Our Reference #: MC-2017-7062
Thank you for your correspondence regarding criminal law and HIV. I would like to provide you with an update on recent developments.
As so many do on World AIDS Day, it is important to pause and remember all those who have lost their lives to HIV/AIDS and those living with it. We stand in solidarity with everyone impacted by this virus across Ontario and the world. We would like to recognize the dedicated individuals and organizations whose courageous work over the past decades has helped to reduce new HIV infections and improve the health and well-being of people affected by this virus. Medical treatment for HIV has advanced significantly in recent years and, with timely diagnosis and treatment, HIV is now a chronic, but manageable condition for many. It is important that Ontario’s laws and criminal justice system reflect those advancements.
On December 1, 2017, the federal government released its Report on the Criminal Justice System’s Response to Non-Disclosure of HIV, which includes the Public Health Agency of Canada’s scientific analysis on the sexual risk of HIV transmission. The scientific conclusions reflect the growing body of evidence that shows that there is no realistic possibility of transmission of HIV if a person is on antiretroviral therapy and has maintained a suppressed viral load for six months. Ontario endorses the Public Health Agency of Canada’s scientific analysis, which was included in the federal report.
"It is our hope that with this new report, federal Justice Minister Jody Wilson-Raybould will take immediate action and consider reforms to the Criminal Code to align with new scientific evidence and reduce the stigma of HIV/AIDS in Canada."
In R. v. Mabior, 2012 SCC 47, the Supreme Court of Canada held that in certain circumstances a failure to disclose one’s HIV status can be a criminal offence. The Supreme Court has held that a person has an obligation to disclose their HIV status to a sexual partner where there is a realistic possibility of transmission. The Court held that where a person had a low viral load and used a condom there was no realistic possibility of transmission and therefore no obligation to disclose. Accordingly, Crown Prosecutors in Ontario have not been proceeding with charges if laid in these circumstances; this position has not changed.
The Supreme Court further stated that scientific understanding of the risk of transmission, as well as advances in medical treatment, may evolve over time, and allowed for the law to evolve accordingly. Since Mabior, there have been significant advances in understanding the risk of transmission of HIV when a person is on antiretroviral therapy. Therefore, in light of the scientific consensus for cases where an individual has a suppressed viral load for six months, Ontario’s Crown Prosecutors will no longer be proceeding with criminal prosecutions.
This change is reflected in the ministry’s directive on Sexual Offences against Adults which is part of the new Crown Prosecution Manual: https://www.ontario.ca/document/crown-prosecution-manual/d-33-sexual-offences-against-adults. The updated directive is effective as of December 1, 2017.
Additionally, in early 2018, the Ministry of the Attorney General and the Ministry of Health and Long-Term Care will establish a joint roundtable with members from the HIV/AIDS community, health officials, and other stakeholders to hear their views on this important topic.
We will carefully monitor developments in HIV/AIDS case law and I am encouraging the federal government to share periodic updates to the scientific analysis conducted by the Public Health Agency of Canada with all provinces and territories.
It is our hope that with this new report, federal Justice Minister Jody Wilson-Raybould will take immediate action and consider reforms to the Criminal Code to align with new scientific evidence and reduce the stigma of HIV/AIDS in Canada. We join the Canadian Coalition to Reform HIV Criminalization in their request that the federal government examine potential law reform in this area, and would welcome an opportunity to participate in these discussions.
Thank you again for writing.