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Liberal MP Randy Boissonnault said the public-health system is the place to manage people with infectious diseases, not the justice system.Adrian Wyld/The Canadian Press

Liberal MP Randy Boissonnault, the Prime Minister’s special adviser on LGBTQ issues, says the government needs to stop prosecuting people for failing to disclose their HIV status to sexual partners.

The House of Commons justice committee tabled a report last week recommending that HIV non-disclosure be removed from the aggravated sexual assault section of the Criminal Code to a separate provision, and to end all criminal prosecutions of HIV non-disclosure except where there is actual transmission of the virus. The committee – which is dominated by Liberal MPs – also recommended that Justice Minister David Lametti establish a federal-provincial working group to develop a common prosecutorial directive for non-disclosure laws across Canada.

Under the Criminal Code, anyone who is HIV positive and does not disclose their status to a partner before a sexual encounter can be prosecuted for aggravated sexual assault.

Mr. Boissonnault, who sits on the committee, said the public-health system is the place to manage people with infectious diseases, not the justice system. Only intentional and actual transmission of a transmittable disease should be prosecuted, the Liberal MP said.

He noted that under the current criminal law, someone can be charged for HIV non-disclosure even if they have a suppressed viral load – meaning the HIV is undetectable – or use a condom.

“If you’ve done all those things and if you didn’t disclose, then you can still be charged – that is a perversion of justice,” Mr. Boissonnault said.

The federal Conservative Party submitted a dissenting report advising that HIV non-disclosure be prosecuted in cases of deliberate, reckless or negligent transmission.

Rachel Rappaport, the press secretary for Mr. Lametti, said in an e-mailed statement that the government issued a federal directive in 2018 limiting the prosecution of HIV non-disclosure to cases in which there was a realistic possibility of transmission, in response to the obstacles that broad criminalization creates to Canadians getting tested and seeking treatment. Ms. Rappaport said the minister’s office will review the justice committee’s report before commenting further.

Mr. Boissonnault said the federal directive only applies to the territories, adding that Ontario and B.C. have issued similar directives.

Sean Hosein, a science and medicine editor at the Canadian Aids Treatment Information Exchange, said that through treatment, individuals who are HIV positive can achieve a suppressed viral load.

“Numerous clinical trials have found that people who achieve a suppressed viral load, and maintain that through continuous use of their medicines, do not pass on HIV to their sexual partners,” Mr. Hosein said.

Karen Segal, a lawyer for the Women’s Legal Education and Action Fund, said HIV non-disclosure should only be criminally prosecuted when there is actual transmission, and when a person acts recklessly in transmitting the virus. She said recklessness is a more appropriate criminal standard than intentional transmission because it is easier to prove, given the methods available to prevent transmission – such as contraception or anti-viral medication.

Ms. Segal also said the current law has led to an increase of women being convicted of aggravated sexual assault, particularly Indigenous and racialized women. She said there have been cases of women found guilty of sexual assault because they did not disclose their status when they were sexually assaulted.

Mr. Boissonnault said the stigma surrounding HIV must end for Canada to reach its “90-90-90” targets – a goal of 90 per cent of people knowing their HIV status, 90 per cent of people who are HIV positive being on treatment, and 90 per cent of people on treatment achieving a suppressed viral load.

Currently, Mr. Boissonnault said 86 per cent of Canadians know their HIV status, 81 per cent are on treatment and more than 91 per cent who are receiving treatment have viral suppression.

Mr. Boissonnault said he will push Mr. Lametti to set the working group up so they can begin meeting over the summer while members of Parliament are campaigning.

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