R. v. Cuerrier
Encyclopedia
R. v. Cuerrier was a 1998 decision by the Supreme Court of Canada
, which ruled that knowingly exposing a sexual partner to HIV
constitutes a prosecutable crime (aggravated assault) under Canadian
law.
who tested positive for HIV in 1992. He subsequently had sexual relationships with two women, in which he neither disclosed his HIV status nor used condom
s to protect his partners. Both women later learned of Cuerrier's HIV status, and Cuerrier was subsequently charged with aggravated assault even though both women subsequently tested HIV-negative.
Under Canadian law, a charge of aggravated assault requires proof that the defendant's actions endangered the life of the complainant, and that the force must have been intentionally applied. Cuerrier, whose case was based on the fact that both women had consented to have unprotected sex with him, was acquitted in the initial court hearing. On appeal to the British Columbia Court of Appeal
, the first court's ruling was upheld.
. The women's consent to unprotected sexual activity, therefore, was not validly given as it was obtained through fraudulent means.
The court did, however, rule that an HIV-positive person who practices safer sex does not necessarily have a legal responsibility to disclose his or her status.
The judges were unanimous in ruling that failure to disclose HIV status constituted fraud, although they differed on how to implement the ruling in law. The majority decision, authored by Justice Peter Cory, set out three criteria which should be proven in a prosecution on these grounds:
In a minority opinion, Justice Beverley McLachlin
favoured the specific addition of a clause regarding "deceit about sexually transmitted disease that induces consent" in the legal definition of fraud. In another minority opinion, Justice Claire L'Heureux-Dubé
argued that the first and third criteria set out by Cory should suffice for a conviction; she did not favour a burden of proof whether there was an actual risk of harm.
, intervened in the case. The group raised a number of potential implications of the decision, including:
The court also did not rule that any burden of proof exists whether the accused even knew how to protect their sexual partners. While practising safer sex is considered a valid defense, no burden of proof exists whether the HIV-positive partner had ever actually been educated in safer sex practices.
Generally, legal analysts and HIV educators viewed the decision as "the wrong tool for the job", suggesting that it was an attempt to use criminal law to resolve what is, first and foremost, a public health matter.
In a similar American
case, Stephen Gendin
, a vice-president of Poz
, commented that
n immigrant living in London, Ontario
who was charged with aggravated assault stemming from three sexual encounters in the late 1980s. Ssenyonga, however, died in 1993 before a verdict was rendered in his case.
Harold Williams of Newfoundland was charged with aggravated assault and common nuisance in a controversial 2003 decision, which overturned a 2000 sentencing. While Williams knowingly had frequent unprotected sex with a partner and she became HIV positive, he received a relatively light charge as the Crown could not provide evidence that she was previously HIV negative. However, the impact of this decision was mitigated as Williams was separately sentenced to five years imprisonment for having unprotected sex with two other women without disclosing his HIV positive status.
Ray Mercer, a 28-year-old man from Upper Island Cove, Newfoundland and Labrador
, was charged with criminal negligence causing bodily harm in 1991 after potentially infecting up to 14 women. (He was charged after Ssenyonga, but went to trial earlier.) He was sentenced in 1992 to two and half years in prison; on a Crown appeal, Mercer's sentence was increased to 11 years. Mercer was released from prison in 2003.
In 2003, Edward Kelly was charged and convicted of knowingly exposing four women to HIV, and sentenced to three years in prison. In 2004, Jennifer Murphy became the first woman charged in Canada with failing to disclose her HIV status to a sexual partner. She spent a year under house arrest before the charge was withdrawn in 2007, mainly because she had insisted on condom use during the incident.
On October 28, 2005, CFL
player Trevis Smith
was also charged with aggravated sexual assault
for failing to disclose his HIV status to a sex partner. Smith was found guilty of aggravated sexual assault on February 8, 2007.
On November 16, a court ruled that there was sufficient evidence for Johnson Aziga
, whose case was first investigated and publicized in 2004, to stand trial on two counts of first-degree murder after two of his former sexual partners died of AIDS
.
Analysts have also called attention to the racial aspects of the cases. Many of the cases of HIV transmission prosecuted to date have involved black
men, as black men have disproportionately high rates of HIV. One notable scholarly paper on the Ssenyonga case, published in 2005, was titled African Immigrant Damnation Syndrome.
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
, which ruled that knowingly exposing a sexual partner to HIV
HIV
Human immunodeficiency virus is a lentivirus that causes acquired immunodeficiency syndrome , a condition in humans in which progressive failure of the immune system allows life-threatening opportunistic infections and cancers to thrive...
constitutes a prosecutable crime (aggravated assault) under Canadian
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
law.
Background
The case involved Henry Cuerrier, a man from British ColumbiaBritish Columbia
British Columbia is the westernmost of Canada's provinces and is known for its natural beauty, as reflected in its Latin motto, Splendor sine occasu . Its name was chosen by Queen Victoria in 1858...
who tested positive for HIV in 1992. He subsequently had sexual relationships with two women, in which he neither disclosed his HIV status nor used condom
Condom
A condom is a barrier device most commonly used during sexual intercourse to reduce the probability of pregnancy and spreading sexually transmitted diseases . It is put on a man's erect penis and physically blocks ejaculated semen from entering the body of a sexual partner...
s to protect his partners. Both women later learned of Cuerrier's HIV status, and Cuerrier was subsequently charged with aggravated assault even though both women subsequently tested HIV-negative.
Under Canadian law, a charge of aggravated assault requires proof that the defendant's actions endangered the life of the complainant, and that the force must have been intentionally applied. Cuerrier, whose case was based on the fact that both women had consented to have unprotected sex with him, was acquitted in the initial court hearing. On appeal to the British Columbia Court of Appeal
British Columbia Court of Appeal
The British Columbia Court of Appeal is the highest appellate court in the province of British Columbia, Canada. The BCCA hears appeals from the Supreme Court of British Columbia and a number of boards and tribunals. The BCCA also hears criminal appeals from the Provincial Court of British...
, the first court's ruling was upheld.
Reasons of the court
The Supreme Court ruled that Cuerrier's failure to disclose his HIV status constituted fraudFraud
In criminal law, a fraud is an intentional deception made for personal gain or to damage another individual; the related adjective is fraudulent. The specific legal definition varies by legal jurisdiction. Fraud is a crime, and also a civil law violation...
. The women's consent to unprotected sexual activity, therefore, was not validly given as it was obtained through fraudulent means.
The court did, however, rule that an HIV-positive person who practices safer sex does not necessarily have a legal responsibility to disclose his or her status.
The judges were unanimous in ruling that failure to disclose HIV status constituted fraud, although they differed on how to implement the ruling in law. The majority decision, authored by Justice Peter Cory, set out three criteria which should be proven in a prosecution on these grounds:
- the accused committed an act that a reasonable person would see as dishonest,
- there was a harm, or a risk of harm, to the complainant as a result of that dishonesty, and
- the complainant would not have consented but for the dishonesty by the accused.
In a minority opinion, Justice Beverley McLachlin
Beverley McLachlin
Beverley McLachlin, PC is the Chief Justice of Canada, the first woman to hold this position. She also serves as a Deputy of the Governor General of Canada.-Early life:...
favoured the specific addition of a clause regarding "deceit about sexually transmitted disease that induces consent" in the legal definition of fraud. In another minority opinion, Justice Claire L'Heureux-Dubé
Claire L'Heureux-Dubé
Claire L'Heureux-Dubé, served as a justice on the Supreme Court of Canada from 1987 to 2002. She was the first woman from Quebec and the second woman appointed to this position.- Personal history :...
argued that the first and third criteria set out by Cory should suffice for a conviction; she did not favour a burden of proof whether there was an actual risk of harm.
Implications
Groups, including the Canadian HIV/AIDS Legal NetworkCanadian HIV/AIDS Legal Network
The Canadian HIV/AIDS Legal Network promotes the human rights of people living with and vulnerable to HIV/AIDS, in Canada and internationally, through research, legal and policy analysis, education, and community mobilization...
, intervened in the case. The group raised a number of potential implications of the decision, including:
- the prospect that criminalizing a failure to disclose one's HIV status will deter sexually active persons from getting tested for HIV in the first place,
- the potential of a negative impact on doctorPhysicianA physician is a health care provider who practices the profession of medicine, which is concerned with promoting, maintaining or restoring human health through the study, diagnosis, and treatment of disease, injury and other physical and mental impairments...
-patient relationships if the courts open the door to a doctor being subpoenaSubpoenaA subpoena is a writ by a government agency, most often a court, that has authority to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of subpoena:...
ed to testify as to the defendant's HIV status, - lulling sexually active persons into a "false sense of security" that they need not practice safer sex since criminal law, rather than their own sexual behaviour, protects them from HIV risk.
The court also did not rule that any burden of proof exists whether the accused even knew how to protect their sexual partners. While practising safer sex is considered a valid defense, no burden of proof exists whether the HIV-positive partner had ever actually been educated in safer sex practices.
Generally, legal analysts and HIV educators viewed the decision as "the wrong tool for the job", suggesting that it was an attempt to use criminal law to resolve what is, first and foremost, a public health matter.
In a similar American
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
case, Stephen Gendin
Stephen Gendin
Stephen Gendin was a prominent AIDS activist, involved with ACT UP, ActUp/RI, Sex Panic!, Community Prescription Service, POZ Magazine, and the Radical Faeries....
, a vice-president of Poz
POZ (magazine)
POZ is a monthly magazine that chronicles the lives of people affected by HIV/AIDS. Its website, Poz.com, has daily HIV/AIDS news, treatment information, forums, blogs and personals....
, commented that
Other cases
The first Canadian citizen ever charged with failing to disclose his HIV status to a sexual partner was Charles Ssenyonga, a UgandaUganda
Uganda , officially the Republic of Uganda, is a landlocked country in East Africa. Uganda is also known as the "Pearl of Africa". It is bordered on the east by Kenya, on the north by South Sudan, on the west by the Democratic Republic of the Congo, on the southwest by Rwanda, and on the south by...
n immigrant living in London, Ontario
London, Ontario
London is a city in Southwestern Ontario, Canada, situated along the Quebec City – Windsor Corridor. The city has a population of 352,395, and the metropolitan area has a population of 457,720, according to the 2006 Canadian census; the metro population in 2009 was estimated at 489,274. The city...
who was charged with aggravated assault stemming from three sexual encounters in the late 1980s. Ssenyonga, however, died in 1993 before a verdict was rendered in his case.
Harold Williams of Newfoundland was charged with aggravated assault and common nuisance in a controversial 2003 decision, which overturned a 2000 sentencing. While Williams knowingly had frequent unprotected sex with a partner and she became HIV positive, he received a relatively light charge as the Crown could not provide evidence that she was previously HIV negative. However, the impact of this decision was mitigated as Williams was separately sentenced to five years imprisonment for having unprotected sex with two other women without disclosing his HIV positive status.
Ray Mercer, a 28-year-old man from Upper Island Cove, Newfoundland and Labrador
Upper Island Cove, Newfoundland and Labrador
Upper Island Cove, Newfoundland and Labrador is a town in Newfoundland and Labrador. It is located in Division No. 1, Newfoundland and Labrador census division. It is north east of Bay Roberts. The Way office was established in 1864. The population was 942 in 1940; 1,346 in 1951, 1,563 in 1956,...
, was charged with criminal negligence causing bodily harm in 1991 after potentially infecting up to 14 women. (He was charged after Ssenyonga, but went to trial earlier.) He was sentenced in 1992 to two and half years in prison; on a Crown appeal, Mercer's sentence was increased to 11 years. Mercer was released from prison in 2003.
In 2003, Edward Kelly was charged and convicted of knowingly exposing four women to HIV, and sentenced to three years in prison. In 2004, Jennifer Murphy became the first woman charged in Canada with failing to disclose her HIV status to a sexual partner. She spent a year under house arrest before the charge was withdrawn in 2007, mainly because she had insisted on condom use during the incident.
On October 28, 2005, CFL
Canadian Football League
The Canadian Football League or CFL is a professional sports league located in Canada. The CFL is the highest level of competition in Canadian football, a form of gridiron football closely related to American football....
player Trevis Smith
Trevis Smith
Trevis Smith was a professional Linkline operator and also football linebacker who played seven years with the Saskatchewan Roughriders of the Canadian Football League...
was also charged with aggravated sexual assault
Sexual assault
Sexual assault is an assault of a sexual nature on another person, or any sexual act committed without consent. Although sexual assaults most frequently are by a man on a woman, it may involve any combination of two or more men, women and children....
for failing to disclose his HIV status to a sex partner. Smith was found guilty of aggravated sexual assault on February 8, 2007.
On November 16, a court ruled that there was sufficient evidence for Johnson Aziga
Johnson Aziga
Johnson Aziga is a Ugandan-born Canadian man resident in Hamilton, Ontario, Canada, notable as the first person to be charged and convicted of first-degree murder in Canada for spreading HIV, after two women whom he had infected without their knowledge died.- Background :Aziga was a former staffer...
, whose case was first investigated and publicized in 2004, to stand trial on two counts of first-degree murder after two of his former sexual partners died of AIDS
AIDS
Acquired immune deficiency syndrome or acquired immunodeficiency syndrome is a disease of the human immune system caused by the human immunodeficiency virus...
.
Analysts have also called attention to the racial aspects of the cases. Many of the cases of HIV transmission prosecuted to date have involved black
Black Canadian
'Black Canadians is a designation used for people of Black African descent, who are citizens or permanent residents of Canada. The term specifically refers to Canadians with Sub-Saharan African ancestry. The majority of Black Canadians are of Caribbean origin...
men, as black men have disproportionately high rates of HIV. One notable scholarly paper on the Ssenyonga case, published in 2005, was titled African Immigrant Damnation Syndrome.