Reforming the criminal law regarding HIV non-disclosure: Government of Canada launches public consultation
October 20, 2022 – Ottawa, Ontario – Department of Justice Canada
The Government of Canada is committed to ensuring that our criminal justice system keeps communities safe, supports victims, and holds offenders to account, while respecting Charter rights.
As promised during the International AIDS conference in July, the Honourable David Lametti, Minister of Justice and Attorney General of Canada, today announced the launch of a public consultation on reforming the criminal law regarding HIV non-disclosure.
“HIV non-disclosure” refers to criminal cases where a person living with HIV, who is aware of their status and knows they are infectious, does not disclose their HIV status before sexual activity that poses a realistic possibility of transmission. The consultation will seek input from stakeholders, persons with lived experiences, and the public on possible criminal law reforms related to HIV non-disclosure. Participants are invited to share their views until January 13, 2023.
Right now, persons living with HIV who do not disclose their status prior to otherwise consensual sexual activity can be charged with different offences. This includes aggravated sexual assault, which is the most serious sexual assault offence in the Criminal Code. This is because, in certain circumstances, the non-disclosure of one’s HIV status can invalidate another person’s consent to engage in sexual activity. However, criminalization can lead to the stigmatization of people living with HIV, which can often discourage individuals from being tested or seeking treatment.
There has been considerable progress in terms of HIV treatment and scientific evidence on rates of transmissibility. For these reasons, holding consultations is key to creating a path forward that follows science and protects victims while reducing the stigma of those living with HIV.
This consultation is one of the commitments made by the federal government in Canada’s first Federal 2SLGBTQI+ Action Plan, launched in August. Reforming the criminal law regarding HIV non-disclosure is an essential step in ensuring that Canadian justice policy advances the dignity and equality of 2SLGBTQI+ people.
“HIV is first and foremost a public health matter and non-disclosure of HIV status is a complex issue. Our government recognizes that the criminalization of people living with HIV can lead to stigmatization and significant hardships. This is why we are consulting Canadians on the best approach to reform the criminal law regarding HIV non-disclosure. It will help us find solutions, and will lead to better outcomes for affected populations.”
The Honourable David Lametti, P.C., Q.C., M.P.
Minister of Justice and Attorney General of Canada
An estimated 63,000 people are living with HIV in Canada. Of these people, an estimated 1 in 10 are unaware of their status. In 2020, 1,639 newly diagnosed cases of HIV were reported in Canada. The majority of people diagnosed with HIV are receiving appropriate treatment.
Current criminal law applies to persons living with HIV who know their status and that they are infectious, if they fail to disclose, or misrepresent, their HIV status prior to sexual activity that poses a realistic possibility of HIV transmission.
On December 1, 2017, the Department of Justice Canada released the Criminal Justice System’s Response to Non-Disclosure of HIV, a report that included a summary of the scientific evidence on sexual transmission of HIV produced by the Public Health Agency of Canada.
On December 8, 2018, the Attorney General of Canada issued a Directive related to the prosecution of HIV non-disclosure cases under federal jurisdiction. The Directive specifies, among other things, that prosecutions should not occur when an individual takes appropriate measures to prevent transmission of HIV (such as taking appropriate treatment to maintain a supressed viral load), and that prosecutors must consider whether criminal charges are in the public interest.
Canada was the first country to publicly endorse the Undetectable = Untransmittable (U=U) campaign in 2018. U=U helps people live longer by stopping the spread of HIV through prevention, testing and treatment.
The Government of Canada supports a comprehensive approach to addressing HIV and other Sexually Transmitted and Blood-Borne Infections (STBBI) in Canada. Through its Five-year Action Plan on STBBI, the Government of Canada has made progress on its commitments to reduce the impact of STBBI in Canada by 2030.
The Federal 2SLGBTQI+ Action Plan was developed with community leaders, researchers, and organizations. It speaks to the concerns of diverse members of 2SLGBTQI+ communities across the country and uses an intersectional, holistic, and long-term approach to breaking down barriers and fighting the discrimination and oppression of 2SLGBTQI+ Canadians.
- Reforming the criminal law regarding HIV non-disclosure – Online Public Consultation
- Directive of the Attorney General Regarding Prosecutions of HIV Non-Disclosure Cases
- Canada’s First Federal 2SLGBTQI+ Action Plan
- Reducing the health impact of sexually transmitted and blood-borne infections in Canada by 2030: A pan-Canadian STBBI framework for action
- Accelerating our response: Government of Canada five-year action plan on sexually transmitted and blood-borne infections
Office of the Minister of Justice
Department of Justice Canada
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