Criminalization of HIV Non‐Disclosure

/Criminalization of HIV Non‐Disclosure
Criminalization of HIV Non‐Disclosure2018-02-18T20:36:52+00:00

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.

 

On December 1, 2017, World AIDS Day, the Governments of Canada and Ontario made important announcements about limiting the criminalization of HIV non-disclosure. 

 

Government releases Report on the Criminality of HIV non-disclosure 

 

December 1, 2017 – Ottawa, ON – Department of Justice Canada

 

The Government of Canada is committed to ensuring that our criminal justice system protects Canadians, holds offenders to account, provides support to victims, meets the highest standards of equity and fairness, and respects the Canadian Charter of Rights and Freedoms.

 

Today, on World AIDS Day, the Honourable Jody Wilson-Raybould, Minister of Justice and Attorney General of Canada, released the Department of Justice Canada’s report entitled Criminal Justice System’s Response to the Non-Disclosure of HIV. The report represents a significant step forward in raising awareness and addressing concerns about the over-criminalization of HIV non-disclosure in Canada, which can discourage testing and treatment.

 

The report, developed in collaboration with the Public Health Agency of Canada, reaffirms that HIV is fundamentally a public health issue. It provides a comprehensive review of the most recent medical science on the risks of HIV transmission through sexual activity and shows how the criminal law deals with cases involving the non-disclosure of HIV-positive status prior to sexual activity.

 

Once a fatal infection, HIV is now considered to be a manageable condition, thanks to significant medical advances in HIV treatment. Sustained treatment substantially improves quality of life and prevents the transmission of HIV.

 

The report examines stakeholder perspectives, approaches taken in other countries, public health responses to HIV cases, and criminal justice responses to HIV non-disclosure and draws several conclusions from this overview. Together, it informs an evidence-based approach to addressing HIV non-disclosure in the criminal justice system.

 

The report will provide valuable assistance to the Minister of Justice as she continues to work with her provincial and territorial counterparts on the way forward. Based on its conclusions and observations, she will be reviewing existing charging and prosecution practices leading to the possible development of prosecutorial guidelines for federal prosecutors.

 

Quotes

“There has been significant progress in the treatment, management and prevention of HIV infection since the first World AIDS Day observed in 1988. I am pleased to release this report today on World AIDS Day. It clearly demonstrates that our criminal justice system must adapt to better reflect this progress as well as current scientific evidence on HIV-AIDS. Our Government is taking action to help reduce the stigmatization of persons living with HIV, including undertaking an evidence-based approach to addressing HIV non-disclosure in the criminal justice system.”
 
The Honourable Jody Wilson-Raybould, P.C., Q.C., M.P.
Minister of Justice and Attorney General of Canada 
 

 

“This report is critical to reducing HIV-related stigma in Canada. I will continue to work with my colleague, the Honourable Jody Wilson-Raybould, as well as with people living with HIV to reduce the stigma and discrimination they face, which can be barriers to prevention and treatment.”

 

The Honourable Ginette Petitpas Taylor, P.C., M.P.
Minister of Health‎

 

Quick Facts

• Canada’s efforts to detect and treat HIV have resulted in the majority of persons living with HIV in Canada knowing their status and receiving appropriate treatment.

 

• There is no HIV-specific offence in the Criminal Code. However, persons living with HIV who do not disclose their status are often charged with aggravated sexual assault because the non-disclosure is found to invalidate their partner’s consent to engaging in sexual activity in certain circumstances. This is the most serious sexual offence in the Criminal Code.

 

• The criminal law applies to persons living with HIV if they fail to disclose, or misrepresent, their HIV status prior to sexual activity that poses a realistic possibility of HIV transmission.

 

• As stated in the report, current research shows that sexual activity (with or without a condom) with a person living with HIV who is taking treatment as prescribed and has maintained a suppressed viral load (i.e., under 200 copies of HIV per ml of blood) poses a negligible risk of transmission. Across studies to date, there have been no confirmed cases of sexually transmitted HIV to an HIV-negative partner when the HIV-positive partner was continuously on antiretroviral therapy with sustained viral suppression.

 

Also on December 1, 2017, Ontario Attorney General Yasir Naqvi and Eric Hoskins, Ontario Minister of Health and Long Term Care, issued the following joint statement:

 

“On World AIDS Day, it is important to pause and remember all those who have lost their lives to HIV/AIDS, and stand in solidarity with everyone impacted by this virus across Ontario and the world.  We would like to recognize the dedicated individuals and organizations  whose courageous work over the past decades have helped to reduce new HIV infections and improve the health and well-being of people affected by this virus.  Medical treatment for HIV has advanced significantly in recent years and, with timely diagnosis and treatment, HIV is now a chronic, but manageable condition for many. It is important that Ontario’s laws and criminal justice system reflects those advancements.

 

Today the federal government released its report on the Criminal Justice System’s Response to Non-Disclosure of HIV, which includes the Public Health Agency of Canada’s scientific analysis on the sexual risk of HIV transmission. The scientific conclusions reflect the growing body of evidence that shows that there is no realistic possibility of transmission of HIV if a person is on antiretroviral therapy and has maintained a suppressed viral load for six months. Ontario endorses the scientific analysis included in the federal report and will review the report’s policy recommendations.

 

The Supreme Court of Canada has said that the scientific understanding of risk of transmission, as well as advances in medical treatment, may evolve over time, and allowed for the law to evolve accordingly. Therefore in light of the overwhelming scientific consensus for cases where an individual has a suppressed viral load for six months, Ontario’s Crown Prosecutors will no longer be proceeding with criminal prosecutions.

 

Additionally, in early 2018, we will establish a joint MAG and MOHLTC roundtable with members from the HIV/AIDS community, health officials, and other stakeholders to hear their views on this important topic.

 

We will carefully monitor developments in HIV/AIDS case law and I encourage the federal government to share periodic updates to the analysis conducted by the Public Health Agency of Canada with all provinces and territories.

 

It is our hope that with this new report, Minister Wilson-Raybould will take immediate action and consider reforms to the Criminal Code to align with new scientific evidence and reduce the stigma of HIV/AIDS in Canada. We join the Canadian Coalition to Reform HIV Criminalization in their request that the federal government examine potential law reform in this area, and would welcome an opportunity to participate in these discussions.

 

Ontario is investing an additional $2.7 million this year to further support the efforts of community HIV/AIDS programs. The province is also providing $980,000 for additional harm reduction outreach workers at 19 organizations across Ontario and an additional $3.4 million to improve access to harm reduction supplies across the province.

 

In September, our government also made anti-HIV drug, Truvada, and a generic version, more affordable by expanding the Ontario Drug Benefit program to include pre-exposure prophylaxis (PrEP). This will help more people access medication to decrease the risk of getting HIV and reduce rates of HIV across the province.  Starting January 1st, with the launch of OHIP Pharmacare for Children and Youth, everyone under the age of 25 will be able to access Truvada free of charge through their local pharmacy.

 

We believe strongly that HIV should be considered with a public health lens, rather than a criminal justice one, wherever possible. We must continue to work towards reducing the stigma and discrimination of people living with HIV/AIDS and their families.”

 

While the decision by Ontario to cease prosecutions against those with a suppressed viral load is a welcome first step, it is but one of the minimum changes that must take place. As indicated for many years, and as reflected in the recently released Community Consensus Statement endorsed by more than 150 organizations across the country, including the CHS, criminal prosecutions should be removed from the reach of sexual assault laws and be limited to cases of actual, intentional transmission of HIV. In particular, HIV-related criminal charges are not appropriate where a person living with HIV engaged in activities that, according to the best available scientific evidence, posed no significant risk of transmission, which activities include:
 – oral sex;
 – anal or vaginal sex with a condom; and
 – anal or vaginal sex without a condom while having a low viral load.

 

HALCO, the Canadian HIV/AIDS Legal Network, the Canadian Positive Peoples Network,  the Ontario Working Group on Criminal Law and HIV Exposure (CLHE), and the Canadian Coalition to Reform HIV Criminalization issued a joint statement

 

CLHE  also wrote to Ontario’s Attorney General and Minister of Health: www.halco.org/wp-content/uploads/2017/12/World_AIDS-Day_CLHE_letter.pdf.

 

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

______________________________________________

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

CHS endorsed the CCRHC Consensus Statement

 

On December 3rd, 2017, the CHS endorsed the Canadian Coalition to Reform HIV Criminalization (CCRHC) Community Consensus Statement. The statement calls on the federal, provincial and territorial governments to take specific actions to end unjust criminal prosecutions against people living with HIV.