Sound guidelines developed in consultation with community can help police and Crown prosecutors handle HIV-related criminal complaints in a fair and non-discriminatory manner. Guidelines can help ensure that cases are informed by current medical and scientific knowledge about HIV and the social contexts of living with HIV.
- BackgroundPeople living with HIV have a duty under Canadian criminal law to disclose their HIV status to sex partners before having sex that poses a realistic possibility of HIV transmission. People living with HIV have been charged, convicted and sent to prison when they have not disclosed—even when no one became infected with HIV and posed negligible risk of transmission. The criminal law also applies to other sexually transmitted infections. But with the exception of a handful of cases (involving herpes, Hepatitis B and Hepatitis C), only people living with HIV have been prosecuted. HIV is not easy to transmit. And HIV medications reduce the risk of transmission and have transformed HIV for many people into a chronic manageable illness. Click here for more information on the law.
- What are prosecutorial guidelines?The Attorney General issues prosecutorial guidelines to assist Crown prosecutors in making decisions and to promote high standards and consistency in how criminal cases are handled. Crown Prosecutors, sometimes called Crown counsel, are government lawyers responsible for the prosecution of criminal cases. Prosecutorial guidelines are rarely absolute and do not take decision-making responsibility away from Crown prosecutors. They provide the overall philosophy, direction and priorities of the Attorney General (Provincial Minister of Justice) and set out detailed practice guidance for Crown prosecutors. Examples of criminal offences covered by Ontario prosecutorial guidelines include:
- hate crimes and discrimination
- sexual offences
- spouse/partner offences
Ontario’s Crown Policy Manual is available at www.attorneygeneral.jus.gov.on.ca/english/crim/cpm.
- Do prosecutorial guidelines apply to police and courts?No. However, Crown prosecutors play a pivotal role in the criminal justice system. Decisions by Crown prosecutors under prosecutorial guidelines can influence the charges that police lay, whether a case goes to court, and how a case is presented in court.
- Have other provinces in Canada developed guidelines for HIV-related criminal cases?Yes. Since 2007, a brief and very limited Sexually Transmitted Diseases guideline has been in place in British Columbia. It applies to HIV/AIDS and other sexually transmitted infections, but only provides guidance on:
- communicable disease reporting by Crown prosecutors to Public Health authorities; and
- the process for review and approval of Crown prosecutors’ decisions to proceed charges.
- What about other countries?Prosecutorial guidelines have been developed in England and Wales as well as in Scotland. Guidelines developed in consultation with the community are recommended by UNAIDS to limit and clarify the law around HIV where necessary.
This web page is NOT LEGAL ADVICE.
For more information and legal advice, contact the HIV & AIDS Legal Clinic Ontario, a Legal Aid Ontario-funded clinic.
Reproduction of this information is encouraged, but copies may not be sold, and the Ontario Working Group on Criminal Law and HIV Exposure must be cited.
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Updated December 2016