Wednesday , May 12 2021

The Justice Department issues new guidelines for prosecution for non-disclosure of HIV status

The Canadian Legal Network for HIV / AIDS welcomed the new moves issued by the federal government to limit what it calls unjust prosecution of people with HIV.

Jody Wilson-Raybould, Justice and Law Attorney of Canada, issued the new directives on Saturday, the 30th anniversary of World Aids Day.

The pre-crimination of non-disclosure of HIV discourages many of the tests and requires treatment, she said in a press release.

The Federal Justice Department has been working with its provincial counterparts since 2016 to revamp directives on the prosecution for HIV detection.

The new directives state that there should be no criminal prosecution when a person living with HIV maintains a suppressed viral load (ie, under 200 copies of the milliliter blood virus) because there is no real possibility of transmission.

"Quite positively," was how Richard Elliott, executive director of the Canadian Legal Network for HIV / AIDS, summed up his response to the announcement.

"For many years we have been engaged in many forms of advocacy to try to limit excessive widespread use of the criminal law against people living with HIV, so we are very pleased that today we saw that those efforts finally paid off and that the public prosecutor issued it this directive, "Elliot told PS Toronto.

In 2012, the Supreme Court of Canada ruled that people living with HIV must declare their HIV status before engaging in sexual activity, which is a "real possibility of transmission". The new directives are trying to clarify the law in cases where there is no reasonable risk of transmission.

Justice Minister and Public Prosecutor Jody Wilson-Reyball announced new directives related to the prosecution of HIV cases. (PS News)

The General Public Prosecutor should not be prosecuted where:

  • The person did not retain the suppressed viral load, but used condoms or was only engaged in oral sex or taking the medicine as prescribed, unless there are other risk factors.
  • Non-sexual crimes would be more appropriate than sexual offenses, as they would better align with the situation of the individual, such as when the conduct of the individual was less guilty.
  • If a person living with HIV has requested or received services from public health authorities, this must be taken into account when determining whether it is in the public interest to file a criminal complaint.

Criminal law will continue to apply to people living with HIV if they do not reveal or misrepresent their HIV status before sexual activity is a real possibility for HIV transmission.

Wilson-Reybull said the new directives are in line with the latest scientific evidence about the risks of sexually transmitted HIV.

"Our criminal justice system must be responsible for current knowledge, including the latest medical science for HIV transmission," she said.

She called the changes "an important step forward in reducing the stigma of Canadians living with HIV".

"The directive may and should go even further"

Community organizations have long advocated alternatives to prosecute, Elliott said.

"The directive may and should go even further," he said, but in general he was very pleased that the public prosecutor listened.

"She listened to the community, listened to legal experts, listened to people living with HIV, listened to scientists and asked her prosecutors to be more restrained in the implementation of criminal charges."

Elliott said that in terms of immediate application of the directives, people in Nunavut, the Northwest Territories and Yukon would benefit because they belong to federal jurisdiction.

He said that in 10 provinces, where most Canadians, including those living with HIV, actually live, it is the provincial governments and provincial lawyers and their royal lawyers who are responsible for prosecuting crimes.

She sets the tape, in a sense, about what the provincial lawyer generals should do.– Richard Elliott

"For such a directive to the Crown prosecutors to be applicable in the provinces, it will have to be adopted by the provincial lawyers, but it in a sense sets the rights of what the provincial lawyer generals should do and it puts it in place no provincial public prosecutor is yet ready to set up. "

In 2017, Ontario reported that it would no longer prosecute criminal offenses HIV-positive people who did not disclose their status as sex partners if there is no real possibility of transmission. (Mary Alttafer / Associated Press)

On World Aids Day in 2017, the Ontario government announced it would no longer be prosecuting HIV-positive people who did not disclose their sex partner status if there is no real possibility of transmission.

The announcement was made after a federal government released a study stating that a bar for anyone not revealing its HIV status to be charged with a crime should get closer to science.

The Justice Department study has gathered scientific evidence and the current prevalence of HIV in Canada and treated it and directed it to the way the criminal justice system has handled cases of people who do not reveal their HIV status before engaging in sexual activity.

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