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Criminalization critique

Editorial Obiter

Last week, justice ministers from across the country met in Vancouver to discuss a range of pressing issues, notably marijuana legalization.

But advocates for the rights of people living with HIV were paying close attention, as another item was on the agenda — discussions around how the criminal law is applied against people living with HIV, regarding their disclosure to sexual partners.

Legal groups are intervening in an upcoming appeal occurring in Nova Scotia, involving a man convicted of two counts of sexual assault causing bodily harm, saying that case will have ramifications across Canada. Ontario lawyers have called on the government to provide more information about how prosecutors determine which cases they choose to pursue around HIV non-disclosure.

“We require sound prosecutorial guidance to be produced by the Ontario Ministry of the Attorney General to ensure that Crown prosecutors handling HIV non-disclosure allegations are conducted in a manner that is truly in line with current up-to-date science as well as human rights principles,” says Ryan Peck, executive director of the HIV & Aids Legal Clinic Ontario, whose group is participating in the Nova Scotia appeal. “Until such guidelines are put in place . . . we take the position that there ought to be a moratorium on all prosecutions unless there is an allegation [that] somebody is intentionally, maliciously attempting to infect somebody else [and] transmit HIV.”

Peck and other advocates have a point when it comes to applying a new lens to how we view HIV.

The laws under the Criminal Code are worthy of review — and clearer articulation within the law, and how the prosecutorial guidelines are applied, will bring clarity on all sides.

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