The case of D.C. v. The Queen: The Court of Appeal of Québec recognizes the viral load as a relevant factor to appreciate the criminal conduct in a case of non-disclosure of HIV

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 load.

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 liability.

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 transmission.

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.

1 2010 QCCA 2289 (in French only)

2 [1998] 2 S.C.R. 371