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Bill C-406

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2nd Session, 35th Parliament,
45-46 Elizabeth II, 1996-97

The House of Commons of Canada

BILL C-406

An Act to amend the Criminal Code, the Corrections and Conditional Release Act and the Immigration Act, to provide for new offences related to the spread of HIV and AIDS and to require mandatory testing of inmates of a penitentiary and immigrants for sexually transmitted diseases in order to reduce the spread of disease

      Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

R.S., c. C-46; R.S., cc. 2, 11, 27, 31, 47, 51, 52 (1st Supp.), cc. 1, 24, 27, 35 (2nd Supp.), cc. 10, 19, 30, 34 (3rd Supp.), cc. 1, 23, 29, 30, 31, 32, 40, 42, 50 (4th Supp.); 1989, c. 2; 1990, cc. 15, 16, 17, 44; 1991, cc. 1, 4, 28, 40, 43; 1992, cc. 1, 11, 20, 21, 22, 27, 38, 41, 47, 51; 1993, cc. 7, 25, 28, 34, 37, 40, 45, 46; 1994, cc. 12, 13, 38, 44; 1995, cc. 5, 19, 22, 27, 29, 32, 39, 42; 1996, cc. 7, 8, 16, 19, 31, 34

CRIMINAL CODE

1. The Criminal Code is amended by adding the following after section 221:

Definitions

221.1 (1) In this section

    (a) ``infecting act'' means any of the following acts, whether or not carried out using measures that may or do reduce the risk of infection:

      (i) sexual intercourse:

      (ii) any form of physical contact whether or not sexual, whereby the body fluids of a person may be transmitted to the blood stream of another person;

      (iii) the donation of blood or any other body fluid, body substance or organ;

      (iv) a person using a thing and subsequently permitting another person to use the thing in a manner whereby the body fluid or HIV infection of the person may be transmitted to the other person; or

      (v) any other act that the court considers that the person knew was capable of transmitting HIV to another person;

    (b) ``HIV'' means human immunodeficiency virus; and

    (c) ``AIDS'' means acquired immune deficiency syndrome.

(2) Every one who knows or should reasonably know that he has tested positive for HIV or has AIDS and who wilfully or recklessly commits a infecting act is:

    (a) if the infecting act is shown to have resulted in the transmission of HIV to another person, guilty of the offence of criminal infection and liable to imprisonment for a term not exceeding twenty-five years; and

    (b) if the infecting act is not shown to have resulted in the transmission of HIV to another person, guilty of the offence of reckless infective behaviour and liable to imprisonment for a term not exceeding seven years.

Defence of consent

(3) The consent of a person to an infecting act being carried out by the person charged under subsection (2) is not a defence unless it is a prior informed consent as described in subsection (4).

Prior informed consent

(4) For the purposes of subsection (3) a consent is a prior informed consent if

    (a) on a day prior to the day the infecting act is committed, the infected person has informed the other person explicitly that he has tested positive for HIV or has AIDS, as the case may be;

    (b) on a day prior to the day the infecting act is committed and after the information mentioned in paragraph (a) has been given, the infected person and the other person have agreed that they will engage in a specified infecting act and agreed on the precautions that will be taken by each of them in engaging in the infecting act;

    (c) on a day prior to the day the infecting act is engaged in, the other person has given explicit consent, orally or in writing, to the proposed act being engaged in and the precautions that are to be taken and agreed that the infected person will have no legal liability for the medical or financial consequences to the other person, of them engaging in the infecting act;

    (d) the infected person has satisfied himself by questioning the other person, that the other person

      (i) understands the risk and likelihood of the infecting act infecting the other person and the degree of protection offered by the agreed precautions, and

      (ii) is aware of the information on infection resulting from engaging in an infecting act with a person infected with HIV and AIDS and methods of protection from infection and their effectiveness published by the Government of Canada or a province;

    (e) the infecting act engaged in was only the act to which the consent was given;

    (f) the precautions taken were the precautions specified in the consent;

    (g) the consent was not obtained, or its withdrawal or modification prevented by duress, false information or withholding of information related to infection by the infected person or any other person acting with the knowledge of the infected person;

    (h) the consent was not withdrawn or modified after it was given and before the act was committed.

Interpreta-
tion

221.2 (1) In this section, ``designated offence'' means

    (a) an offence under any of the following sections unless the circumstances of the offence were such that it would have been impossible for any bllod, semen or any other body fluid capable of transmitting HIV or AIDS was or could have been transmitted from the offender to the victim of the offence:

      (i) section 152 (invitation to sexual touching);

      (ii) section 152 (sexual exploitation);

      (iii) section 154 (incest);

      (iv) section 159 (anal intercourse);

      (v) section 265 (assault);

      (vi) section 267 (assault with a weapon);

      (vii) section 268 (aggravated assault);

      (viii) section 269 (unlawfully causing bodily harm);

      (ix) section 269 (torture);

      (x) section 270 (assaulting a peace officer);

      (xi) section 271 (sexual assault);

      (xii) section 272 (sexual assault with a weapon);

      (xiii) section 273 (aggravated sexual assault);

    (b) an offence under section 221.1; or

    (c) any other offence in the commission of which any blood, semen or any other body fluid capable of transmitting HIV or AIDS was or could have been transmitted from the offender to the victim of the offence.

Person convicted must be tested

(2) Where a person is convicted of a designated offence, the judge shall order that the offender must be tested for HIV and for AIDS, and authorize the use of such force as may be necessary to collect the substances needed for the test from the offender, and order that

    (a) the offender,

    (b) the victim,

    (c) any person who has or will have custody of the offender for any purpose related to the offence, and

    (d) any Crown prosecutor who is preparing to prosecute the offender for a subsequent offence alleged to have been committed after the date of the offence for which the conviction resulted in the test, in any case where there are reasonable grounds to believe that the subsequent offence was a designated offence in which a victim may have been infected.

be promptly advised of the result of the test.

Person charged may be tested

(3) Where a person is charged with a designated offence, the Crown may make an application to the judge for an order that the accused be immediately tested for HIV or AIDS and the judge, having heard the application and having given the accused the opportunity to make representations to the court on the matter, and on being satisfied that there are reasonable grounds for believing that the person committed a designated offence and may be infected with HIV or AIDS, and testing for HIV or AIDS and giving the results to the persons mentioned in paragraphs (a) to (c) is justifiable to protect those persons, the judge may order that the person charged be immediately tested for HIV or AIDS, and authorize the use of such force as may be necessary to collect the substances needed for the test from the offender, and order that

    (a) the accused,

    (b) any person alleged to have been a victim of the designated offence of which the accused is charged,

    (c) any person who has or will have custody of the offender for any purpose related to the alleged offence, and

    (d) any Crown prosecutor who is preparing to prosecute the offender for a subsequent offence alleged to have been committed after the date of the offence for which the conviction resulted in the test, in any case where there are reasonable grounds to believe that the subsequent offence was a designated offence in which a victim may have been infected.

be promptly advised of the result of the test.

Counselling and treatment

(4) A judge who orders testing under subsection (2) or (3) shall order that, if any test is positive, that the victim of the offence or alleged offence, and the accused or the offender, as the case may be, receive counselling in the prescribed form on the disease involved, its transmission, its and methods of prevention of transmission and be advised on treatment for the disease.

Right to take samples

(5) A person carrying out an order of a judge under subsection (2) or (3) may take samples from the offender or the accused of an body fluid or body tissue that are reasonably necessary to carry out the test, if necessary by force, whether or not the accused or offender consents to the taking.

Test results as evidence

(6) The result of a test referred to in subsection (2) or (3) is admissible as evidence in a trial of the offender for any offence under section 221.1.

CORRECTIONS AND CONDITIONAL RELEASE ACT

1992 c. 20

2. Section 4 of the Corrections and Conditional Release Act is amended by replacing paragraph (e) with the following:

    (e) that offenders retain the rights and privileges of all members of society, except those rights and privileges that are necessary removed as a consequence of the offence and for the protection and health of inmates and staff members;

3. Section 40 of the Act is amended by adding the following after paragraph (h):

    (h.1) engages in sexual intercourse or sexual touching in any form involving physical contact with another inmate;

4. The Act is amended by adding the following after section 57:

Sexually transmitted diseases

Interpreta-
tion

57.1 In sections 57.2 to 57.6, ``sexually transmitted disease'' means syphillis, gonorrhoea, HIV, AIDS and any other disease that is prescribed by the regulations for the purposes of this section.

Sexually transmitted disease tests

57.2 Every inmate shall be tested by the prescribed procedure for sexually transmitted diseases.

    (a) on becoming an inmate;

    (b) on being transferred from one penitentiary to another;

    (c) from time to time after the prescribed time period; and

    (d) at any time that the inmate has been charged with an offence under the Criminal Code or under this Act that was committed while being an inmate, and the head of the institution in which the inmate is in custody believes that a test is warranted to protect the inmate, other inmates and any person who may come into contact with the inmate.

Results give to others

57.3 The institutional head of the institution in which the inmate is in custody shall communicate the result of every test carried out pursuant to section 57.2 to:

    (a) the inmate;

    (b) the head of any institution to which the inmate is to be transferred; and

    (c) if the inmate is likely to have any contact that could reasonably result in the transmission of a sexually transmitted disease, with members of the inmate's family or other members of the public, to any such persons known to the head.

Consent not necessary

57.4 Section 88(1) does not apply to a test under section 57.2.

Counselling

57.4 The head of every institution shall arrange for the staff and inmates of the institution to receive information, advice and instruction on sexually transmitted diseases and the means of avoiding transmission.

Segregation

57.5 All inmates found to have a sexually transmitted disease shall be housed, fed, exercised and for all purposes kept in a separate institution dedicated to their health, safety, counselling, treatment and cure.

Treatment

57.6 An inmate found to have a sexually transmitted disease shall be offered treatment for the disease and may be required to receive treatment for the disease, using reasonable force if necessary, if, in the opinion of the head of the institution the treatment is necessary for the protection of the health of the staff at the institution and the other inmates.

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