While this scientific reality must not be ignored, many people, including in Ontario, face significant institutional, social and economic barriers to accessing health care and life-saving medications. Moreover, social attitudes have not nearly kept pace with science; HIV-related stigma and accompanying discrimination remain entrenched and pervasive. It is shameful that, per a 2012 Canada-wide study prepared for the Public Health Agency of Canada, 15 per cent of Canadians feel afraid of people with HIV, 24 per cent feel uncomfortable wearing a sweater once worn by a person living with HIV and 22 per cent feel uncomfortable shopping at a small neighbourhood grocery store owned by someone living with HIV.
Such attitudes influence public policy and law, and Canada’s unjust criminalization of people living with HIV is one glaring example. The law has become more draconian even as HIV has become more manageable and as transmission risks decrease. In 1998, in its first decision on the subject, the Supreme Court of Canada established that people living with HIV could be found guilty of aggravated assault if they did not disclose their HIV status to a sexual partner prior to sex that posed a so-called “significant risk” of HIV transmission. In 2012, a subsequent SCC ruling established a duty to disclose before sex that poses a “realistic possibility” of HIV transmission.
In defining this new standard, the SCC and most other courts, police and Crown prosecutors failed to properly consider current scientific evidence about transmission risks. As a result, people are being convicted of aggravated sexual assault — one of the most serious offences in Canada’s Criminal Code, designed to respond to the most horrific of forced sex acts — in circumstances where (i) sexual behaviour is consensual; (ii) there is negligible to no risk of HIV transmission; (iii) there is no intention to transmit HIV; and (iv) transmission does not occur.
The current approach to HIV criminalization has a disproportionate impact on women, indigenous people, migrants and African/Caribbean/black communities. For example, there is great concern that women with HIV who are in abusive relationships will face aggravated sexual assault charges in situations wherein they cannot safely impose condom use nor disclose their HIV status.
The overly broad criminalization of HIV nondisclosure is also dramatic from a public health perspective. It hinders HIV prevention efforts and hampers care, treatment and support for those living with HIV by providing disincentives for HIV testing, and it deters honest and open conversations with health-care providers, including public health authorities, for legitimate fear that such conversations will be used in criminal cases.
But problems with the current use of the criminal law are starting to be recognized in various quarters.
The recently released HIV/AIDS strategy, produced by the Ontario Advisory Committee on HIV/AIDS and supported by the Ontario Ministry of Health and Long-Term Care, recognizes negative impacts of the current use of the criminal law and calls for engagement with community stakeholders and others on reform.
The medical community is speaking up. More than 70 leading scientists working in the field of HIV expressed serious concern with the law in their Canadian consensus statement on HIV and its transmission in the context of criminal law.
Feminists are speaking up, raising their deep concerns about equating HIV non-disclosure with force and threats that normally define our understanding of sexual assault and with this stigmatizing misuse of the law that labels people living with HIV, including women, as sex offenders.
After many years of silence, the federal government is finally speaking up. In a World AIDS Day 2016 statement, federal Minister of Justice Jody Wilson-Raybould stated, “[T]he over-criminalization of HIV nondisclosure discourages many individuals from being tested and seeking treatment, and further stigmatizes those living with HIV or AIDS. Just as treatment has progressed, the criminal justice system must adapt to better reflect the current scientific evidence on the realities of this disease.”
And, of course, the HIV community is speaking up. For more than seven years, the Ontario Working Group on Criminal Law and HIV Exposure has attempted to engage in meaningful dialogue with the provincial Ministry of the Attorney General in order to ensure that allegations of HIV non-disclosure are handled by Crown prosecutors in a manner that is consistent with current science, human rights principles and the public health response to HIV. Unfortunately, MAG has failed to engage in a good-faith dialogue and cease its overzealous approach to criminalizing people with HIV; Ontario remains a world leader in such prosecutions.
As a result, CLHE and many others are demanding an immediate moratorium on HIV non-disclosure prosecutions, unless there is alleged intentional transmission of HIV, while law reform options are explored and sound prosecutorial guidelines developed in meaningful consultation with community.
Injustice against people living with HIV must end now.
Ryan Peck is the recipient of the 2016 Legal Aid Ontario Sidney B. Linden Award, executive director of HIV & AIDS Legal Clinic Ontario, co-chairman of the Ontario Working Group on Criminal Law and HIV Exposure and a member of the board of directors of the Canadian HIV/AIDS Legal Network.