Criminalization of HIV Non-Disclosure in Canada

By: The Canadian HIV/AIDS Legal Network 

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In Canada, people living with HIV can be charged and prosecuted for not disclosing their HIV-positive status to a sexual partner in some circumstances. What does disclosure to a sexual partner look like? The act of disclosing one’s HIV status means telling someone you are having sex with that you are HIV-positive. This can include anyone with whom you have a sexual relationship, including your spouse, a regular sexual partner, or someone you might have sex with only once.

In 2012, the Supreme Court of Canada ruled that a person living with HIV has a legal duty to disclose their HIV-positive status before having sex that poses a “realistic possibility of transmission.” The Court determined that using a condom and having a low or undetectable viral load (the amount of HIV in a person’s blood) negated “a realistic possibility of transmission of HIV.” More than 180 people have been charged to date with HIV non-disclosure.

In Canada, people who face criminal charges related to HIV non-disclosure are typically charged with aggravated sexual assault, one of the most serious offences in the Criminal Code. People living with HIV have been charged even if they had no intention to transmit HIV, engaged in behaviours that posed little or even no risk of transmission, and did not in fact transmit HIV to their sexual partners.

The current, overly-broad use of the criminal law increases stigma and discrimination against people living with HIV, spreads misinformation about HIV, undermines public health initiatives and ultimately leads to human rights violations. When people living with HIV still experience overt discrimination and physical violence, disclosure is not easy, especially for those on whom criminalization has a disproportionate impact: women, Indigenous people, migrants and members of the African, Caribbean and Black communities. Furthermore, by equating HIV non-disclosure with aggravated sexual assault, Canadian law harms both people living with HIV and survivors of sexual violence.

But we’ve seen some positive developments in recent years.

In 2014, more than 75 prominent Canadian medical experts signed an important consensus statement, which has been an important tool for advocates and has since been used by defense lawyers representing people living with HIV, judges and scientific experts testifying in court with some positive impacts already emerging.

On World AIDS Day (December 1, 2016), federal Minister of Justice Jody Wilson-Raybould made a historic statement acknowledging the problem of the over-criminalization of HIV non-disclosure and the need for the criminal justice system to adapt to better reflect the current scientific evidence on HIV transmission. Federal Minister of Health Dr. Jane Philpott, echoing this sentiment, has noted that HIV criminalization in Canada is both a problem and a priority for the government to address.

More recently, the Ontario Working Group on Criminal Law and HIV Exposure has called for an immediate moratorium on all prosecutions in cases of HIV non-disclosure while exploring law reform options and working with the province to establish much-needed prosecutorial guidelines to limit the current misuse and overextension of the criminal law. Since Canada’s Minister of Justice, and Attorney General of Canada, has denounced the overly broad use of the criminal law in Canada, why does Ontario continue to unjustly prosecute people living with HIV? Tell Ontario’s Attorney General, the Honourable Yasir Naqvi, to stop unjust HIV-related prosecutions: click here to send your message.

Here’s hoping that both federal and provincial attorneys general listen and take action.

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