Carving a Path Towards Decriminalizing HIV in Canada

Before starting my internship at the Canadian HIV/AIDS Legal Network, I was unaware of the severe consequence that accusations of HIV non-disclosure have had on thousands of people living with HIV across Canada. Canada remains fifth in the world in criminalizing individuals for not disclosing their status and continues to hold the unfortunate and unique position of prosecuting non-disclosure cases under the offence of aggravated sexual assault. Those convicted, including many who may themselves be victims of sexual assault, abuse, or extortion by their accuser, face the threat of life sentences and a mandatory registration as a sex offender. Regardless of whether there was a “realistic possibility” of transmission or the virus was actually transmitted, the knowledge that they could be charged and convicted for HIV non-disclosure remains a frightening reality for many in Canada and indeed around the world.

Coming to understand this shocking fact in a country I have always been proud to call a champion of human rights was deeply disturbing.  As an openly gay man who understands all too well the impact that government policy has had upon LGBTQ+ people and their access to dignity, I was ashamed of my government — and will continue to be until HIV decriminalization advocates are heard and reform efforts are realized.

Thankfully, despite this grim legal landscape for HIV non-disclosure cases in Canada, there is also ample reason for me to believe that positive reform may be within reach. As part of my internship, I had the privilege of assisting at the second meeting of the Canadian Coalition to Reform HIV Criminalization (CCRHC) on June 12 and 13. The day following these meetings, the Canadian HIV/AIDS Legal Network also held a larger Symposium on HIV and human rights focused on HIV criminalization.  

As the minute-taker at the CCRHC meetings, I was introduced to the challenging yet rewarding process that is coalition building. It was remarkable to see how a large group of people with a diverse set of viewpoints could share their opinions and work toward a common set of goals. Tough questions were raised, such as how to reconcile the risks of pursuing legislative reform when it could ultimately lead to a new offence with its own adverse consequences. In the end, however, compromises were struck and priorities were laid out, while other issues were left to be decided when more information on the future political landscape becomes available. Witnessing this valuable work allowed me to realize firsthand how reform efforts are championed and the significance of building consensus to achieve a common advocacy goal.

The Symposium on HIV decriminalization that followed provided a forum to attract public attention to decriminalization efforts across Canada. Canada’s Attorney General, the Hon. David Lametti opened the Symposium and spoke in support of decriminalization efforts. He committed his government to pushing decriminalization efforts further should his party win re-election in the fall. Survivors of decriminalization shared their stories in a public space, bringing an important personal viewpoint to the fore, and the researchers presented the current science on the transmission of HIV. The Symposium was an incredible day that showed me the importance of public relations and communications strategy in advocacy, as well as the power of first-person storytelling.

In the week following these critical meetings, Canada saw yet another watershed moment for HIV criminalization reform. The federal Justice Committee released a report that called for the end of prosecutions of non-disclosure under aggravated sexual assault laws and instead advocated for a new offence that would only criminalize cases where the virus has actually been transmitted. This would significantly limit the current “realistic possibility” of transmission standard. While these findings are positive steps towards the CCRHC’s ultimate goal of complete decriminalization, less favourable aspects of the report included the recommendation that this new offence encompass other communicable diseases within its scope, as well as the potential for individuals to be charged with non-disclosure based on a reckless standard of intent. While these recommendations would create a criminalization scheme that would go further than the intentional standard for which the CCRHC has advocated, a law based on these recommendations would nevertheless represent significant progress towards narrowing the ability for the criminal law to target people living with HIV.

However, despite the report’s favourable recommendations, the CCRHC is not celebrating just yet. The Justice Committee’s report is only an early success in a long legislative process, with several more steps required to pass such recommendations into law. The political uncertainty created by the upcoming October federal election poses a significant potential barrier. The Justice Committee’s report was not unanimous and was broken into a majority report written by the Liberal majority and two dissenting opinions, written by the NDP and the Conservative parties respectively. The majority findings of the report are outlined above, while the dissenting opinion of the NDP proved to be more in line with the CCRHC’s goals by rejecting the potential inclusion of a reckless standard. However, the Conservative minority report significantly differed from the CCRHC’s proposals, advocating for continued criminalization of a “realistic possibility of transmission,” as opposed to actual transmission, and a refusal to rule out prosecution for sexual acts where a condom was used, or only oral sex was engaged in. Therefore, the distinct possibility of a federal Conservative majority following October’s election could see the halting of most, if not all, of the positive aspects of the CCRHC’s legislative reform efforts.

The Justice Committee’s report acts as an illustration to me of the both the rewards and frustrations inherent in human rights advocacy work.  On one hand, due in large part to the lobbying efforts and testimony offered by members of the CCRHC, the current government has finally acknowledged the harm that these prosecutions are doing to people living with HIV. But on the other hand, their subsequent recommendations for change may never be realized because of future political uncertainty. While coming to terms with this reality is difficult, in the end, my internship has taught me that allowing this possibility to deter us from continuing to push for change is about the worst thing an advocate can do. Governments change, but what remains consistent is the ability for advocacy groups to continue to push for needed reform. Should the government change in the fall, reform efforts will recalibrate and the fight for justice can and must continue!

Reeve Kako is a law student at McGill University who has a particular interest in LGBTQ+ advocacy. He recently completed a summer internship with the Legal Network.

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