Ontario limits criminal prosecutions of HIV positive people for non disclosure

FILE: The province’s attorney general and health minister announced today that Ontario Crown attorneys will no longer be pursuing criminal cases against people who have had a suppressed viral load for six month. (Photo: HIVepicenter Philippines/Facebook)

TORONTO — Ontario says it will be restricting criminal prosecutions of HIV-positive people who don’t disclose their status to sexual partners.

The province’s attorney general and health minister announced today that Ontario Crown attorneys will no longer be pursuing criminal cases against people who have had a suppressed viral load for six months.

Non-disclosure has led to assault or sexual assault charges, because it’s been found to invalidate a partner’s consent — current wisdom suggests that if they knew a person had HIV, they wouldn’t consent to sexual activity because of the risk of transmission.

The federal government released a report today, to coincide with World AIDS Day, saying existing laws aren’t being applied consistently across the criminal justice system to people who don’t disclose their HIV status.

Ontario Attorney General Yasir Naqvi and Health Minister Eric Hoskins say in recent years medical treatment for HIV has advanced significantly to the point that it can be a chronic but manageable condition, and the province’s laws should reflect that.

They say there is a growing body of evidence that there is no realistic possibility of transmission of HIV if a person is on antiretroviral therapy and has had a suppressed viral load for six months.

The federal Justice Department study pulled together scientific evidence and the current prevalence of HIV in Canada and treatment, and stacked it up against the way the criminal justice system currently handles cases of people who don’t disclose their HIV status prior to engaging in sexual activity.

Current science suggests the risk of transmission is basically negligible if those living with HIV are being treated or taking appropriate precautions, the study concluded.

“It can, therefore, no longer be assumed that a person living with HIV in Canada is at risk of transmitting it.”

But the law is not being applied consistently in that regard throughout the country, and the way it is being used needs to take into account a range of factors, including the scientific risks of transmission and degree of blameworthiness. For example, the study noted, not everyone has equal access to HIV treatment or other services to help them manage the risks.

While the study’s publication coincides with World AIDS Day, it also follows a landmark apology in the House of Commons this week for past state-sanctioned discrimination against the LGBTQ community in Canada.

The milestone saw many advocates raise concerns about the current regime of criminalization of the non-disclosure of HIV, noting it had been a year since Justice Minister Jody Wilson-Raybould had promised to look into it and consider providing better guidance to prosecutors.

But she only has control over federal prosecutions and while she’ll use the results of the report to develop guidelines, it remains to be seen whether other provinces will follow suit.

The Canadian Coalition to Reform HIV Criminalization had issued a statement earlier this week, endorsed by more than 150 organizations, urging the Liberal government to go beyond guidelines and also reform the Criminal Code so sexual assault charges can’t be used.

The Justice Department report said while criminal law reform could result in greater legal certainty but there are other issues.

“Law reform impacts the scope of the criminal law, not decisions about how to address cases that fall within that scope,” the report said. “Moreover, law reform may require enacting HIV-specific provisions, which many stakeholders have opposed on the basis that this would increase the stigma experienced by persons living with HIV.”

In a statement, Wilson-Raybould said the report provides an evidence-based way to address HIV non-disclosure in the criminal justice system and she’ll continue working with the provinces on next steps.

“It clearly demonstrates that our criminal justice system must adapt to better reflect this progress as well as current scientific evidence on HIV-AIDS,” she said.

The study was published also as the Liberals announced $36.4 million in projects designed to address AIDS to mark World AIDS Day.