What could prosecutorial guidelines look like?

HIV groups canvassed the province

Below are excerpts of guidelines drafted by the Ontario Working Group on Criminal Law and HIV Exposure. They were developed after the group conducted in-person and online consultations across the province with lawyers, AIDS service organizations and people living with HIV/AIDS. A 29-page document, containing these and other suggestions, was submitted as recommendations to the Ministry of the Attorney General in June 2011. It was obtained by Xtra through a Freedom of Information request. The province promises to release guidelines in the fall of 2013.

“Prosecutions should be handled with restraint and caution.”

“Care must be taken not to equate sexual offences involving coercion, force and violence with cases based on allegations of HIV/STI nondisclosure by applying the same prosecutorial approach.”

“Crown counsel must take care not to prosecute cases in a manner that would reinforce societal prejudices, preconceptions and irrational fears regarding HIV, or undermine public health efforts to prevent the spread of HIV and other STIs.”

“Crown should strongly consider consenting to the release of persons charged with offences involving HIV nondisclosure. It should only be in rare cases that Crown would oppose bail.”

“Crown counsel must obtain an expert medical report as part of properly screening the charge.”

“In situations where HIV/STI transmission is not alleged … Crown counsel should consider proceeding with simple assault or a Criminal Code offence not based on assault [instead of aggravated sexual assault, which carries a maximum sentence of life in prison.]”

“Crown counsel should consider the following public interest factors that work in favour of discontinuing an HIV/STI nondisclosure prosecution: (a) the complainant was not infected with HIV or another STI; (b) there is no evidence of a history of nondisclosure; (c) the compromised physical and mental state of the accused; (d) the availability and efficacy of interventions by public health authorities; (e) the health an safety risks that incarceration poses for people living with HIV/AIDS…”

Marcus McCann

Marcus McCann is an employment and human rights lawyer, member of Queers Crash the Beat, and a part owner of Glad Day Bookshop. Before becoming a lawyer, he was the managing editor of Xtra in Toronto and Ottawa.

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