In Canada, people living with HIV/AIDS have a legal obligation to disclose their HIV status to sexual partners before engaging in sexual activities that pose a “significant risk” of transmitting HIV. There have been prosecutions under various offences of the Canadian Criminal Code, mostly those relating to the law of assault (assault, aggravated assault, sexual assault and aggravated sexual assault).
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On February 8, 2012, the Supreme Court of Canada hears two landmark cases on the criminalization of HIV non-disclosure — and the Legal Network will be there as an intervener. Find out more about why we think the misuse of the criminal law amounts to a miscarriage of justice and get involved in supporting change at www.aidslaw.ca/stopcriminalization.
Despite over 100 prosecutions having taken place, Canadian courts have yet to clearly define what sex acts are considered under the law as carrying a “significant risk” of HIV transmission. Close scrutiny of the application of the law in Canada raises questions about the fairness of the application of the criminal law, partly because of the failure to consistently understand and apply relevant scientific research.
Civil society and HIV affected communities in Canada have been very active. For instance, in the past year, the Canadian HIV/AIDS Legal Network successfully intervened in two key cases, respectively in front of the Manitoba Court of Appeal and the Québec Court of Appeal. In the latter case, the intervention was made jointly with the Quebec Coalition of Community Based Organizations in the fight against AIDS (COCQ-SIDA). The purpose of the interventions was to ask the courts to clarify ‘significant risk’, and to state that there is no obligation under criminal law to disclose when a condom is used or when a person has an undetectable viral load. Both decisions are currently under appeal to the Supreme Court of Canada. A coalition of NGOs and community based organizations, including the Canadian HIV/AIDS Legal Network and COCQ-SIDA, have been granted intervener status and will be arguing for the decisions of the court of appeals to be maintained.
In 2007, a working group (the Ontario Working Group on Criminal Law and HIV Exposure) comprised of people living with HIV, lawyers, activists, academics, and AIDS service organization staff came together to oppose the current use of the criminal law in relation to HIV non-disclosure in Ontario, and attempt to bring fairness and consistency to the law. The Group has succeeded in obtaining a commitment from the Ontario’s Attorney General to develop prosecutorial guidelines for Crown Prosecutors handling allegations of HIV non-disclosure and has conducted a robust community consultation on the development of such guidelines. The Group is currently pressing Ontario’s Attorney General to honour the commitment to develop the guidelines.
The HIV community and civil society have also been collaborating with researchers, academics, public health authorities and other stakeholders to take various actions, such as informing people living with HIV of the situation, facilitating research, raising awareness on the impact of the use of the criminal law, and providing support to defence lawyers.