People living with HIV continue to be charged with aggravated sexual assault – one of the most serious offences in Canada’s Criminal Code, designed to respond to the most horrific of forced sex acts — which carries a maximum penalty of life imprisonment and designation as a sex offender.
These prosecutions are happening even in circumstances where:
(i) sexual behaviour is consensual;
(ii) there is negligible to no risk of HIV transmission;
(iii) there is no intention to transmit HIV; and
(iv) transmission does not occur.
However, the problematic nature of the current use of the criminal law is finally being recognized by government. As we reported in our Autumn/Winter 2016 newsletter, on December 1, 2016, after many years of silence, the federal government is speaking up.
In a World AIDS Day 2016 statement, federal Minister of Justice Jody Wilson-Raybould stated, “[T]he over-criminalization of HIV nondisclosure discourages many individuals from being tested and seeking treatment, and further stigmatizes those living with HIV or AIDS. Just as treatment has progressed, the criminal justice system must adapt to better reflect the current scientific evidence on the realities of this disease.”
Further, the Minister committed to working with provincial and territorial counterparts, medical professionals and affected communities to examine this issue. To date, the federal government has consulted with the HIV community, including through a meeting with the Canadian Coalition to Reform HIV Criminalization.
In addition, HALCO and the Canadian HIV/AIDS Legal Network provided the federal government with a brief, “Exploring Avenues to Address Problematic Prosecutions Against People Living with HIV in Canada”, which is available on our website. In March 2017, a meeting took place between the federal government and provincial and territorial counterparts to discuss this issue.
At the same time, the Ontario Working Group on Criminal Law and HIV Exposure (CLHE) continues to advocate for change at the provincial level. Currently, CLHE is requesting that Ontario Attorney General Yasir Naqvi:
1. Impose an immediate moratorium on all HIV non-disclosure prosecutions, unless there is alleged intentional transmission of HIV, while law reform options are being explored and sound prosecutorial guidelines are being developed – in conjunction with the community – to limit the current misuse and overextension of the criminal law.
2. Publicly state that the Ontario Ministry of the Attorney General is committed to ending the overly broad application of the criminal law in cases of alleged HIV non-disclosure and to reviewing Ontario’s approach to these prosecutions.
3. Engage in meaningful dialogue with CLHE as well as people living with HIV and scientific experts when developing prosecutorial guidelines and other responses to this issue.
Send an email to the Attorney General here.
For more information about CLHE, see here.
If you are facing HIV-related criminal charges in Ontario, please contact HALCO right away for free legal advice.
HIV Criminalization in Canada: Key Trends and Patterns is a new report from the Canadian HIV/AIDS Legal Network that provides a snapshot of the temporal and demographic patterns of HIV criminalization in Canada from 1989 to 2016. It also updates information on the outcomes of HIV non-disclosure criminal cases. The report authors are Colin Hastings, Cécile Kazatchkine and Eric Mykhalovskiy.
You can access the report on the Canadian HIV/AIDS Legal Network website.
Canada’s top HIV researchers and the Canadian Association for HIV Research Board of Directors endorsed an important statement to express their deep concern about the ongoing, overly broad use of the criminal law in HIV non-disclosure cases. The statement can be accessed in either English or French.
This article previously appeared in HALCO's Spring 2017 newsletter, here.