduction in the spread of HIV can only be achieved through education and awareness, and that the criminal law has only a minor role to play in this respect. However, it invoked the principle of deterrence to justify sentencing Wentzell to three years imprisonment, coupled with a recommendation that he receive all necessary treatment and counselling in prison. The Court concluded that a clear and unequivocal message must be sent that a serious crime had been committed.
R v Mercer[12]
Mercer pleaded guilty to two charges of criminal negligence causing bodily harm through transmission of HIV. He was convicted at trial to 27 months of imprisonment. The Crown appealed the sentence.
In April 1991, Mercer was identified by a medical officer as having been the partner of an HIV-infected woman. He was told that he might have been infected and was asked to submit to a test. Mercer was also warned and counselled about the risks of transmission. In June 1991, prior to receiving the result of his test, he had unprotected sex with a 16-year-old girl without informing her that he might be HIV-positive. The girl requested that a condom be used, but Mercer refused telling her that there was no risk.
In July 1991, Mercer received the result of his test. He was found to be HIV-positive and again he was counselled about the risks involved in unprotected sexual intercourse. When asked about his recent partners, he failed to mention the 16-year-old girl. Mercer continued to have unprotected sex with the girl, who later tested HIV-positive. In July of 1991, he also had unprotected sex with another woman, who consequently contracted HIV.
On appeal, the sentence was increased to 11 years and three months. The Court emphasized the magnitude of the harm done and the deliberate nature of the acts and concluded that a much longer sentence was warranted. It dismissed the argument that imposing such a long sentence on a person who, knowing that he was HIV-positive, had unprotected sex without informing his partners about his serostatus, might dissuade other people to seek testing. The Court chose to send a strong message, in order to deter others from committing such acts. It concluded by saying that any degree of compassion over the fact that this sentence might well be equal to a life sentence must cede to the imperative of public protection.
- Bruno Guillot-Hurtubise
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ENDNOTES
[1] D Patterson. Should Canada Criminalize HIV Endangerment? Canadian HIV/AIDS Policy & Law Newsletter, vol 1, no 2 (1995) at 1, 14-15.
[2] As reported in Canadian HIV/AIDS Policy & Law Newsletter, vol 1, no 3 (April 1995) at 6.
[3] RH Shekter. The Criminalization of AIDS in Canada. In: Canadian Bar Association-Ontario (Continuing Legal Education). AIDS. Toronto: The Association, proceedings of a workshop held on 24 October 1992.
[4] R v Ssenyonga (1992), 73 C.C.C. (3d) 216 (Ont Ct, Prov Div), preliminary inquiry before Livingstone J.
[5] WH Holland. HIV/AIDS and the Criminal Law. Criminal Law Quarterly 1994; 36: 279-316 at 306.
[6] Unreported decision of 27 February 1995 (Court of Queen's Bench of Alberta, Judicial District of Edmonton). See infra.
[7] (1989), 73 CR (3d) 32, 99 AR 29, 69, 69 Alta LR (2d) 303 (CA).
[8] (1991), 3 CR (4th) 381, 1 OR (3d) 480 (CA).
[9] (1993) 140 AR 81 (Alta Prov Ct), [1993] AWLD 560.
[10] See supra, note 6; for a more detailed summary, see R Jürgens. HIV-Positive Man Acquitted of Two Counts of Common Nuisance. Canadian HIV/AIDS Policy & Law Newsletter, vol 1, no 3 (April 1995) at 9.
[11] File No CR 10888 (December 8, 1989, NS Co Ct).
[12] (1993), 84 CCC (3d) 41, 110 Nfld & PEIR 41 (CA), leave to appeal to SCC refused, SCC Bull, 4 March 1994, at 348.