The Ontario Working Group on Criminal Law and HIV Exposure (CLHE) was founded in 2007 to oppose the expansive use of the criminal law to address HIV non-disclosure. It is comprised of people living with HIV, representatives from many community-based AIDS organizations from across Ontario, lawyers, academics and activists.
Concerns with criminalization
The overly-broad use of the criminal law in cases of alleged HIV non-disclosure, including serious charges such as aggravated sexual assault, leads to unjust prosecutions, further stigmatizes people living with HIV, and creates additional barriers to people seeking testing and treatment.
CLHE is extremely concerned that HIV-related 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.
History of advocacy
For many years, CLHE and others have been urging Ontario to cease contributing to the unjust criminalization of people living with HIV, and to bring the use of the law in line with science and human rights in a manner that is supportive of HIV-related care, treatment and prevention. Click here to see the history of CLHE’s advocacy, which includes the complete trail of correspondence between CLHE (and member organizations such as the HIV & AIDS Legal Clinic Ontario and the Canadian HIV/AIDS Legal Network) and the province of Ontario.
On World AIDS Day 2017 (December 1), on the same day that Justice Canada released a report entitled Criminal Justice System’s Response to the Non-Disclosure of HIV, Ontario finally moved in the proper direction: the Attorney General announced an updated directive ceasing prosecutions for alleged HIV non-disclosure to a sexual partner in cases where the person is on antiretroviral therapy and can demonstrate that their HIV has been “suppressed”—which means a viral load under 200 copies/ml of blood—for at least 6 months.
On December 8, 2018, the federal Attorney General, having listened to community concerns and acting on the recommendations on the earlier report from Justice Canada, issued a directive to federal Crown attorneys. Importantly, the directive recognizes that “it is not in the public interest to pursue HIV non-disclosure prosecutions for conduct that medical science shows does not pose a risk of serious harm to others” and that “the most recent medical science shows that the risk of HIV transmission through sexual activity is significantly reduced where: the person living with HIV is on treatment; condoms are used; only oral sex is engaged in; the sexual activity is limited to an isolated act; or, the person exposed to HIV, for example as a result of a broken condom, receives post-exposure prophylaxis.”
The directive also reflects to some degree the ongoing concern about the use of sexual assault charges in particular as the primary offence used to date to prosecute allegations of HIV non-disclosure. The directive states that federal prosecutors “shall prosecute HIV non-disclosure cases using non-sexual offences, instead of sexual offences, where non-sexual offences more appropriately reflect the wrongdoing committed, such as cases involving lower levels of blameworthiness.”
The directive also makes clear that laws that apply to HIV non-disclosure are likely to disproportionately impact “persons from marginalized backgrounds such as, for example, Indigenous, Black and gay persons.”
It is important to understand that the federal Attorney General’s directive only applies to federal prosecutors—and federal prosecutors only prosecute criminal offences in the three territories (Yukon, Northwest Territories and Nunavut). In the 10 provinces, it is provincial Attorneys General, and their provincial Crown attorneys, who prosecute criminal offences. Therefore, action is also required at the provincial level to directly govern the practice of prosecutions in the provinces, which is where the large majority of people, including with HIV, live in Canada.
Next steps in Ontario
It is essential that Ontario follow the federal government’s lead and issue updated directives in consultation with community organizations based on the federal government directive and CLHE recommendations. At the bare minimum, all provincial Attorneys General, including Ontario’s, should adopt the additional limits on criminal prosecutions that are found in the federal Attorney General’s directive to federal prosecutors.
In particular, directives must cease prosecutions where, based on medical and scientific evidence, there is no to negligible possibility of HIV transmission, including in cases of:
- oral sex
- anal or vaginal sex with a condom
- anal or vaginal sex without a condom while having a low viral load or while on treatment
- spitting and biting
In addition, we urge directives clarifying that prosecutions should not take place when the person living with HIV:
- did not understand how the virus is transmitted
- disclosed their status to their sexual partner or reasonably believed their sexual partner was aware of their status through some other means
- did not disclose their status because they feared violence or other serious negative consequences would result from such disclosure
- was forced or coerced into sex
As acknowledged by the federal government, provincial directives should also recognize that HIV transmission is primarily a public health issue and must be treated as such. Directives must also take into account persisting inequities in access to health services and treatment that continue to affect most marginalized communities of people living with HIV, as well as gender dynamics that may prevent some women living with HIV to disclose their status or use condoms. Directives should also include, as does the federal directive, explicit recognition of the particular and disproportionate impacts of the law on Indigenous, Black and gay persons.
While we continue to advocate for Criminal Code reform by the federal government, it is essential that Ontario immediately update its prosecutorial policy and also review historic convictions in Ontario to assess whether they should be remedied.
CLHE will continue to raise its 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.