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...