On World AIDS Day, after years of advocacy by community organizations, both the federal and Ontario governments recognized the need to limit the “overcriminalization of HIV” in Canada. Both took a first step toward by recognizing that criminal prosecution for alleged HIV non-disclosure is not warranted in the case where a person living with HIV had a “suppressed viral load,” because this is at odds with the science.
The federal Justice Minister released her department’s report, Criminal Justice System’s Response to Non-Disclosure of HIV. The report contains a number of important conclusions warranting a more limited application of the criminal law. It explicitly recognizes that HIV is first and foremost a public health matter, that the use of the blunt instrument of the criminal law should be a matter of last resort, that the application of the criminal law to HIV non-disclosure is likely to disproportionately affect Indigenous, gay and Black people. The report also recognizes that it is problematic, in at least some circumstances, to use the law of sexual assault to deal with allegations of HIV non-disclosure.
In Ontario, the province that has accounted for more than half the prosecutions against people living with HIV to date, the Attorney-General and the Minister of Health and Long-Term Care released a joint statement confirming that “HIV should be considered with a public health lens, rather than a criminal justice one, wherever possible.” Furthermore, Ontario’s Crown prosecutors will no longer proceed with criminal prosecutions for alleged HIV non-disclosure in cases where a person with HIV had maintained a “suppressed viral load” for six months (defined as being under 200 copies/ml ).
The federal report and the new Ontario directive to prosecutors are welcome first steps. But what is needed is deeper, broader reform.
As we head into 2018, the HIV community will seek concrete action by the federal and provincial governments to implement the recommendations set out in the Community Consensus Statement, released before World AIDS Day and endorsed by over 150 HIV and other community organizations across Canada.
Spearheaded by the Canadian Coalition to Reform HIV Criminalization, and developed through months of cross-country consultation, the statement shows clear consensus against the current overly broad use of the criminal law against people living with HIV and the urgent need for action from federal, provincial and territorial governments.
For the first time, the HIV community and other concerned organizations called upon the federal government to reform the Criminal Code. You can read the details of what reform is being asked for by downloading a copy of the Consensus Statement.
It is encouraging that Justice Canada’s report recommends that the criminal law should not apply to people who have a suppressed viral load. But the report also goes further, recommending that it should also not apply to people living with HIV who are on treatment, not on treatment but use condoms, or engage only in oral sex (unless other risk factors are present and the person living with HIV is aware of those risks). In all these circumstances, the “realistic possibility of transmission” test—the Supreme Court’s current legal test for requiring disclosure conviction—is likely not met.
Without concrete steps to match the announcements of the federal and Ontario governments on World AIDS Day, people living with HIV will continue to be prosecuted even in cases where such treatment is unjustified.
The HIV community should be heartened by recent events—developments that are very much welcome, but nowhere near enough. It is time that the federal and provincial Attorneys General match their words with action and work with stakeholders—people living with HIV, HIV organizations and service providers, women’s rights advocates and scientific experts—to limit the unjust use of criminal law, which discriminates against people living with HIV.
To find out more, and to make your voice heard, visit the Take Action page of the coalition website, where you can send your message to the federal and provincial Attorneys General, supporting the call for broader, deeper reforms.
The Canadian HIV/AIDS Legal Network and HIV & AIDS Legal Clinic Ontario (HALCO)