Attorney General of Canada to issue Directive Regarding Prosecutions of HIV Non-Disclosure Cases
December 1, 2018 - Ottawa, ON - Department of Justice Canada
The Government of Canada is committed to a fair, responsive and effective criminal justice system that protects Canadians, holds offenders to account, supports vulnerable people, and respects the Canadian Charter of Rights and Freedoms. Today, on the 30th anniversary of World AIDS Day, the Honourable Jody Wilson-Raybould, Minister of Justice and Attorney General of Canada, announced that she will issue a directive related to the prosecution of HIV non-disclosure cases under the federal jurisdiction of the Public Prosecution Service of Canada.
In issuing the Directive, the Government of Canada recognizes the over-criminalization of HIV non-disclosure discourages many individuals from being tested and seeking treatment, and further stigmatizes those living with HIV or AIDS.
This Directive is a real step toward ensuring an appropriate and evidence-based criminal justice system response to cases of HIV non-disclosure. In so doing, it will harmonize federal prosecutorial practices with the scientific evidence on risks of sexual transmission of HIV while recognizing that non-disclosure of HIV is first and foremost a public health matter.
On December 1, 2016, Minister Wilson-Raybould committed to working with her provincial and territorial counterparts, affected communities, and medical professionals to examine the criminal justice system’s response to non-disclosure of HIV status. A year later, on December 1, 2017, the Department of Justice issued its report, The Criminal Justice System's Response to Non-Disclosure of HIV. The Directive will draw upon the recommendations made concerning prosecutorial discretion. It will provide guidance to federal prosecutors in the three territories, ensuring coherent and consistent prosecution practices.
In its 2012 Mabior decision, the Supreme Court of Canada made it clear that persons living with HIV must disclose their HIV status prior to engaging in sexual activity that poses a “realistic possibility of transmission”; and the most recent scientific evidence on the risks of sexual transmission of HIV should inform this test.
The Directive to be issued by the Attorney General of Canada will reflect the most recent scientific evidence related to the risks of sexual transmission of HIV, as reviewed by the Public Health Agency of Canada, as well as the applicable criminal law as clarified by the Supreme Court of Canada. The Directive will state that, in HIV non-disclosure cases, the Director:
- shall not prosecute where the person living with HIV has maintained a suppressed viral load (i.e. under 200 copies of the virus per millilitre of blood) because there is no realistic possibility of transmission;
- shall generally not prosecute where the person has not maintained a suppressed viral load but used condoms or engaged only in oral sex or was taking treatment as prescribed unless other risk factors are present, because there is likely no realistic possibility of transmission in such cases;
- shall prosecute using non-sexual criminal offences instead of sexual offences where this would better align with the individual’s situation, such as cases where the individual’s conduct was less blameworthy; and
- must take into account whether a person living with HIV has sought or received services from public health authorities, in order to determine whether it is in the public interest to pursue criminal charges.
The criminal law will continue to apply to persons living with HIV if they do not disclose, or misrepresent, their HIV status before sexual activity that poses a realistic possibility of HIV transmission.
The Director of Public Prosecutions Act requires that directives from the Attorney General of Canada be published in the Canada Gazette. The Directive will take effect upon publication in Part I of the Canada Gazette on Saturday, December 8, 2018.
“Our criminal justice system must be responsive to current knowledge, including the most recent medical science on HIV transmission. I am proud of this important step forward in reducing the stigmatization of Canadians living with HIV while demonstrating how a scientific, evidence-based approach can help our criminal justice system remain fair, responsive and effective.”
The Honourable Jody Wilson-Raybould, P.C., Q.C., M.P.
Minister of Justice and Attorney General of Canada
World AIDS Day originated at the 1988 World Summit of Ministers of Health on Programmes for AIDS Prevention. It is marked on December 1of every year. This year’s theme is “Know your status”.
Canada’s efforts to detect and treat HIV have resulted in the majority of persons living with HIV in Canada knowing their status and receiving appropriate treatment.
There is no HIV-specific offence in the Criminal Code. However, persons living with HIV who do not disclose their status may be charged with aggravated sexual assault because the non-disclosure is found to invalidate their partner’s consent to engage in sexual activity in certain circumstances. This is the most serious sexual offence in the Criminal Code.
The Directive will take into consideration current scientific evidence and research on HIV transmission. It will provide clear direction to federal prosecutors in the territories when exercising their discretion to decide whether to prosecute HIV non-disclosure cases. The research supporting the development of the Directive was compiled by the Public Health Agency of Canada, informed the Department of Justice Canada’s Report on the Criminal Justice System's Response to Non-Disclosure of HIV, and was published in the Canadian Medical Association Journal.
The Directive is the result of significant engagement and consultation with LGBTQ2+ advocates, including the HIV/AIDS Legal Network, leading academics in the field, health professionals, as well as the Director of Public Prosecutions.
For more information, media may contact:
Office of the Minister of Justice
Department of Justice Canada
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