1. Sexual contact without consent is sexual assault.

Even if someone did consent to sexual activity with you, their consent can be invalidated if it is obtained through fraud. This would include lying about or failing to share something that would have changed their mind when determining whether or not they consent to having sex with you. Failing to disclosure your HIV status could fall within this category.

2. Sexual assault becomes aggravated sexual assault when it endangers someone’s life.

Canadian courts consider HIV to pose a risk of serious bodily harm and endangering someone’s life.

A condom is not used, regardless of the person’s viral load. If a condom were to break during sex, disclosure would then be required at that point.

A condom is used but the person’s viral load is high. A viral load was considered high by the court if it was more than 1500.

As anal sex can pose a higher risk of HIV transmission than vaginal sex, the duty to disclose one’s HIV status would be at least as high and possibly higher. The court did not state whether using a condom and having a low viral load was enough to remove a person’s duty to disclose their HIV status within the context of anal sex.

Frontal sex, from what we know, should pose a similar risk of HIV transmission to vaginal sex and therefore the duty to disclose one’s status should likely be the same, although the court decisions mentioned did not address frontal sex specifically.

HIV Disclosure

References

Criminal Law & Non-Disclosure in Canada, Canadian HIV/AIDS Legal Network, http://www.aidslaw.ca/site/wp-content/uploads/2014/09/CriminalInfo2014_ENG.pdf
HIV Disclosure and the Law: A Resource Kit for Service Providers, Canadian HIV/AIDS Legal Network,
http://www.aidslaw.ca/site/hiv-disclosure-and-the-law-a-resource-kit-for-service-providers/#CrimLaw
HIV: A Legal Guide for Gay Men in Canada, HALCO & Catie
http://www.catie.ca/sites/default/files/26081.pdf
HIV Non-Disclosure & Criminal Law: An Analysis of Two Recent Decisions of the Supreme Court of Canada, The Canadian HIV/AIDS Legal Network
http://www.aidslaw.ca/site/wp-content/uploads/2013/04/SCC_DecisionAnalysis-ENG.pdf
Criminalization of HIV Non-Disclosure, HIV in Canada: A Primer for Service Providers,
http://www.catie.ca/en/hiv-canada/4/4-1/4-1-2
R v Mabior, 2012 SCC 47 (http://canlii.ca/t/ft1pq)
R v Felix, 2013 ONCA 415 (http://canlii.ca/t/fzckv)