Unjust HIV criminalization is a national disgrace: here’s how Canada can end it

Unscientific, unhealthy and unjust: that’s the state of HIV criminalization in Canada, as people living with HIV are being unfairly prosecuted for some of the most serious offences in our law.

On World AIDS Day on Dec. 1, after years of advocacy by community organizations, the federal and Ontario governments recognized the need to limit the “overcriminalization of HIV.” They acknowledged that a person living with HIV who has a suppressed viral load should not be criminally prosecuted because that person poses no “realistic possibility” of transmitting the virus — the Supreme Court of Canada’s legal test for whether a duty to disclose existed.

This is an important first step, but broader reform is needed to end the ongoing misuse of the criminal law against persons living with HIV.

For the federal and Ontario governments’ actions to match their words about ending stigma and discrimination, their respective justice ministers must move immediately to implement long-awaited reforms. There are concrete things they can and must do.

Those actions are set out in a national consensus statement released at the end of November by the HIV community and allies. More than 150 organizations from across Canada added their names to the statement.  

They did so with hope and considerable anticipation. For decades, activists have drawn attention to the plight of people living with HIV facing unjust prosecutions. The relentlessness of these prosecutions is stunning: with more than 200 cases documented to date, Canada has one of the highest rates of HIV criminalization in the world. It is an embarrassing and disgraceful distinction.

But it doesn’t end there. Canada’s approach to HIV non-disclosure is exceptionally punitive, especially when such prosecutions are compared to those for sexual assaults where the sex was actually coerced. The average prison sentence for a person convicted for charges related to HIV non-disclosure (54 months) is more than double the average sentence for sexual assaults (24 months). Conviction also means mandatory lifetime designation as a sex offender.

Canada’s application of the law is also notably out of step with the science on HIV. People are prosecuted even in cases where there was little or no possibility of transmission.

The Community Consensus Statement released shortly before World AIDS Day by the Canadian Coalition to Reform HIV Criminalization calls on provincial attorneys general to adopt sound, evidence-based guidelines for Crown prosecutors to limit the misuse of the law, as has been done elsewhere, such as the United Kingdom.

The statement also calls on the federal government to reform the Criminal Code to limit the unjust use of criminal law. In particular, it calls for HIV non-disclosure to be removed from the reach of sexual assault laws; it’s a misuse of such charges where HIV non-disclosure takes place in the context of sex among otherwise consenting adults. Following international recommendations, the coalition also calls for any prosecutions to be limited to cases where there was actual, intentional transmission of HIV.

It is encouraging, therefore, that Justice Canada’s report recommends that the criminal law should not apply to people who have a suppressed viral load, nor when people living with HIV use condoms or engage only in oral sex. However, the announcement on World AIDS day by the Attorney General of Ontario falls well short of this, as it only commits to refraining from prosecutions in cases where someone has a suppressed viral load.

This isn’t good enough. For example, it means that someone who has correctly used a condom — through which HIV cannot pass — for a consensual sexual encounter is treated the same in law as a violent rapist (and, if convicted, faces potentially years in prison and mandatory designation as a sex offender). This is not justice. At the barest minimum, the conclusions by Justice Canada need to be reflected in clear prosecutorial directives issued by federal and provincial attorneys general across the country.

Canada has allowed terrible wrongs against people living with HIV over the last quarter-century. Since the last World AIDS Day, the federal and provincial justice ministers have had a year to study and discuss this issue as people living with HIV languish in prisons under a regime that has been criticized by experts at home and abroad. It is time now for unequivocal change: no more ignoring a community that has fought tirelessly against stigma; no more ignoring the newest scientific evidence; and no more unjust prosecutions of people living with HIV.

Richard Elliott is a co-author of this piece.

Both Nicholas Caivano and Richard Elliott are lawyers with the Canadian HIV/AIDS Legal Network, which is a founding member of the Canadian Coalition to Reform HIV Criminalization.