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WEEKLY EXPLAINER

A new House of Commons report recommends the federal government limit laws that are used to criminalize HIV non-disclosure.

Here’s the background Currently, the Criminal Code of Canada does not have a specific law that requires people to disclose their HIV status to potential sexual partners. However, the Supreme Court of Canada has established that people living with HIV do have a legal duty to disclose; the court’s rationale being that a sexual partner has the right to know whether they might be at risk of HIV transmission.

Critics have long argued that this position perpetuates stigma and harm and that it doesn’t acknowledge the advancements of HIV/AIDS research and treatment or the reality that reduced viral loads make the virus undetectable, which also means it’s untransmittable.

In fact, based on the current legal approaches regarding HIV non-disclosure, a person’s intent to harm a sexual partner or the actual transmission of the virus is not taken into consideration when convicting someone under the Criminal Code. Under the current legal framework, people are charged and prosecuted under several Criminal Code provisions, which vary from criminal negligence causing bodily harm to aggravated assault and even, in extreme cases, murder.

In Canada, most of the charges in cases of HIV non-disclosure have been aggravated sexual assault. This means that a person living with HIV who has been convicted of not disclosing their poz status to a sexual partner could receive a life sentence and be required to register as a sex offender in the National Sex Offender Registry.

Here’s a video on the status of the criminalization of HIV non-disclosure in Canada.

In 2016, in an attempt to rectify the issue of HIV non-disclosure criminalization in Canada, former Justice Minister Jody Wilson-Raybould worked with provincial and territorial ministers, medical professionals and people living with HIV to examine how the criminal justice system responds to cases of non-disclosure. The following year, members of the House of Commons Standing Committee on Justice and Human Rights agreed to conduct a study on the issue and report its findings to the House of Commons.

Almost two years later, in April and May 2019, the committee held four meetings and heard evidence from scientists, researchers, legal and public health experts as well as people living with HIV. On Monday, the committee presented its recommendations to the House of Commons.

Now that you’re caught up. Here are some of the recommendations The committee suggests the federal government limit the use of criminal law in dealing with HIV non-disclosure. It also suggests that HIV non-disclosure should not be an offence punishable by sexual assault charges. Finally, the committee recommends that the government limit the prosecution to only extreme cases where it can be shown that a person intentionally transmits HIV with malicious intent.

Other recommendations include that the federal government:

Create a specific offence in the Criminal Code related to the non-disclosure of an infectious disease (including HIV) when there is an actual occurrence of transmission, and individuals can only be charged with that offence.
Draft legislation with the guidance and consultation of relevant stakeholders and treat HIV as a public health issue like any other infectious diseases.

The report also advises that the Minister of Justice and Attorney General:

Establish a federal-provincial working group to develop and implement a unified law surrounding HIV non-disclosure across Canada.
End criminal prosecutions of HIV non-disclosure, except in cases where there is an actual transmission of the virus.

Ensure that the factors to be respected for criminal prosecutions of HIV non-disclosure reflect the most recent medical science regarding HIV and its modes of transmission.

The committee notes these recommendations are important because the criminalization of HIV non-disclosure does not only have devastating consequences for those accused and convicted, it also perpetuates the stigma surrounding HIV/AIDS.

Now what? The Canadian HIV/AIDS Legal Network released a statement saying it welcomes many of the conclusions in the report and is now waiting for concrete actions to follow.

However, the network expressed disagreement regarding the recommendation to extend the criminal law to other infectious diseases, saying: “We will not solve the inappropriate use of the criminal law against people living with HIV by punishing more people and more health conditions.”

In an interview with The Canadian Press, Justice Minister David Lametti says the federal government won’t be able to act on the recommendations prior to the October federal election. He says that if re-elected, the Liberal government could explore more options regarding the decriminalization of HIV non-disclosure.

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