Canadian Coalition to Reform HIV Criminalization statement on COVID-19 and criminalization (April 27, 2020)
You may have seen below, there has been some momentum on ending unjust HIV-related criminal prosecutions in 2019. One new factor that complicates the work on this issue is, of course, the emergence of the COVID-19 pandemic. The Canadian Coalition to Reform HIV Criminalization recognizes there are both similarities and differences between the HIV and COVID-19 pandemics. But the Coalition is troubled by the hasty resort to criminalization and policing as a response to this latest public health challenge, and the particular effects on those who are already marginalized, surveilled, and criminalized. In some commentary and news reports, HIV criminalization has been cited as an example of how the criminal law could and should be similarly used to respond to COVID-19.
In light of these concerns, the Coalition has released a Statement on COVID-19 and Criminalization that addresses some aspects of this issue.
House of Commons Standing Committee of Justice and Human Rights has released its report “The Criminalization of HIV Non-Disclosure in Canada” on June 17, 2019. The report contains several important recommendations to limit the broad, unscientific and unjust use of the criminal law against people living with HIV. However, it left out certain important elements. Please see the statement issued by the Canadian HIV/AIDS Legal Network (“Legal Network”) for their analysis and follow-up recommendations.
The next step is actual legislative reform. The report makes clear that change to the criminal law is needed. Any new legal regime must avoid the harms and stigma caused by the law for too many years. In short, the law must be brought in line with science and human rights in a manner that is supportive of HIV care, treatment and prevention.
It’s important to demonstrate widespread support for change. You can help us end unjust HIV criminalization in Canada.
For many years, CLHE and others have been urging Ontario to cease contributing to the unjust criminalization of people living with HIV, and to bring the use of the law in line with science and human rights in a manner that is supportive of HIV-related care, treatment and prevention.
On World AIDS Day 2017 (December 1), on the same day that Justice Canada released a report entitled Criminal Justice System’s Response to the Non-Disclosure of HIV , Ontario finally moved in the proper direction: the Attorney General announced an updated directive ceasing prosecutions for alleged HIV non-disclosure to a sexual partner in cases where the person is on antiretroviral therapy and can demonstrate that their HIV has been “suppressed”.
While Ontario’s decision in December 2017 was welcomed, the new directive reflects but one of the minimum limits on prosecution called for by CLHE and others to end unjust prosecutions.
On December 8, 2018, the federal Attorney General, having listened to community concerns and acting on the recommendations on the earlier report from Justice Canada, issued a directive to federal Crown attorneys.
It is important to understand that the federal Attorney General’s directive only applies to federal prosecutors—and federal prosecutors only prosecute criminal offences in the three territories (Yukon, Northwest Territories and Nunavut). In the 10 provinces, it is provincial Attorneys General, and their provincial Crown attorneys, who prosecute criminal offences. Therefore, action is also required at the provincial level to directly govern the practice of prosecutions in the provinces, which is where the large majority of people, including with HIV, live in Canada.
It is essential that Ontario follow the federal government’s lead and issue updated directives in consultation with community organizations based on the federal government directive and CLHE recommendations. At the bare minimum, all provincial Attorneys General, including Ontario’s, should adopt the additional limits on criminal prosecutions that are found in the federal Attorney General’s directive to federal prosecutors.
In particular, directives must cease prosecutions where, based on medical and scientific evidence, there is no to negligible possibility of HIV transmission, including in cases of:
•anal or vaginal sex with a condom
•anal or vaginal sex without a condom while having a low viral load or while on treatment
•spitting and biting
For more information about the criminalization of HIV non-disclosure and the Campaign for Prosecutorial Guidelines, visit www.clhe.ca.
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 document, produced by the Canadian HIV/AIDS Legal Network , provides an overview of the current laws and policies governing HIV non-disclosure in Canada:
These VIDEOS produces by the Canadian HIV/AIDS Legal Network also help and answer many questions:
HIV criminalization : A summary of the criminalization of people living with HIV in Canada
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.
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; FAX: 416-340-7248
HALCO, 55 University Avenue, Suite 1400
Toronto, Ontario, Canada M5J 2H7
(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.