Ontario limits criminal prosecutions of HIV-positive people who don’t disclose status

Ontario will no longer criminally prosecute HIV-positive people who don't disclose their status to sexual partners if there is no realistic possibility of transmission, the province announced on Friday as it marked World AIDS Day.

The move comes as the federal government published a study saying that the bar for someone who doesn't disclose their HIV status to be charged with a criminal offence needs to catch up to science.

The Justice Department study pulled together scientific evidence and the current prevalence of HIV in Canada and treatment, and stacked it up against the way the criminal justice system currently handles cases of people who don't disclose their HIV status prior to engaging in sexual activity.

While there's no law specifically related to it in the Criminal Code, non-disclosure can lead to assault or sexual assault charges, because it's been found to invalidate a partner's consent. Current wisdom suggests that if they knew a person had HIV, they wouldn't consent to sexual activity because of the risk of transmission.

Science, however, suggests the risk of transmission is basically negligible if those living with HIV are being treated or taking appropriate precautions, the study concluded.

"It can, therefore, no longer be assumed that a person living with HIV in Canada is at risk of transmitting it."

Ontario's attorney general and health minister on Friday urged Justice Minister Jody Wilson-Raybould to consider Criminal Code reforms to align with that evidence, something advocates have long been urging.

"The scientific conclusions reflect the growing body of evidence that shows that there is no realistic possibility of transmission of HIV if a person is on antiretroviral therapy and has maintained a suppressed viral load for six months," Yasir Naqvi and Eric Hoskins wrote in a joint statement.

Ontario Crown attorneys will no longer proceed with criminal prosecutions against those individuals, they announced.

The provincial ministers also said Ontario will put another $2.7 million to community HIV/AIDS programs, nearly $1 million more for harm reduction outreach workers and an additional $3.4 million to improve access to harm reduction supplies.

The federal study found that the law is not being applied consistently throughout the country, and the way it is being used needs to take into account a range of factors, including the scientific risks of transmission and degree of blameworthiness. For example, the study noted, not everyone has equal access to HIV treatment or other services to help them manage the risks.

While the study's publication coincidence with World AIDS Day, it also follows a landmark apology in the House of Commons this week for past state-sanctioned discrimination against the LGBTQ community in Canada.

The milestone saw many advocates raise concerns about the current regime of criminalization the non-disclosure of HIV, noting it had been a year since Wilson-Raybould had promised to look into it and consider providing better guidance to prosecutors.

But Wilson-Raybould only has control over federal prosecutions and while she'll use the results of the report to develop guidelines, it remains to be seen whether other provinces will follow suit.

The Canadian Coalition to Reform HIV Criminalization had issued a statement earlier this week, endorsed by more than 150 organizations, urging the Liberal government to go beyond guidelines and also reform the Criminal Code so sexual assault charges can't be used.

The Justice Department report said criminal law reform could result in greater legal certainty but there are other issues.

"Law reform impacts the scope of the criminal law, not decisions about how to address cases that fall within that scope," the report said.

"Moreover, law reform may require enacting HIV-specific provisions, which many stakeholders have opposed on the basis that this would increase the stigma experienced by persons living with HIV."

In a statement, Wilson-Raybould said the report provides an evidence-based way to address HIV non-disclosure in the criminal justice system and she'll continue working with the provinces on next steps.

"It clearly demonstrates that our criminal justice system must adapt to better reflect this progress as well as current scientific evidence on HIV-AIDS," she said.

The study was published also as the federal Liberals announced $36.4 million in projects designed to address AIDS.