The Ontario government is being urged to stop prosecuting HIV-positive individuals who don’t disclose their status to their sexual partners when there was no realistic possibility of transmitting the virus in the first place.
The demand from advocates and lawyers comes in the wake of an announcement Saturday by the federal government that federal Crown attorneys would no longer prosecute cases where an individual’s viral load was suppressed.
“Viral load” is the amount of the HIV virus in a person’s blood, and scientific evidence reviewed by the Public Health Agency of Canada shows that with a suppressed viral load there is no realistic possibility of transmitting the virus.
The federal Crown will also generally no longer prosecute in cases where the viral load was not suppressed, but the person used a condom or only engaged in oral sex — which evidence has also shown poses no realistic possibility of transmission.
As the federal directive only applies to the territories, where the federal government is responsible for all criminal prosecutions, Ontario Attorney General Caroline Mulroney is being called upon to implement a similar order for prosecutions in this province.
“It is high time that the law caught up with science and human rights in a manner that is supportive of HIV-related care, treatment and prevention,” he said. “Without further altering its approach to HIV-related prosecutions, overcriminalizaiton of people living with HIV will continue.”
The directive announced by federal Justice Minister Jody Wilson-Raybould was hailed by activists as long overdue and necessary in a climate where courts across the country have issued different rulings on when disclosure of one’s HIV status was necessary to avoid a criminal charge.
People living with HIV in Canada risk an aggravated sexual assault charge, prison time and being labelled a sex offender if they don’t disclose their status to their sexual partner, and even if the virus was not transmitted.
Courts have previously held that disclosure was not necessary if the person had a suppressed viral load and used a condom, in accordance with a 2012 Supreme Court ruling. But some judges have also acquitted in cases where no condom was used but the viral load was suppressed, citing evolving science on the risk of transmission since the Supreme Court ruling.
The federal directive goes further than a directive the Ontario government announced last year under the Liberals that had also put a halt to prosecutions in cases where the individual had maintained a suppressed viral load. Unlike the federal directive, the Ontario rule does not explicitly ban prosecutions in cases where the viral load was not suppressed but a condom was used properly or the only sexual activity involved was oral sex.
“In issuing the directive, the Government of Canada recognizes the over-criminalization of HIV non-disclosure discourages many individuals from being tested and seeking treatment, and further stigmatizes those living with HIV or AIDS,” the Justice Department said in a statement on Saturday, World AIDS Day.
It made clear that prosecutions would continue in cases of individuals who do not disclose their status when there is a realistic possibility of transmission, such as not having a suppressed viral load and not using a condom.
The federal directive also tells federal prosecutors to pursue non-sexual criminal offences “where this would better align with the individual’s situation, such as cases where the individual’s conduct was less blameworthy.”
While commending Wilson-Raybould for the directive, the Criminal Lawyers’ Association is also calling on her to review the cases of individuals who have been convicted but would not have been charged in the first place under her new directive.
“We implore her not to forget the many people who have been unjustly convicted of serious, sexual offences, despite not having transmitted HIV or having posed a risk to transmit HIV,” the association said in a statement.
“The Criminal Lawyers’ Association calls for a nationwide review of possible wrongful convictions resulting from the persistent use of outdated science in cases where the risk of transmission was actually low.”
Jacques Gallant is a Toronto-based reporter covering legal affairs. Follow him on Twitter: @JacquesGallant