For those with access to treatment, HIV has transformed into a chronic medical condition. However, in many other ways, Canada is stuck in the 1980s. Stigma and discrimination against people living with HIV remains pervasive across the country. There is no better example of stigma-ridden law and policy as Canada’s approach to the criminalization of people living with HIV. Contrary to science, human rights, international standards and even recommendations from its own federal government, Canada remains a world leader, along with the United States and Russia, when it comes to prosecuting people with HIV. There have been at least 210 prosecutions, the overwhelming majority since 2004. Over half have taken place in Ontario, which makes the province a global hot spot for criminalizing people living with HIV. Alarmingly, since 2012, almost half of those charged in Canada are African/Caribbean/Black men, and there is deep concern that a trend is developing that sees the overrepresentation of Indigenous women.
To make matters worse, the charge is almost always aggravated sexual assault, one of the most serious offences in Canada’s Criminal Code, even though the sex that underlies the offence is consensual in nature. Moreover, people are charged when there is no allegation of transmission of HIV, no intention to transmit and in circumstances where the sexual activity in question poses negligible to zero risk of transmission.
In short, people with HIV are significantly over-criminalized in Canada. In addition to horrendous miscarriages of justice faced by individuals, the current use of the criminal law is bad public policy. Already vulnerable persons, such as those who do not have access to HIV medications or who are in abusive relationships, are at heightened risk of interaction with HIV criminalization. In particular, criminalization can have serious, adverse impacts on women living with HIV, especially those facing challenges due to socioeconomic status, discrimination, insecure immigration status or abusive or dependent relationships. An overly broad use of the criminal law also puts women at increased risk of violence and prosecution by providing a tool of coercion or revenge for vindictive partners.
The federal government itself recognizes the problem. On World AIDS Day in December 2017, Justice Canada released “Criminal Justice System’s Response to Non-Disclosure of HIV,” which contains a number of important conclusions warranting a more limited application of the criminal law. In particular, the report explicitly recognizes that: (i) HIV is first and foremost a public health matter; (ii) the use of the blunt instrument of the criminal law should be a matter of last resort; and (iii) the application of the criminal law to HIV non-disclosure is likely to disproportionately affect Indigenous, gay and Black people. The report also recognizes that it is problematic, in at least some circumstances, to use the law of sexual assault to deal with allegations of HIV non-disclosure.
Justice Canada’s report recommends, inter alia, that the criminal law should not apply to people who have a suppressed viral load and should generally not apply to those who are not on treatment but use condoms or engage only in oral sex.
On the same day that the federal government released its report on the issue, Ontario finally took an initial step to bring the use of the criminal law in line with science and human rights in a manner that is supportive of HIV-related care, treatment and prevention. In a joint statement, the attorney general and minister of Health and Long-Term Care stated that they “believe strongly that HIV should be considered with a public health lens, rather than a criminal justice one, wherever possible.” The statement further made it clear that “where an individual has a suppressed viral load for six months, Ontario’s crown prosecutors will no longer be proceeding with criminal prosecutions.”
While this decision is welcome, we unequivocally take the position that this reflects but one of the minimum points called for by many in the HIV community and beyond. As indicated for many years, and as reflected in a recently released community consensus statement endorsed by more than 150 organizations across Canada, criminal prosecutions should be removed from the reach of sexual assault laws and be limited to cases of actual, intentional transmission of HIV. In addition, HIV-related criminal charges are not appropriate where a person living with HIV engaged in activities that, according to the best available scientific evidence, posed no significant risk of transmission, which include: (i) anal or vaginal sex without a condom while having a low viral load; (ii) oral sex; and (iii) anal or vaginal sex with a condom.
We are deeply concerned that the province will continue its overzealous approach by continuing to prosecute those who do not have a suppressed viral load, even in circumstances relating to sex with a condom or oral sex. Not only does this approach run counter to the federal recommendations and standards that have been recommended repeatedly, it would also (i) perpetuate stigma and discrimination against people living with HIV; (ii) ignore scientific evidence; (iii) continue unjust criminalization; and (iv) be bad public policy.
Among other reforms, Ontario must immediately cease prosecutions in relation to oral sex and sex with a condom. In addition, historic convictions must be reviewed. After many years of work on this issue, we are hopeful that, through meaningful engagement with the HIV community, Ontario will cease to be one of the world’s worst offenders in unjustly prosecuting people with HIV. Instead, it is our fervent hope that Ontario will lead the way to arrive at a place, as envisioned in the provincial HIV/AIDS strategy, where new HIV infections are rare and people living with HIV will lead long, healthy lives, free from stigma and discrimination.
Ryan Peck is executive director of HIV & AIDS Legal Clinic Ontario, co-chairman of the Ontario Working Group on Criminal Law and HIV Exposure, member of the Ontario Advisory Committee on HIV/AIDS and the recipient of the 2016 Legal Aid Ontario Sidney B. Linden Award.