In 2010, the Ontario Working Group on Criminal Law and HIV Exposure (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 one tool for helping Crown prosecutors handling individual cases to exercise their discretion in ways that limit the potentially very wide scope of criminal charges, in line with the best available science and a concern for human rights and public health.
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, the Ministry of the Attorney General (MAG) committed in writing to developing guidelines for Crown prosecutors. However, the process since then has been repeatedly stalled – for example, by MAG’s repeated refusal to meet with community representatives to discuss the guidelines while waiting for decisions in two important cases from the Supreme Court of Canada.
Those rulings finally came in October 2012, and were widely criticized by HIV experts and human rights advocates. (Click here for a summary of the rulings; a French analysis is also available here.) Given that these Supreme Court rulings made the law even harsher for people living with HIV, they heighten the importance of having guidance for Crown prosecutors that limit criminal prosecutions, and that MAG engage in meaningful discussions with the HIV community on the content of the guidelines.
In May 2013, MAG officials finally told CLHE that they are “currently developing guidance for Crown counsel” and that the guidelines “should be finalized by the fall [of 2013].” But despite repeated requests, MAG refused to engage in an open and transparent manner with the HIV community and scientific experts to discuss the content of the draft guidelines.
MAG’s approach to engaging with community in discussing the potential content of any such guidelines has given CLHE cause for concern that they would do little to narrow the overly broad and unjust use of criminal charges against people living with HIV.
Thanks in part to CLHE’s online petition, advocates were able to get a meeting in late September 2013 with Ontario Premier Kathleen Wynne to discuss our concerns. She indicated she understands the importance of this issue to people living with HIV and HIV service providers, and shares the basic concern that the criminal law should not be misused, while noting that broad policy guidance for prosecutors must come from the Attorney General of the province.
As part of the Campaign, CLHE has sent numerous emails and letters to the Attorney General of Ontario and senior civil servants working on such policy issues at MAG, as well as to members of the Ontario Legislature. Even before we began our campaign, the HIV & AIDS Legal Clinic Ontario (HALCO) and the Canadian HIV/AIDS Legal Network, founding members of CLHE, corresponded with MAG to raise concerns about the unfairness and injustice of criminal prosecutions.
Click here to see the advocacy timeline, inform yourself, and join in our campaign for justice and fairness for people living with and at risk of HIV in Ontario.
We will continue to raise our concerns with the Ontario government, including MAG. We will send out a further update as things develop.
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Updated February 11, 2014