Why Guidelines?

  • The Background
    People living with HIV have a duty under Canadian criminal law to disclose their HIV status to sex partners before having sex that carries a significant risk of HIV transmission. People living with HIV have been charged, convicted and sent to prison when they have not disclosed—even when no one became infected with HIV. The criminal law also applies to other sexually transmitted infections. But with the exception of three cases (involving herpes, Hepatitis B and Hepatitis C), only people living with HIV have been prosecuted. HIV is not easy to transmit. And HIV medications reduce the risk of transmission and have transformed HIV for many people into a chronic manageable illness.
  • The Problems
    Courts have not clearly defined in law what counts as a significant risk of HIV transmission. This has led to an expansive use of the criminal law. HIV-positive people don’t know what the criminal law expects of them. Some have been charged and convicted when they practiced safer sex or had only oral sex. Others have been found not guilty. The criminal justice system, including courts, is ill-equipped to address complex social problems like HIV disclosure and HIV prevention. People living with HIV in Canada face stigma and discrimination. HIV disclosure can lead to a loss of privacy, employment, housing, friends and family, and can sometimes lead to violence. Paradoxically, over-reliance on the criminal law might make HIV disclosure more difficult and might hinder HIV prevention efforts. The criminal law and high-profile criminal prosecutions are making it more difficult to support people living with and at risk of HIV infection, many of whom are already socially marginalized. In light of the systemic discrimination Black people of African and Caribbean descent have historically faced in Ontario society and in the criminal justice system, the significant number of prosecutions against Black men is of special concern and requires further examination.The criminal law will not stop the HIV epidemic. No one wants to be infected with HIV. An HIV diagnosis can be devastating, especially for a person who feels he or she has been deceived. People may feel anger, betrayal, grief and a desire for retribution. But criminal charges, trials and convictions are not a “cure” for HIV. Criminalization of HIV non-disclosure in Canada has gone forward without an informed public debate, without clear rules about when it is appropriate to use the criminal law, and without examining the effect of criminal law on HIV care and prevention. While some situations of HIV non-disclosure may warrant prosecution, we view the current expansive use of criminal law with concern.
  • The Solution
    Prosecutorial guidelines are an important part of the solution. Guidelines can help police and Crown Prosecutors handle HIV-related criminal complaints in a fair and non-discriminatory manner. Guidelines can help ensure that cases are informed by current medical and scientific knowledge about HIV and the social contexts of living with HIV.
  • What is the guideline campaign and who is involved?
    While criminal prosecutions may be warranted in some situations of HIV non-disclosure, we view the current expansive use of criminal law with concern. Criminalization of HIV non-disclosure in Canada has gone forward without an informed public debate, without clear rules about when it is appropriate to use the criminal law, and without examining the effect of criminal law on HIV care and prevention. The guidelines campaign is being organized by the Ontario Working Group on Criminal Law and HIV Exposure. The Working Group is made up of people living with HIV and representatives of many community-based AIDS organizations from across Ontario. We are calling on Ontario’s Attorney General to immediately undertake a process to develop prosecutorial guidelines for cases involving allegations of HIV non-disclosure.
  • When do people have a legal duty to disclose their HIV-positive status to sex partners?
    Parliament did not change the Criminal Code to include an HIV/AIDS-specific crime. Canadian courts have created the law about HIV non-disclosure. The Supreme Court of Canada decided in the Cuerrier case that the criminal law has a role to play in HIV prevention. It ruled that people living with HIV have a legal duty to disclose their HIV status to sex partners before engaging in sex that carries a significant risk of HIV transmission. So a person who does not disclose his or her HIV status can be convicted of the Criminal Code offence of aggravated sexual assault even when a sex partner does not become infected with HIV. But the Supreme Court did not clearly define the most important part of the legal test: What counts legally as a significant risk? As a result, trial court decisions have been confusing and often contradictory.
    • Some courts have ruled that sexual intercourse using a condom does not present a legally significant risk of HIV transmission. Others have said it can be. Yet another court has said that to avoid conviction an HIV-positive person must not only wear a condom but also have an undetectable amount of HIV in their blood (also known as undetectable HIV viral load).
    • One court convicted a person living with HIV for having oral sex without a condom. Another court found a person not guilty.

    Recently, one person has been convicted of murder, and police have laid attempted murder charges.

  • Why is the current criminal law a problem for people living with HIV?
    Some people living with HIV have expressed serious concerns about using the criminal law against people who allegedly have not disclosed their HIV-positive status to a sex partner.
    • People living with HIV in Canada face stigma and discrimination. HIV disclosure can lead to a loss of privacy, employment, housing, friends and family, and sometimes violence. The criminal law does not recognize this reality.
    • Courts have not clearly set out the circumstances under which people living with HIV have a legal duty to disclose their HIV-positive status. The law has not defined with certainty what sex acts, under what circumstances, involve a legally significant riskof HIV transmission.
    • Vindictive and abusive spouses, lovers and exes have used the criminal law as a way to control people living with HIV. Spouses, lovers and exs have threatened to falsely accuse their HIV-positive partners of not disclosing their HIV status.
    • Many court cases involving alleged HIV non-disclosure have been decided based on credibility. Yet it is difficult if not impossible for people to prove that they disclosed their HIV-positive status, or practiced safer sex.
    • Black people of African and Caribbean descent have historically faced systemic discrimination in Ontario society and the criminal justice system. Given this context, and the number of Black men who have been prosecuted for alleged HIV non-disclosure, Black men may be significantly affected by these prosecutions.
    • Even when a court finds a person not guilty, his or her life may have already been ruined. A photo and private medical information may have been reported in the media. Before a trial takes place he or she has been judged “guilty” in the court of public opinion. And he or she may have spent many months in jail awaiting trial.

  • What concerns do people working in the field have with using the criminal law to prevent HIV?
    Public health staff, community health and social service workers, HIV outreach and prevention workers, mental health professionals and human rights and civil liberties advocates are troubled by the current expansive use of the criminal law. Many people living with or at risk of getting HIV are already socially marginalized. As front-line workers, including people living with HIV, we know that the criminal law is making it more difficult to support people living with HIV. It might also be making it more difficult to prevent new HIV infections.
  • What role does public health play in preventing HIV?
    The Ontario Health Protection and Promotion Act imposes on public health authorities a legal duty to control the spread of certain infectious diseases, including sexually transmitted infections like HIV. It also gives public health authorities the legal powers they need to protect the public’s health. Public health:
    • Provides information, counselling, testing, surveillance and partner follow-up for HIV and other sexually transmitted infections.
    • Can order a person living with HIV to take action so that he or she does not put another person’s health at risk (known as a section 22 order).
    • Can apply to a court to enforce the section 22 order where there is evidence that the person is not following the order

  • Does it ever make sense to use the criminal law against people living with HIV who fail to disclose their HIV status to sex partners?
    Public health authorities in Ontario may require more resources to effectively address difficult situations where people engage in behaviours that pose a risk of HIV transmission to others. Even with adequate resources, there may be rare cases when public health powers may not be effective to prevent someone from knowingly putting a sex partner at risk of HIV infection. After extensive consultation and study, the Joint United Nations Programme on HIV/AIDS (UNAIDS) recognized a limited role for the criminal law, in cases of intentional transmission—where a person knows his or her HIV-positive status, acts with the intention to transmit HIV, and successfully transmits HIV. UNAIDS also takes the position that the criminal law should not be applied where an HIV-positive person took reasonable measures to reduce risk of transmission, such as practising safer sex through using a condom or other precautions to avoid higher risk acts.
  • How can we change the situation?
    There are two ways to change the criminal law:
    • Parliament can amend the Criminal Code by passing a new law. It can take years of advocacy to convince Members of Parliament that a new law is needed. And if an issue is politically contentious or unpopular, the law might never be changed, or a new law might be worse than the old one.
    • Courts, through their decisions, can interpret or re-interpret existing Criminal Code offences. In concert with lawyers, we are working on this. But it can take many years to bring about change through the courts.

    But there is a way to change not the law itself, but how Ontario police and Crown Counsel use the law. The Attorney General of Ontario can issue prosecutorial guidelines.

  • What are prosecutorial guidelines?
    The Attorney General issues prosecutorial guidelines to assist Crown Counsel in making decisions and to promote high standards and consistency in how criminal cases are handled. Crown Counsel, sometimes called Crown Prosecutors, are lawyers responsible for the prosecution of criminal cases. Prosecutorial guidelines are rarely absolute and do not take decision-making responsibility away from Crown Counsel. They provide the overall philosophy, direction and priorities of the Attorney General and set out detailed practice guidance for Crown Counsel.Examples of criminal offences covered by Ontario prosecutorial guidelines include:
    • hate crimes and discrimination
    • sexual offences
    • spouse/partner offences

    Ontario’s Crown Policy Manual is available at: www.attorneygeneral.jus.gov.on.ca/english/crim/cpm.

  • Do prosecutorial guidelines apply to police and courts?
    No. However, Crown Counsel play a pivotal role in the criminal justice system. Decisions by Crown Counsel under prosecutorial guidelines can influence the charges that police lay, whether a case goes to court, and how a case is presented in court.
  • What about other countries?
    In 2008, the Crown Prosecution Service (CPS) of England and Wales published legal guidance entitled, Intentional Or Reckless Sexual Transmission of Infection. That guidance recognizes that this area of criminal law is “exceptionally complex,” and sets out how prosecutors should deal with cases where there is an allegation that the accused has passed on an infection during consensual sexual activity. The guidance covers issues such as:
    • appropriate use of scientific, medical and factual evidence
    • safer sex
    • interests of complainants and witnesses

  • How might Ontario prosecutorial guidelines help people living with HIV?
    Guidelines might:
    • Clarify the circumstances under which prosecution is appropriate and help ensure that people living with HIV will not be prosecuted where there was no real risk of HIV transmission.
    • Help ensure that criminal investigations and prosecutions are informed by a complete and accurate understanding of current medical and scientific research about HIV and the risk of HIV transmission, and take into account the social contexts of living with HIV.
    • Help ensure that police and Crown Counsel handle HIV-related criminal complaints in a fair and non-discriminatory manner.
    • Make clear that the law applies to all sexually transmitted infections, so that HIV is not singled out and stigmatized.

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