Justice Department issues new guidelines on prosecution for non-disclosure of HIV status

Canadian HIV/AIDS Legal Network has welcomed new moves issued by the federal government to limit what it calls unjust prosecutions of people with HIV.

Jody Wilson-Raybould, minister of Justice and attorney general of Canada, issued the new directives on Saturday, the 30th anniversary of World Aids Day.

Over-criminalization of HIV non-disclosure discourages many individuals from being tested and seeking treatment, she said in a news release.

The federal Justice Department has been working with its provincial counterparts since 2016 to redraft directives around prosecution over HIV non-disclosure.

The new directives state that there should not be prosecution where the person living with HIV has maintained a suppressed viral load (i.e. under 200 copies of the virus per millilitre of blood) because there is no realistic possibility of transmission.

“Quite positive,” was how Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network summed up his response to the announcement.

“We’ve been engaged for many years in many forms of advocacy to try to limit the overly broad use of the criminal law against people living with HIV, so we’ve been very pleased today to see that those efforts have finally paid off and that the attorney general has issued this directive,” Elliott told CBC Toronto.

In 2012,  the Supreme Court of Canada ruled that persons living with HIV must disclose their HIV status prior to engaging in sexual activity that poses a “realistic possibility of transmission.” The new directives attempt to clarify the law in cases where there is not a reasonable risk of transmission.

The attorney general directed there should not be criminal prosecution where:

• The person has not maintained a suppressed viral load, but used condoms or engaged only in oral sex or was taking treatment as prescribed, unless other risk factors are present..
• Non-sexual criminal offences would be more appropriate than sexual offences as this would better align with the individual’s situation, such as cases where the individual’s conduct was less blameworthy.
• If a person living with HIV has sought or received services from public health authorities, that must be taken into account when in determining whether it is in the public interest to pursue criminal charges.

The criminal law will continue to apply to persons living with HIV if they do not disclose, or misrepresent, their HIV status before sexual activity that poses a realistic possibility of HIV transmission.

Wilson-Raybould said the new directives are in line with the most recent scientific evidence on the risks of sexual transmission of HIV.

“Our criminal justice system must be responsive to current knowledge, including the most recent medical science on HIV transmission,” she said.

She called the changes an “important step forward in reducing the stigmatization of Canadians living with HIV.”

‘Directive could and should go even further’

Community organizations have long been advocating for alternatives to criminal prosecution, Elliott said.

“The directive could and should go even further,” he said, but overall he’s very pleased that the attorney general has listened.

“She has listened to community, she has listened to legal experts, she has listened to people living with HIV, she has listened to scientists, and has directed to her prosecutors to be more restrained in pursuing criminal prosecutions.”

Elliott said that in terms of the immediate application of the directives, people in Nunavut, Northwest Territories and Yukon will benefit because they fall within the federal jurisdiction.

He said in the 10 provinces, which is where the majority of Canadians, including those living with HIV actually reside, it’s the provincial governments and provincial attorneys general and their Crown attorneys who are responsible for prosecuting criminal code offences.

“For such a directive to Crown prosecutors to be applicable in the provinces, it would have to be adopted by provincial attorneys general. But it sets the bar, in a sense, for what provincial attorneys generals should do and it sets it in a place that no provincial attorney general has yet been willing to set it.”

On World Aids Day in 2017, the Ontario government announced that it would no longer criminally prosecute HIV-positive people who don’t disclose their status to sexual partners if there is no realistic possibility of transmission.

The announcement was made after the federal government published a study saying that the bar for someone who doesn’t disclose their HIV status to be charged with a criminal offence needs to catch up to science.

The 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 handled cases of people who don’t disclose their HIV status prior to engaging in sexual activity.