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Criminalization of HIV Non-Disclosure

Tell Ontario’s Attorney General to stop unjust HIV-related prosecutions
February 1, 2017

People living with HIV continue to be charged with aggravated sexual assault — one of the most serious offences in Canada’s Criminal Code — even where there is no intent to cause harm, no transmission occurs and the risks of transmission are negligible if not zero. Canada’s Minister of Justice, and Attorney General of Canada, has denounced the overly broad use of the criminal law in Canada, acknowledging that “the over-criminalization of HIV non-disclosure discourages many individuals from being tested and seeking treatment, and further stigmatizes those living with HIV or AIDS.” So why does Ontario continue to unjustly prosecute people living with HIV?

Please click here to send a message to the attention of the Attorney General of Ontario, the Honourable Yasir Naqvi.
 
We would also like to enlist your help in spreading the word to your communities, by promoting the link in your network and via social media, using the following hashtag: #EndHIVCrim

A sample tweet might read: Tell @Yasir_Naqvi to stop the unjust prosecution of HIV non-disclosure. Send your message at http://clhe.ca/hiv-is-not-a-crime #EndHIVCrim

Together, we can make a difference. Let Ontario’s Attorney General know that Ontario must finally show leadership and end unjust prosecutions against people with HIV.

For more information about the criminalization of HIV non-disclosure and the Campaign for Prosecutorial Guidelines, visit www.clhe.ca.


HIV and Human Rights Organizations Welcome Federal Government’s Interest in Ending Unjust HIV Criminalization


By aidslaw  |  Published: December 1, 2016
 

TORONTO, December 1, 2016 — The Canadian HIV/AIDS Legal Network and the HIV & AIDS Legal Clinic Ontario (HALCO) welcome today’s statement by Canadian Minister of Justice Jody Wilson-Raybould recognizing the ongoing problem of overly-broad, unjust criminalization of people living with HIV. Today, fittingly for World AIDS Day, the federal government has signaled its intent to address a critical issue that has long been of concern to people living with HIV and human rights advocates across Canada, and that has also attracted international criticism. Minister of Health Dr. Jane Philpott has also met with us on this very issue, and has noted that HIV criminalization in Canada is both a problem and a priority for the government to address.

Minister Wilson-Raybould Issues Statement on World AIDS Day


December 01, 2016 (Ottawa, ON) - Department of Justice Canada

The Honourable Jody Wilson-Raybould, Minister of Justice and Attorney General of Canada, today issued the following statement:

World AIDS Day is a time to reflect on the impact that HIV/AIDS has had on Canadians, and to give thanks to the many dedicated people who work to prevent this disease and help people get the care and support they need.

It is also a time to recognize the tremendous medical advances that have been made since the first World AIDS Day was held in 1988. HIV treatment has slowed disease progression to the point that, for many, HIV infection can now be regarded as a chronic, manageable condition.

Still, the over-criminalization of HIV non-disclosure 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.

Over the coming months, I intend to work with my provincial and territorial counterparts, affected communities and medical professionals to examine the criminal justice system’s response to non-disclosure of HIV status. This could include a review of existing charging and prosecution practices, as well as the possible development of prosecutorial guidelines. I also look forward to working with Member of Parliament Randy Boissonnault, Special Advisor to the Prime Minister on LGBTQ2 issues, in his continued efforts to engage Canadians on important issues such as this one.

On World AIDS Day, we should all share in the commitment to reduce stigma and discrimination against those living with HIV or AIDS.




Supreme Court of Canada Decision

On October 5, 2012, the Supreme Court of Canada released its decisions in the cases of Mabior and D.C. The Court decided that people living with HIV have a legal duty, under the criminal law, to disclose their HIV-positive status to sexual partners before having sex that poses a “realistic possibility” of HIV transmission. Not disclosing in such circumstances means a person could be convicted of aggravated sexual assault.

The actual judgements can be consulted here: 

R. v. Mabior

R. v. D.C. 

According to the interveners involved in these two cases, ( Canadian HIV/AIDS Legal Network, HIV/AIDS Legal Clinic Ontario (HALCO), Coalition des organismes communautaires québécois de lutte contre le sida (COCQ-SIDA), Positive Living Society of British Columbia (Positive Living BC), Canadian AIDS Society (CAS), Toronto People with AIDS Foundation (PWA), Black Coalition for AIDS Prevention (Black Cap), Canadian Aboriginal AIDS Network (CAAN)), these decisions by the Supreme Court of Canada on HIV disclosure are a major step backwards for human rights and for HIV treatment and prevention.


CRIMINAL LAW AND HIV NON-DISCLOSURE IN CANADA: QUESTIONS AND ANSWERS

Under Canadian law, a person living with HIV may be guilty of a crime for not disclosing his or her HIV-positive status before engaging in certain activities. A series of info sheets produced by the Canadian HIV/AIDS Legal Network  provides general information regarding the state of Canadian criminal law with respect to HIV non-disclosure, and responds to related policy and public health concerns.

These VIDEOS produces by the Canadian HIV/AIDS Legal Network also help and answer many questions:

Sex, criminal law and HIV non-disclosure

Sex, criminal law & HIV non-disclosure: What is wrong with Canada's approach to HIV non-disclosure?


CRIMINAL LAW AND HIV


The Canadian HIV/AIDS Legal Network provides very comprehensive information about this topic on their website which they update regularly.

Check out these key
criminalization resources:
www.aidslaw.ca/criminalization,
www.aidslaw.ca/lawyers-kit, and
www.aidslaw.ca/community-kit for a more interactive experience.

For legal advice, referals and information, you may consult :

HALCO - HIV & AIDS Legal Clinic (Ontario)www.halco.org
HALCO can be contacted by:
Phone: 416-340-7790 or toll-free in Ontario: 1-888-705-8889
TTY: 416-922-2352 or toll-free TTY 1-866-513-9883
Mail/drop-in:
HALCO, 65 Wellesley Street East, Suite 400
Toronto, Ontario  M4Y 1G7
E-mail: talklaw@halco.org
(The Internet is not confidential. E-mails can be slow to arrive or can even be lost/filtered out by anti-spam programs. If possible, please contact them by phone.)
They have staff who speak French and Spanish, and they can arrange interpreters for other languages, but please call ahead for service in languages other than English.

In Quebec, you may consult:
Coalition des organismes communautaires québécois de lutte contre le sida (COCQ-SIDA)
1, Sherbrooke Street East
Montreal, Quebec  H2X 3V8
Phone: 514-844-2477
Fax: 514-844-2498
www.cocqsida.com
info@cocqsida.com

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Working Group on Criminal Law and HIV Exposure (CLHE)

The criminalization of HIV non-disclosure is one of the most pressing issues facing people living with HIV. To help address this issue, people living with HIV, community activists, AIDS service organization staff, lawyers and others have formed the Working Group on Criminal Law and HIV Exposure (CLHE).

The CHS supports the CLHE’s position that HIV/AIDS is an individual and public health issue first and foremost, and should be addressed as such. The CHS supports CLHE’s position that the increasing criminalization of HIV non-disclosure happened without sufficient debate and critique. To ensure that the criminal law will not be used inappropriately and/or in a discriminatory manner in cases involving allegations of HIV non-disclosure, the development of guidelines for police and criminal prosecutors is being examined. Police and prosecutors need guidelines to ensure that decisions to investigate and prosecute such cases are informed by a complete and accurate understanding of current medical and scientific research about HIV, and take into account the social contexts of living with HIV.


POSITION PAPER ON CRIMINALIZATION OF HIV DISCLOSURE

Notwithstanding that the Canadian Hemophilia Society (CHS) takes the position that it is the responsibility of the individual to disclose risks related to HIV and other transmissible diseases, the CHS has officially endorsed the POSITION PAPER ON CRIMINALIZATION OF HIV DISCLOSURE ( produced by the Ontario Working Group on Criminal Law and HIV Exposure (CLHE)) at its Board meeting held in Ottawa May 9 & 10, 2009.

POSITION PAPER ON CRIMINALIZATION OF HIV DISCLOSURE