Many people living with HIV in Canada live in fear of potential unfair criminal prosecutions. Their future is finally looking a little brighter.
In a statement that mostly flew under the radar, Minister of Justice Jody Wilson-Raybould declared, on World AIDS Day (December 1), her government’s intention “to examine the criminal justice system’s response to non-disclosure of HIV status,” recognizing 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.”
Wilson-Raybould also stated that “the [Canadian] criminal justice system must adapt to better reflect the current scientific evidence on the realities of this disease.”
This long-overdue statement was the first from the government of Canada on this issue since 1998, the year the Supreme Court of Canada released its decision on R v. Cuerrier, the first case to reach the high court on the subject.
In a subsequent 2012 decision, the Supreme Court changed the legal threshold by establishing a duty to disclose before sex that could pose a “realistic possibility” of HIV transmission.
In effect, the law was actually made harsher. In defining this new standard, the Supreme Court and most other courts, police and Crown prosecutors failed to properly consider current scientific evidence about transmission risks, which are far lower than most understand – especially when a condom is used or an HIV-positive partner has a low or undetectable viral load, usually as a result of effective treatment. It is now well established that HIV treatment not only allows people to live a long and healthy life, but also prevents new infection.
Wildly diverse interpretations of the law, however, have ended in people being convicted of aggravated sexual assault and going to prison for engaging in sex that in reality posed negligible to no risk to their partners.
Simple disclosure was thought to be an easy fix. But when being HIV-positive can still mark a person for overt discrimination and physical violence, disclosure remains anything but simple, especially for those on whom criminalization has a disproportionate impact: women, Indigenous peoples, migrants and members of African/Caribbean/Black communities.
Wilson-Raybould’s commitment to exploring change is important. Federal and provincial governments must take action to limit the scope and application of the criminal law in cases of HIV non-disclosure, in keeping with best practices and international recommendations. Canada is out of step with human rights principles and the broad scientific consensus surrounding HIV.
The use of the criminal law should be limited to cases of intentional transmission of HIV. Given what we know from science, in no circumstances should the criminal law be used against people living with HIV who use a condom, practise oral sex or have condom-less sex when they have a low or undetectable viral load.
We also need to do away with the practice of laying sexual assault charges in cases of HIV non-disclosure. It is misguided to equate HIV non-disclosure with the force and threats that normally define our understanding of sexual assault. Labelling people living with HIV as sex offenders is a stigmatizing misuse of this law.
In practical terms, there are some important ideas that the minister, and her provincial counterparts who are responsible for enforcing the law, can act on right now.
First, we’re calling for an immediate moratorium on all prosecutions in cases of HIV non-disclosure (unless there is alleged intentional transmission of HIV) while we’re exploring law reform options and working with the provinces to establish much-needed prosecutorial guidelines to limit the current misuse and overextension of the criminal law.
Second, the responsibility to recognize that things have gone seriously awry with our criminal justice system does not stop with the feds. Provincial attorneys general should immediately publicly state their commitment to ending the overly broad application of the criminal law in cases of HIV non-disclosure.
Third, we need ongoing meaningful dialogue that must always include people living with HIV, human rights advocates and scientific experts.
The minister’s commitment is one New Year’s resolution that we need to see come to fruition in 2017.
Cécile Kazatchkine is a senior policy analyst with the Canadian HIV/AIDS Legal Network. Ryan Peck is executive director of the HIV & AIDS Legal Clinic Ontario. Both are active members of the Ontario Working Group on Criminal Law and HIV Exposure (clhe.ca).