In the advocacy timeline is the complete trail of correspondence between CLHE (and member organizations such as HALCO and the Legal Network), and the province of Ontario. It outlines community advocates’ repeated requests for meetings, our concerns about the misuse of criminal charges, and the need for sound prosecutorial guidelines to be developed with a proper consultative process.
The timeline includes links to copies of the emails and letters we sent, and the responses we received. The letters are arranged in reverse chronological order—the most recent at the top—with a short description of what the letter was about. The timeline also includes some other key developments that have occurred during this campaign.
|February 20, 2019
|Attorney General Caroline Mulroney responds to letter from CLHE co-chairs sent on December 17, 2018 (see item 62).
|HALCO prepares an information sheet on the status of HIV and the criminal law in Ontario.
|December 17, 2018
|CLHE co-chairs write to Ontario Attorney General, the Hon. Caroline Mulroney, and Minister of Health and Long-Term Care, the Hon. Christine Elliott, requesting that they, on behalf of their ministries, continue to engage with the HIV community to ensure that HIV is considered with a public health lens rather than a criminal justice one. The letter details actions that must be taken in Ontario to prevent the misuse of criminal law against people living with HIV.
|December 8, 2018
|The directive from the Attorney General of Canada to the Director of the Public Prosecution Service of Canada is officially published in the Canada Gazette, coming into effect at that time. (Download the PDF version in English and French.)
The Attorney General directs as follows:
NB: The Directive governs all federal Crown attorneys, who only prosecute such cases in the territories (Yukon, Northwest Territories and Nunavut). Prosecutions of alleged HIV non-disclosure cases in the provinces (including Ontario) are the responsibility of provincial Attorneys General and their Crown attorneys.
|December 1, 2018
|The Attorney General of Canada, the Hon. Jody Wilson-Raybould, announces that she will issue a directive governing federal prosecutors that will implement some limits on HIV criminalization, reflecting the conclusions in the Justice Canada report released on World AIDS Day the previous year (December 1, 2017).
|June 29, 2018
|Following the Ontario provincial election held on June 7, 2018, the government of Premier Doug Ford is sworn in to office.
|May 4, 2018
|The office of the Ministry of the Attorney General writes to all police services in Ontario, reporting that on December 1, 2017, the Attorney General issued a written direction that Ontario will not prosecute individuals for non-disclosure of their HIV status where they have maintained a suppressed viral load for six months. Further, police services are advised to contact local Crown Attorneys to seek pre-charge advice on all HIV exposure cases.
|April 12, 2018
|CLHE meets with Minister of Health and Long-Term Care (Hon. Dr. Helena Jaczek), Minister of Community Safety and Correctional Services (Hon. Marie France-Lalonde), Minister for the Status of Women (Hon. Harinder Malhi), and the Attorney General (Hon. Yasir Naqvi). A brief summarizes the current law in Ontario, and outlines CLHE’s recommendations to the Government of Ontario for ending the overcriminalization of HIV.
|January 8, 2018
|CLHE writes to Attorney General, Yassir Naqvi, and Minister of Health and Long-Term Care, Eric Hoskins, urging that the promised roundtable on HIV criminalization be scheduled immediately. CLHE reiterates, among other items, that prosecutions must cease against people who engage in oral sex or who have sex with a condom.
|December 1, 2017
|CLHE writes to the Ontario Attorney General and the Minister of Health and Long-Term Care. CLHE welcomes the decision to stop prosecutions for alleged HIV non-disclosure in cases where a person living with HIV has a suppressed viral load. CLHE calls on them to go further, in keeping with the recommendations of the Justice Canada report just released, to cease prosecutions in cases where a condom has been used or based solely on instances of oral sex.
|December 1, 2017
|The Canadian Coalition to Reform HIV Criminalization, CLHE, the Canadian HIV/AIDS Legal Network, the HIV & AIDS Legal Clinic Ontario and the Canadian Positive People Network issue a joint statement commenting on the Justice Canada report and the announcement by the Ontario Attorney General and Minister of Health and Long-Term Care. (This statement is also available in French.) The statement says the announcements represent an important, modest advance in limiting HIV criminalization; it welcomes the conclusions of the Justice Canada report and calls on the Ontario Attorney General (and other provincial Attorneys General) to go further with their guidance to prosecutors, in keeping with the recommendations in the federal report.
|December 1, 2017
|The Ontario Attorney General and Minister of Health and Long-Term Care release a joint statement announcing that “…in light of the overwhelming scientific consensus for cases where an individual has a suppressed viral load for six months, Ontario’s Crown Prosecutors will no longer be proceeding with criminal prosecutions” for alleged HIV non-disclosure. (The statement refers to the Justice Canada report, which defines a “suppressed viral load” as being below 200 copies/mL.) The statement indicates they will set up a joint roundtable with community organizations and experts to discuss the issue further.
The Ontario Attorney General also issues an update to the directive to Crown prosecutors regarding prosecution of sexual offences, reflecting this new directive that criminal charges will not proceed in such cases.
|December 1, 2017
|The federal Minister of Justice and Attorney General releases a report prepared by Justice Canada entitled “Criminal Justice System’s Response to the Non-Disclosure of HIV.” The report reviews the state of the law in Canada and scientific evidence regarding HIV transmission. It presents a number of conclusions, including the following:
Consistent with the relevant SCC jurisprudence, the criminal law should not apply to persons living with HIV who have engaged in sexual activity without disclosing their status if they have maintained a suppressed viral load (i.e., under 200 copies per ml of blood), because the realistic possibility of transmission test is not met in these circumstances. A person living with HIV who takes their treatment as prescribed is acting responsibly.
The criminal law should generally not apply to persons living with HIV who: are on treatment; are not on treatment but use condoms; or, engage only in oral sex (unless other risk factors are present and the person living with HIV is aware of those risks), because the realistic possibility of transmission test is likely not met in these circumstances.
|November 27, 2017
|The Canadian Coalition to Reform HIV Criminalization (CCRHC) releases a Community Consensus Statement on Ending Unjust HIV Criminalization. Endorsed by more than 150 organizations across the country (at the time of release), the Statement calls for prosecutions to be limited to cases of actual, intentional transmission of HIV. To that end, it calls for action in three areas to limit unjust criminalization: (1) adoption of sound prosecutorial guidelines by federal and provincial Attorneys General; (2) amendment of the federal Criminal Code, including to end the use of sexual assault laws to prosecute alleged HIV non-disclosure; and (3) training on HIV for police, prosecutors and judges. (The Consensus Statement is also available in French.)
|May 9, 2017
|Susan Kyle, the new Assistant Deputy Attorney General, Criminal Law Division, at the Ontario Ministry of the Attorney General (MAG), responds to CLHE’s letter. She highlights consultations that the ministry has had so far, and discusses working with the federal government to examine the criminal justice system’s response to HIV non-disclosure laws.
|May 1, 2017
|CLHE writes to Susan Kyle, the new Assistant Deputy Attorney General, Criminal Law Division, at the Ontario Ministry of the Attorney General (MAG), urging MAG to address the human rights and public health concerns associated with unjust HIV-related prosecutions.
|April 6, 2017
|Canada’s top HIV researchers release a statement at Canada’s premier national HIV research conference, CAHR, urging federal, provincial and territorial governments to act now to limit the use of the criminal law in HIV non-disclosure cases. (en français)
|April 4, 2017
|CLHE responds to MAG, noting that Karen Shea’s document is indeed reflective of MAG’s current misguided approach to criminalization, and refuting the claim that it would be premature for the MAG to take action at this time. CLHE reiterates its call for an immediate moratorium on prosecutions, and requests a public statement by the MAG detailing their commitment to ending the overly broad application of the law in cases of alleged HIV non-disclosure.
|March 3, 2017
|MAG responds to CLHE letters (December 19, January 5 and 19), also following up on the Ministerial Roundtable held on December 5, 2017. Minister Naqvi notes that the document produced by Karen Shea re her approach to prosecuting cases of alleged HIV non-disclosure was not a “Ministry-issued policy or guideline.” He also states that, while MAG is actively engaged, they believe it is “premature” to act in advance of any further direction from the federal government. MAG is awaiting federally-promised engagement with provinces and territories.
|January 26, 2017
|CLHE writes to Minister Lalonde in reaction to a police officer’s unacceptable remark on HIV and spitting during a violent arrest in Toronto.
|January 19, 2017
|CLHE writes to MAG to reiterate its request for an immediate moratorium on all prosecutions in cases of alleged HIV non-disclosure, unless there is alleged intentional transmission of HIV and for a public statement against the use of overly broad HIV criminalization. CLHE expresses concerns that the prosecutorial approach described in recently published Crown prosecutor Karen Shea’s guide is alive and well today and that Ms. Shea continues to play a central role in these prosecutions.
|January 17, 20167
|CLHE writes letters to Minister Naidoo-Harris and to Minister Marie-France Lalonde to welcome them to their new position and follow up on the December 5th, 2016 Ontario Ministers Roundtable.
|17 January 2017
|In January 2017, MAG released a document written by assistant Crown attorney Karen Shea detailing her approach to prosecuting HIV non-disclosure cases. The document was obtained by lawyer Marcus McCann after years-long legal battle with the provincial government.
|January 5, 2017
|CLHE writes to Minister Naqvi and reiterates its call for action including an immediate moratorium on all prosecutions in cases of HIV non-disclosure, unless there is alleged intentional transmission of HIV, while discussions regarding law reform and the development of prosecutorial guidelines take place with CLHE and others in the HIV community (including people living with HIV, scientific experts and human rights experts), and the federal government.
|December 19, 2016
|CLHE writes letters to Minister Naqvi, Minister MacCharles, Minister Hoskins, Minister Flynn and Minister Murray in response to the Ontario Ministers Roundtable on HIV and the Criminal Law held on December 5th, 2016 at Queen’s Park.
|December 19, 2016
|CLHE writes a letter to the Federal Minister of Justice to commend her on her World AIDS Day statement on HIV criminalization and to request a meeting to discuss correcting the current misuse of the criminal law in relation to HIV non-disclosure.
|November 30, 2016
|CLHE writes letters to Minister Naqvi, Minister MacCharles, Minister Hoskins, Minister Orazietti and Minister Murray in preparation for the Ontario Ministers Roundtable on HIV and the Criminal Law on December 5th, 2016 at Queen’s Park. Each letters include specific recommendations for action.
|30 November 2016
|CLHE submits a briefing paper to Ontario Ministers in preparation for the December 5th roundtable.
|November 23, 2016
|CLHE writes to the Crown Attorney HIV Expert Group, expressing its concerns with HIV non-disclosure cases in Ontario and requesting a meeting with the expert group to discuss the matter.
|November 17, 2016
|CLHE writes to Minister Hoskins to express disappointment after hearing that he will not be attending the Ontario Ministers roundtable on HIV criminalization scheduled in December.
|November 15, 2016
|CLHE thanks Delia Greco, MAG’s Senior Policy Advisor for our meeting on October 6, 2016 and requests a commitment from MAG to meaningfully engage with CLHE on HIV criminalization. To this end, CLHE requests, (i) a series of meetings including before the Ministers’ roundtable on December 5 to discuss concrete measures to be proposed and discussed at the roundtable; (ii) a meeting with the Crown expert group that currently oversees prosecutions related to HIV non-disclosure; and (iii) an opportunity to participate in Crown attorney training sessions.
|June 28, 2016
|CLHE congratulates Minister Yasir Naqvi on his appointment as Attorney General of Ontario and requests a meeting with CLHE members as well as scientist experts.
|December 3, 2015
|MAG confirmed to CLHE that the draft guidelines will not be issued to all crown counsel.
|October 2, 2015
|CLHE writes to the Ministry of Health to request a meeting with CLHE members as well as scientific experts, to discuss the impacts of prosecutions on public health and people living with HIV. The Ministry did not respond to CLHE’s letter.
|September 30, 2015
|CLHE writes to MAG to seek confirmation, that given their serious deficiency, the draft guidelines will not be adopted as MAG policy and will not be used by prosecutors as guidance.
|2 December 2014
|CLHE informs Premier Wynne that MAG should not proceed with the guidelines as drafted, given their unacceptable content, and requests a meeting.
|4 November 2014
|On November 4, 2014, three CLHE representatives meet with MAG to review and discuss the draft guidelines (subject to gag order).
|29 August 2014
|Scientific experts share the Canadian Consensus Statement on HIV and its Transmission in the Context of the Criminal Law with MAG and request a meeting to present on their work and its implications
|25 March 2014
|CHLE objects to the condition that contents of draft guideline cannot be shared, but accepts it as condition of seeing the draft guidelines
|6 March 2014
|MAG replies that it would be inappropriate for them to comment on a case that is still before the courts
|7 January 2014
|CLHE argues the prosecution of a person living with HIV for assault causing bodily harm for spitting is unjust, discriminatory and perpetuates ignorance
|20 December 2013
|MAG offers to show the draft guidelines to three people involved in CLHE, but only if they agree never to disclose the contents of the draft guidelines—effectively a “gag order”
|29 November 2013
|CLHE asks MAG to clarify the process and timeline for consultation about impending draft guidelines…again
|10 October 2013
|Legal Network thanks Premier Wynne for meeting with CLHE and Stephen Lewis (Commissioner of the Global Commission on HIV and the Law), reiterates that Ontario is out-of-step with science and international guidance, and highlights some key elements that need to be including in prosecutorial guidelines
|4 September 2013
|CLHE asks MAG to clarify the process and timeline for consultation about impending draft guideline
|27 June 2013
|CLHE thanks Premier Wynne’s policy advisor for discussing guidelines with CLHE co-chair, reiterates the history of the issue, and requests the Premier’s assistance in arranging a meeting between CLHE and MAG
|UNAIDS releases international guidance document on ending overly broad criminalization of HIV, including scientific, medical and legal considerations
|CLHE launches an online petition to the Ontario Premier and Attorney General requesting that they meet with CLHE to discuss the content of prosecutorial guidelines
|17 May 2013
|MAG refuses to meet with CLHE to discuss the draft guidelines
|7 May 2013
|CLHE requests a face-to-face meeting with MAG to review the draft guidelines
|30 April 2013
|MAG reveals that it is in process of developing guidelines, but will not undertake consultations; MAG says that the guidelines will “be consistent with the principles articulated by the Supreme Court of Canada” in its rulings in the Mabior and D.C. cases (in October 2012)
|23 April 2013
|CLHE writes to Premier Wynne, pointing out that MAG has gone back on its commitment to develop guidelines and refuses to provide CLHE with a timeline and process for developing draft guidelines
|21 March 2013
|MAG thanks CLHE for meeting with the Director of its Criminal Law Policy Branch, notes that the Supreme Court rulings in Mabior and D.C. cases “did clarify the law in a number of areas” and that “all appropriate factors are being considered”
|4 February 2013
|CLHE thanks Director of MAG’s Criminal Law Policy Branch for meeting, reiterates CLHE’s position, and requests timeline and process for developing draft guidelines
|12 October 2012
|Shortly after the Supreme Court rulings, CLHE requests meeting with MAG to discuss development of prosecutorial guidelines, notes the potential for further harm from the Supreme Court’s rulings and hence the importance of guidelines to ensure restraint in criminal prosecutions
|5 October 2012
|Supreme Court of Canada issues its rulings in the companion cases of R. v. Mabior and R. v. D.C., further widening the scope of potential criminal liability in Canada for HIV non-disclosure; advocates are harshly critical of the decisions. (For info, click here.)
|CLHE launches an online petition to the Ontario Attorney General requesting that he: (1) instruct Crown prosecutors to stop prosecuting people living with HIV where there is no “significant risk” of HIV transmission; (2) put all prosecutions “on hold” until the Supreme Court releases its decision in two upcoming cases of R. v. Mabior and R. v. D.C.; and (3) meet with the community-based CLHE to discuss when and how he will fulfill the previous Attorney General’s promise to put in place guidelines for Crown prosecutors
|9 July 2012
|Global Commission on HIV and the Law issues its report; recommendations include important limits on the use of criminal prosecutions for alleged HIV non-disclosure, which Canadian law already significantly exceeds (see Chapter 2)
|6 July 2012
|MAG advises CLHE that it will not develop guidelines until the Supreme Court decides the Mabior and D.C. cases
|22 June 2012
|CLHE expresses “utter dismay” with MAG’s legal argument in two cases being heard by the Ontario Court of Appeal (which is the same position it had previously intended to advance at the Supreme Court of Canada but then withdrew in December 2011), and indicates CLHE’s “profound sense of betrayal” by such a position that shows bad faith given MAG’s commitment to develop guidelines … an immediate response is demanded
|1 June 2012
|CLHE requests meeting with to discuss timeline and process for developing draft guidelines, and for interim rules until comprehensive guidelines are put in place
|8 February 2012
|MAG advises that it will not develop guidelines until after Supreme Court releases its rulings in the Mabior and D.C. cases
|2 February 2012
|CHLE requests meeting with MAG to discuss development of guidelines, and encourages MAG to accept an invitation from UNAIDS to participate in international high-level consultation on HIV criminalization (which MAG declines)
|13 December 2011
|HALCO and the Legal Network welcome and commend MAG’s decision to withdraw its intended arguments before the Supreme Court of Canada in the Mabior and D.C. cases, and indicate CLHE will be in touch to discuss development of guidelines for prosecutors
|20 November 2011
|HALCO urges Ontario Premier McGuinty to personally intervene to ensure that his government follows through on MAG’s earlier commitment to develop prosecutorial guidelines, and flagging concerns about the position his Attorney General intends to take at the Supreme Court in the Mabior and D.C. cases
|17 November 2011
|CLHE issues appeal for messages to Attorney General calling on him to follow through on commitments to develop guidelines, expressing concern about MAG’s intended legal argument at the Supreme Court
|14 November 2011
|HALCO again requests a meeting with the Attorney General to discuss criminalization of HIV non-disclosure, MAG’s December 2010 commitment to develop guidelines, and the CLHE’s concerns about MAG’s intended legal argument in the Mabior and DC cases at the Supreme Court
|28 October 2011
|HALCO requests a meeting with MAG to discuss its December 2010 commitment to develop guidelines, as well as the legal position that MAG has indicated it intends to argue before the Supreme Court of Canada in the Mabior and DC cases (which position would expand, rather than narrow, the scope of the criminal law)
|17 October 2011
|HALCO requests a meeting with MAG to discuss guidelines, which are needed to ensure criminal cases are handled in a fair and non-discriminatory manner; notes again the detailed recommendations previously prepared by CLHE following MAG’s commitment to develop guidelines
|CHLE submits a Community Report and Recommendations to the Attorney General of Ontario regarding prosecutorial guidelines, based on its province-wide consultation undertaken following the Attorney General’s commitment to develop guidelines
|11 February 2011
|MAG recognizes the need for consultation when developing guidelines, commits to seeking input from “relevant, available and appropriate experts,” and undertakes to move forward in a manner that is “as timely as possible”
|5 January 2011
|HALCO thanks MAG for committing to developing guidelines, and asks MAG to clarify the consultation process and timeline so that consultation can take place as quickly as possible
|16 December 2010
|MAG reiterates its commitment to developing guidelines, commits to sharing draft guidelines with CLHE before they are issued, and assures CLHE that MAG “will make every effort to consider all relevant perspectives and concerns,” including those of CLHE
|3 November 2010
|HALCO sends MAG CLHE’s recommendations for a consultation process for developing guidelines (including a proposed timeline), which recommendations are based on consultations around the province
|15 July 2010
|HALCO thanks MAG for meeting with CLHE, and requests that MAG immediately put in place a process to develop guidelines that must include consulting with people living with HIV
|29 March 2010
|HALCO and the Legal Network write to the Ontario Attorney General requesting that MAG meet with CLHE to review policy options to address criminal prosecutions for alleged HIV non-disclosure, and again underscore the need for guidelines to avoid misuse of the law
|13 January 2010
|Legal Network thanks Attorney General for his response and openness to receiving resources to inform the development of prosecutorial guidelines to ensure evidence-based, just use of criminal law in cases of alleged HIV non-disclosure; notes some materials that will soon be available and that CLHE colleagues are following up with MAG officials to arrange a first meeting
|21 December 2009
|MAG address questions posed by the Legal Network in its letter, and invites the Legal Network to provide any material that might be useful to responding to HIV-related criminal cases
|25 September 2009
|The Legal Network raises concerns with MAG about the fairness and appropriateness of HIV-related criminal prosecutions, and requests copies of policies or guidelines police or prosecutors rely on when making decisions in these criminal cases