Criminalization of HIV Non-Disclosure
UPDATE: 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.
Please note that the CHS does not have an official position on these two rulings at this time.
Find out more in the Canadian HIV/AIDS Legal Network's new resources:
▪ Full analysis
▪ Summary analysis (English only)
▪ Q&A for people living with HIV
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).
Given that a number of hemophiliacs have recently been charged and or prosecuted, the CHS has been following developments around this issue very closely.
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.
The CHS is very interested in hearing your views on this matter, answering questions and providing support to those who may be facing charges. Please feel free to contact Michel Long in confidentiality at firstname.lastname@example.org or 1-800-668-2686.
Key resources on criminal law and HIV
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. This Q&A document 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.
CRIMINAL LAW AND HIV
HIV Disclosure and the Law : A Resource Kit for Service Providers
A series of five info sheets on the criminalization of HIV non-disclosure in Canada - Updated May 2011
1. Criminalization of HIV non-disclosure: current Canadian law
2. Prosecutions under the Criminal Code
3. Does criminalizing HIV non-disclosure make sense?
4. Public health interventions and HIV prevention
5. Criminalization of HIV non-disclosure: issues for front-line workers
Follow this link to access the five info sheets produced by the Canadian HIV/AIDS Legal Network :
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
HALCO, 65 Wellesley Street East, Suite 400
Toronto, Ontario M4Y 1G7
(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
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
To learn more about this issue, please read this interesting article:
Criminalization confusion and concerns
NEW in 2012: The Oslo Declaration on HIV Criminalisation
Find out more about the reasons for the Oslo Declaration, and why HIV criminalisation is doing more harm than good to public health and human rights. You can also support the declaration by signing the declaration as an individual or an organization.