Thornton, knowing he had tested positive twice for HIV antibodies, donated blood to the Canadian Red Cross (CRC) without disclosing this to them. He was tried and convicted of a violation of s.180 of the Criminal Code. He appealed this decision to the Ontario Court of Appeal but his appeal was denied.
- Is there a legal duty for an individual to disclose they are HIV-positive when donating blood?
Lamer, writing for the court, held that s.216 of the Criminal Code imposed upon the appellant a duty of care in giving his blood to the Red Cross. This duty of care was breached by not disclosing that his blood contained HIV antibodies. This differed from the finding of the Court of Appeal who found a duty at common law.
An individual cannot be found guilty of a crime for violating a common law duty as laid out in s.9 of the Criminal Code; an individual must violate a duty imposed by statute.