Criminalization of HIV Non-Disclosure
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.
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/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
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
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