Backgrounder on the Report: Criminal Justice System’s Response to HIV Non-Disclosure

“HIV non-disclosure” describes criminal cases where a person, who knows they are HIV positive and infectious, does not disclose or misrepresents their HIV status prior to sexual activity, and transmits HIV to others or exposes others to a realistic possibility of HIV transmission.

On December 1, 2016, the Honourable Jody Wilson-Raybould, Minister of Justice and Attorney General of Canada, committed to engage provincial and territorial colleagues, affected communities and medical professionals to examine the criminal justice system’s response to non-disclosure of HIV. She also expressed concern that “over-criminalization of HIV non-disclosure may discourage many individuals from being tested and seeking treatment, and further stigmatize those living with HIV and AIDS.”

In response to this commitment, Justice Canada studied the issue with the assistance of the Public Health Agency of Canada, their counterparts in the provinces and territories, and with input from various stakeholders. In September 2017, the criminalization of HIV non-disclosure was discussed at the meeting of Federal, Provincial and Territorial (FPT) Ministers responsible for Justice and Public Safety, where they “re-iterated the importance of an appropriate criminal justice system response to HIV transmission and exposure cases involving people living with HIV who do not disclose their status to sexual partners. FPT ministers agreed to collaborate on possible next steps on this important issue in the coming months.”

Justice Canada’s report on the Criminal Justice System’s Response to HIV Non-Disclosure is the result of a comprehensive review of this complex issue. The report presents the most recent medical evidence on HIV transmission risks, as analyzed by the Public Health Agency of Canada, and key conclusions to inform the criminal law’s response to HIV non-disclosure. In particular, it includes information on:

• HIV in Canada and the effectiveness of HIV treatment
• the most recent medical evidence on HIV transmission risk
• the applicable criminal law
• stakeholder perspectives and recommendations
• international approaches
• public health and criminal justice responses

The report concludes with a summary of the evidence reviewed and conclusions that can be drawn from it.

The report will assist in developing an evidence-based approach to addressing how the criminal justice system responds to cases involving HIV non-disclosure. The Minister of Justice will continue to work with her provincial counterparts on the way forward. Possible next steps include the development of a federal directive for prosecutions in the territories.