In August 2022, the Court of Appeal for Ontario overturned a woman’s conviction for one count of aggravated sexual assault in relation to HIV non-disclosure in the case of R. v. J.M. The initial 2013 conviction stemmed from a single act of condomless vaginal sex that occurred in 2011, at a time when the appellant had an undetectable viral load. The complainant did not contract HIV. The Court of Appeal recognized that the science in relation to HIV transmission had evolved since the appellant’s conviction and since the Supreme Court’s Mabior decision in 2012. On this basis, the Court allowed the appeal, set aside the conviction, and ordered an acquittal.
At trial, the judge found that the appellant was on antiretroviral treatment (“ART”) and her viral load was undetectable at dates closely before and after the sexual interaction with the complainant. Based on the expert evidence and applying the then-recent decision in R. v. Mabior and 2013 Ontario Court of Appeal decision in R. v. Felix, the trial judge found that the complainant’s consent was vitiated by fraud because the appellant did not disclose her HIV-positive status and a condom was not used. The trial judge concluded that there was a realistic possibility of HIV transmission from vaginal intercourse, despite the scientific evidence presented at trial, which indicated that the risk of transmission in these circumstances was extremely low.
Based on fresh expert evidence indicating that there was “zero risk [the appellant], who was being treated by ART and had an undetectable viral load at the time, would transmit HIV through a single act of condomless vaginal intercourse,” the Court of Appeal concluded there was no “realistic possibility” of HIV transmission in this case and overturned the appellant’s conviction. It is worth noting that the Crown consented to the admission of the fresh evidence, and joined the appellant’s request for the trial decision to be overturned, the conviction set aside, and an acquittal granted.
However, the Court refused to make a broader holding (beyond the specific circumstances of this case) that having a suppressed viral load and being on ART would negate a realistic possibility of transmission and thus preclude a duty to disclose one’s HIV status, citing procedural and substantive limits on the evidentiary record. Nonetheless, the Court stated:
“This decision should not be read as holding that the appellant’s circumstances — on ART with an undetectable viral load, for an extended period of time, and engaging in a single act of intercourse — are the only circumstances in which it would be open to a trial court to find that there was no realistic possibility of HIV transmission where a condom was not used. In particular, this is not a holding that the only circumstance in which consent will not be vitiated in the absence of disclosure or condom use is where a person’s viral load is undetectable… Mabior is clear that the implementation of the realistic possibility of transmission threshold can adapt to advances in scientific knowledge about HIV transmission and treatment and to risk factors other than those considered in Mabior. On a proper evidentiary record, it would be open to a trial court to find other circumstances in which there is no realistic possibility of transmission even in the absence of condom use…” [emphasis added]
The Court of Appeal held that in this case there was no realistic possibility of HIV transmission while engaging in a single act of vaginal sexual intercourse while on ART, and having a stable undetectable viral load, even if a condom was not used during intercourse.
Regrettably the Court was unwilling to recognize, as a matter of law, that there is no realistic possibility of HIV transmission with a suppressed viral load while on ART.
While this decision is a further acknowledgment that the Mabior standard is capable of evolving as scientific understanding about HIV transmission continues to grow, it is regrettable that the Ontario Court of Appeal did not seize the opportunity to set a new legal standard precluding prosecutions against people on ART with a suppressed viral load.
 R. v. J.M., 2022 ONCA 615 at para 19.
 Ibid, at para 40.