The news on the Canadian criminalization front explained – part two

Published 15, Dec, 2017
Author // Bob Leahy - Publisher

Last week Bob Leahy explained the impact of the ground-breaking December 1 announcements that sought to ease the laws surrounding non-disclosure of HIV. Today he looks at the mixed community reaction to those announcements

The news on the Canadian criminalization front explained – part two

Go here to read part one.

Background: The announcements last week required careful messaging, walking a tightrope between acknowledging progress while recognizing they fell well short of what community activists had asked for.

The Federal Justice Minister had, after all, talked about the “over criminalization” of HIV.

The Department had also paid homage to the science. “The criminal law should not apply to persons living with HIV who have engaged in sexual activity without disclosing their status if they have maintained a suppressed viral load (i.e., under 200 copies per ml of blood), because the realistic possibility of transmission test is not met in these circumstances. A person living with HIV who takes their treatment as prescribed is acting responsibly.” All this is good.

Ontario followed suit with an announcement that its Crown attorneys would no longer prosecute cases of HIV-positive people who do not disclose they have HIV if they have had a “suppressed” viral load for six months. Whether this is good is a moot point. Those who are suppressed will likely feel relief. Those who are not suppressed, or advocate for them, will be concerned.

This article looks at how various observers handled the difficult task of providing balanced coverage with sufficient nuance that neither side felt offended or left out.

What people said: The statement from a coalition headed by the Canadian HIV/AIDS Legal Network, a trusted source on all matters involving HIV and the law, walked the tightrope well. Its header told the story: “AN IMPORTANT, MODEST ADVANCE ON WORLD AIDS DAY, Federal and Ontario governments take first steps toward limiting unjust HIV criminalization, but must work with community and experts to go further.” It added, “The announcement today by the Attorney General of Ontario falls well short of this, as it only commits to refraining from prosecutions in cases where someone has a suppressed viral load... However, it remains that case that prosecuting HIV non-disclosure as sexual assault is misguided and damaging, not only to people living with HIV but also to the integrity of the law of sexual assault. We therefore welcome Justice Canada’s conclusion that, in the absence of intent to transmit HIV to a sexual partner, sexual offences are not appropriate. As declared in the Community Consensus Statement released earlier this week, HIV non-disclosure must be removed from the reach of sexual assault law.” More on the consensus statement in a moment.

ACT (formerly the AIDS Committee of Toronto) released a statement December 4A Step Away from Stigmatizing and Ineffective HIV Non-Disclosure Laws. It too had encouraging words. “Progress was made on World AIDS Day 2017 that begins to move Canada away from unscientific, stigmatizing, and harsh laws surrounding HIV non-disclosure.” But it went further in describing the position of some community activists concerned about those who aren’t undetectable. “We must not allow a division between people living with HIV to take shape” said the statement. “People who face barriers to care and lack access to treatment should not be further punished with the threat of criminalization.”

CTAC, in a Facebook post, echoed the sentiments and words of others calling the announcements “a step in the right direction” but then showed just what a difficult topic this has become to appease all sides. “While these announcements are a step in the right direction” said the announcement, “we at CTAC, as a national organization whose role is to advocate for the rights of all people living with HIV, believe this piecemeal approach to the criminalization of HIV non-disclosure will widen the divide among people who are already marginalized through inequitable policies.”

CTV, a mainstream Canadian TV broadcaster also covered both sides of the fence. In a December 4 story headlined “HIV-positive community says Ont. ruling is first step of long process.” it quoted community activists both pleased and wary. (It also used the “step in the right direction” language disputed by some.) It goes on to quote Jeff Potts, Executive Director of the Canadian Positive People Network (CPPN) as saying there are downsides to the ruling as well. Potts told CTV News that decriminalizing only people with low viral loads means the community will be divided between people who are fortunate enough to get the medical treatment they need, and marginalized people who are not. “At the end of the day, laws that criminalize people living with HIV for any reason, unless it can be proven there was intentional harm, are unjust….They don't make sense, they don't keep up with the science, it does nothing more than perpetuate stigma and further marginalize people who live with HIV." Potts said that some people will see this as a wrong step because of that division, but acknowledged that it's important that the government has shown it understands there's a conversation that needs to happen.

What does think? This situation calls for nuanced language that recognizes movement forward, but in the case of Ontario at least, it has been to a place where we did not want to land. Does anybody, after all, really want only the virally suppressed to be free of the threat of prosecution for non-disclosure? Did anybody really want two classes of people living with HIV - one who can be prosecuted for non-disclosure and one who can’t? Certainly not and certainly not the U=U campaign.

Turn to the consensus statement which signed on to. It outlaws criminalization of HIV non-disclosure. We didn’t get that, of course, so hold the applause. Moreover, the Ontario position in particular discriminates against those unable to reach undetectable, often the most marginalized in our society. That’s very unwelcome. It’s hard to reconcile “step in the right direction” language with a step which further marginalizes the marginalized.

The Prevention Access Campaign, a community-led initiative responsible for U=U, has long opposed further stigmatization of those who are unable to reach undetectable status. It says thus “Community partners agree that treatment is a personal choice, that treatment is first and foremost for personal health, that there are unjust barriers to accessing treatment, that not all people living with HIV will achieve an undetectable viral load, and there is no place for stigmatizing anyone living with HIV at any viral load.” So while the campaign made it clear they welcomed the new science of transmission risk to be applied in individual cases, the campaign was opposed to laws which made the distinction between the detectable and the undetectable. supports that position also.

Bottom line is that is more cautious than most about welcoming what went down December 1. That’s not to say that we don’t acknowledge the incredible hard work of community activists in getting one step closer to decriminalization of HIV non-disclosure. That’s what we all want. But on the way to getting there, we have landed in a hard place. Let’s hope our stay there is a temporary one.

About the Author

Bob Leahy - Publisher

Bob Leahy - Publisher

Award-winning blogger Bob Leahy first made his social media mark a decade ago on where there are still to this day almost 3,000 entries of his available to be read. He was a featured blogger on Ontario’s campaign, along with founder Brian Finch. He joined at its inception in 2009 and became it's Editor a year later.

Born in the UK, Bob’s background is in corporate banking, which he gladly left in 1994, after being diagnosed with HIV the previous year.  He has chaired the board of PARN (Peterborough AIDS Resource Network) and has been an executive board member of both the Ontario HIV Treatment Network (OHTN) and the Canadian AIDS Society (CAS).  He was inducted in to the Ontario AIDS Network’s Honour Roll in 2005.  Bob is currently a member of Ontario’s GMSH (Gay Men’s Sexual Health Alliance). He also writes for

In 2012, Bob was honoured with the Queen Elizabeth II Diamond Jubilee medal for his work and commitment to HIV/AIDS in Canada.

Bob continues to write for this site while in the Positivelite.Com editor’s seat, with a particular interest  in HIV prevention, theatre and the arts in general. He is accredited media for a number of Toronto theatres. He lives in Warkworth, Ontario with his partner of thirty-two years and three dogs.