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The Supreme Court of Canada has ruled that consent to sexual activity can be considered null and void if the accused person failed to disclose, or lied about, his or her HIV status. The Crown must also prove the person would not have consented to sex if he or she had been aware of the HIV status.

That can lead to a charge of aggravated sexual assault — the most commonly applied, although there have been others — so long as the sexual contact has either transmitted the virus to the complainant, or put them at significant risk of contracting it.

The high court clarified in 2012 that this would not apply if someone uses a condom and also has a “low viral load,” but advocates argue the law has fallen far behind the science on the level of risk.

The Canadian HIV/AIDS Legal Network has counted at least 184 people — involving 200 cases — who faced charges for offences related to HIV non-disclosure in Canada between 1989 and 2016, with the majority of them occurring since 2004.

Speaking on the condition of anonymity, a source familiar with the file said the discussion in Vancouver will be about making sure everyone has a clear understanding of the impact of how things are being done now.

Since provinces are responsible for the administration of justice when it comes to the Criminal Code, many of the potential solutions — such as issuing prosecutorial guidelines on how to handle allegations of HIV non-disclosure — would be within their jurisdiction.

Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network, said he is encouraged the issue has been put on the agenda as a problem that needs to be solved.

“That’s the first step — we’ve got to recognize that there is a problem,” said Elliott.

“I hope that we can get at least a critical mass of provincial attorneys general also recognizing that there is a problem,” he said.

“I think that is still a work in progress.”

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