Limiting HIV prosecutions: Nice talk, but little action

November 5, 2018

It’s past time for action by the federal government.

On World AIDS Day 2016, the federal Justice Minister declared that Canada must address the “overcriminalization of HIV” that contributes to HIV stigma and undermines public health. She also committed to working with the provinces, affected communities and medical professionals to this end.

This was the first time any government in Canada recognized the harms of HIV criminalization and committed to action and we welcomed the statement.

A year later, on World AIDS Day 2017, the Justice Minister released Criminal Justice System’s Response to the Non-Disclosure of HIV, a report that echoes many of the concerns we have been raising in the media, in the courts and with policymakers. The report explicitly suggests some guidance to prosecutors as one way of limiting HIV criminalization. It also mentions Criminal Code reforms as another option.

It seemed that the Government of Canada was listening to the Legal Network, the Canadian Coalition to Reform HIV Criminalization (CCRHC) and our Community Consensus Statement on ending unjust HIV prosecutions, which is endorsed by more than 160 organizations across Canada.

Since the release of the Justice Canada report, we have met on numerous occasions with the Minister’s office and Justice Canada, pressing them to take action on their own recommendations. We have kept them up to date on relevant developments, such as the Expert consensus statement on the science of HIV in the context of the criminal law, which was released in July at AIDS 2018. At that conference, Canada’s Health Minister reiterated the federal government’s concern about HIV criminalization and the stigma it engenders.

Ongoing discussions indicated that the Minister was interested in developing a directive for federal prosecutors, which can be done reasonably quickly and is a necessary part of the overall solution. (Amendments to the Criminal Code are also needed, although getting the right amendments drafted, and passed in Parliament, will take more time.)

But now, as we approach World AIDS Day 2018 nearly a year after the Justice department’s report, there is still no commitment by the federal government.  And next year, there will be a federal election and a possible change in government.

There is still time for the Minister, working with the HIV community and scientific experts, to develop prosecutorial guidelines that, at a bare minimum, reflect the recommendations in her own department’s report.

But the window for action is closing.

After many months of meetings and discussions, we have written an open letter to the federal Justice Minister calling on her to address the unjust criminal prosecutions against people living with HIV. This needs to happen without delay.

And since most HIV prosecutions are handled by provincial prosecutors, the Legal Network and other CCRHC partners have also been engaging with provincial Attorneys General and other government officials:

 

  • We have sent all provincial Attorneys General the international scientific consensus statement, and have requested meetings to discuss the need for science-based guidance for prosecutors.
  • Both Ontario and Alberta have now confirmed they will not prosecute allegations of HIV non-disclosure in cases where the accused person living with HIV has a suppressed viral load (i.e., under 200 copies/ml) for at least six months. This is progress, but they need to go substantially further in limiting prosecutions in numerous other circumstances.
  • Discussions continue with the ministers of health and justice in Quebec, but no concrete commitments have been made, and there has been a recent change of government; it remains to be seen whether this will affect possible progress on guidance for prosecutors.
  • In British Columbia, developments suggest prosecutions are unlikely against a person who has a suppressed viral load. However, earlier this year the BC Prosecution Service adopted a policy that does not even state this clearly. In April, the BC Attorney General publicly declared his concern about the overly broad application of the criminal law, and so we’ll continue to pressure him to provide a clear directive to prosecutors that will limit unjust prosecutions.

 

With World AIDS Day 2018 fast approaching, we will continue to mobilize community in the coming weeks to demand action by our federal and provincial governments to put an end to the unjust prosecutions that still continue.

In Solidarity,

The Legal Network

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