Thank you very much for asking me that question. I've been listening to this conversation hoping for the opportunity to weigh in.
In terms of the issue of intention, first of all, intention is nearly impossible to prove. Proving intention means proving the subjective state of mind of the individual at the time. If the requirement is to prove intention, we might as well completely decriminalize HIV non-disclosure because it will be near impossible for the Crown to prove intentional transmission.
Similarly, you gave a really excellent example of why intention alone is not a good enough standard. In that case where someone says, “No, I don't have HIV; thank you for asking” and proceeds to have sex without protection, that person might not want to transmit the virus but just is indifferent to whether they transmit the virus. We do see scope for some protection for people who have incurred some bodily harm, some interference with their bodily integrity as a result of the indifference of their sexual partner to their own physical health.
In terms of the requirement of transmission, I think that is a good way to balance between the concerns over what recklessness is and what will be defined as recklessness. As you mentioned, recklessness is defined in criminal law, and it would be a question of fact to be determined by every judge. It would be informed by the federal prosecutorial directive. It should be informed by the most recent science, the most up-to-date science. The requirement of transmission would also act as a proxy for having taken some steps. It would reduce the concerns around total over-criminalization while also providing some protection for people who have been denied the opportunity to make an informed choice about their own health and their own bodily integrity.
Since I have the floor here, I'll quickly talk about the issue of where in the criminal law it should be. I think that's a question for the committee to seriously sit down and look at, consider what exists in Canada's criminal law and think carefully about where it can be placed. There has been some suggestion that criminal negligence causing bodily harm might be a standard. The focus, in LEAF's submission, should be on transmission with some backup for recklessness where transmission did actually occur but the accused took some sort of reasonable steps to prevent transmission.