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The Ontario Working Group on Criminal Law and HIV Exposure (CLHE), founded in 2007 to oppose the expansive use of the criminal law to address HIV non-disclosure, is comprised of people living with HIV, representatives from many community-based AIDS organizations from across Ontario, lawyers, academics and activists. In 2010, CLHE launched its campaign calling on the province’s Attorney General to create prosecutorial guidelines to stop unjust prosecutions for HIV non-disclosure in Ontario. Such guidelines could be an important tool for ensuring that Crown prosecutors handling individual cases exercise their discretion in ways that limit the use of the criminal law in line with the best available science and reflective of human rights principles and good public health policy.
CLHE has also stressed from the outset that these guidelines should be developed in consultation with people living with HIV, service providers working in the field and other experts and should be informed by current medical and scientific knowledge about HIV and the social context of living with HIV.
In December 2010, CLHE was very pleased that then Attorney General Chris Bentley agreed to develop, with the input of CLHE, guidance for Crown prosecutors in relation to HIV non-disclosure, and to share a draft with CLHE. Unfortunately, MAG did not agree to the community engagement plan suggested by CLHE. In spite of the lack of meaningful engagement by MAG, in summer 2011, CLHE provided MAG with a Report and Recommendations based on community and expert consultations conducted by CLHE around the province with people living with HIV, communities affected by HIV, legal, public health, criminal justice and scientific experts, health care providers, and advocates for women’s rights in the context of sexual violence and the criminal justice system.
In May 2014, over 75 leading scientific experts signed the Canadian Consensus Statement on HIV and its Transmission in the Context of Criminal Law (Consensus Statement), which details the science surrounding HIV transmission and raises serious concerns with the manner in which criminal prosecutions are taking place. The statement was sent to MAG by the co-chairs of the scientific expert team who developed the Consensus Statement.
Although discussions have been taking place since 2010 and above material was provided to MAG, appropriate guidance has not been developed and the scope of the problem continues to escalate. People living with HIV continue to be charged with aggravated sexual assault – one of the most serious offenses in our Criminal Code – even where the sexual activity in question is consensual, there is no intent to cause harm, the risks of transmission are negligible if not zero, and no transmission occurs.
CLHE is extremely concerned that prosecutions are having a disproportionate impact on the most marginalized and vulnerable of persons living with HIV, including those who may not have access to medications or sustained health care, such as racialized newcomers and Indigenous persons. Similarly, there is great concern that prosecutions have had a disproportionate impact on vulnerable women living with HIV who are in abusive relationships or who cannot safely impose condom use or disclose their HIV status to sexual partners.
In addition to these questions of injustice, there is evidence that an overly broad use of the criminal law is bad public health policy, in that it undermines HIV prevention efforts and compromises the ability of people living with HIV to access the care, treatment and support they need to stay healthy. The current use of the law prevents people living with HIV from talking openly with health care providers due to the fear that their HIV and other test results and discussions with medical professionals may be used as evidence against them in criminal proceedings. We also remain deeply concerned that an overly broad use of the criminal law creates a disincentive for individuals to seek HIV testing.
CLHE continues to urge MAG to ensure that the application of the law is in line with science and human rights principles. For example, a Provincial Ministerial Roundtable on HIV and the Criminal Law was held on December 5th, 2016.
We will continue to raise our concerns with the Ontario government and demand concrete measures to put an end to unjust prosecutions. We will provide further updates as work on this vital issue develops.
Click here to see the advocacy timeline, which includes the complete trail of correspondence between CLHE (and member organizations such as HALCO and the Canadian HIV/AIDS Legal Network) and the province of Ontario.
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Updated December 2016