Since the then federal Minister of Justice’s Jody Wilson-Raybould’s World AIDS Day announcement, advocacy has continued apace with BC’s Attorney General David Eby – with strong efforts by Positive Living BC, the Canadian HIV/AIDS Legal Network, Dr. Peter AIDS Foundation and PAN, to name but a few.
There was definitely much to be encouraged by with the new federal directives, which were officially published in the Canada Gazette on December 8th (p11-13). Within them, the Attorney General directs as follows:
a) The Director shall not prosecute HIV non-disclosure cases where the person living with HIV has maintained a suppressed viral load, i.e., under 200 copies per ml of blood, because there is no realistic possibility of transmission.
b) The Director shall generally not prosecute HIV non-disclosure cases 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.
c) The Director shall prosecute HIV non-disclosure cases using non-sexual offences, instead of sexual offences, where non-sexual offences more appropriately reflect the wrongdoing committed, such as cases involving lower levels of blameworthiness.
d) The Director shall consider whether public health authorities have provided services to a person living with HIV who has not disclosed their HIV status prior to sexual activity when determining whether it is in the public interest to pursue a prosecution against that person.
The new directives are only applicable to federal prosecutors, in charge of prosecutions in Canada’s three territories: Yukon, Northwest Territories and Nunavut.
PAN joins the Canadian HIV/AIDS Legal Network and other advocates in urging the Attorney General of BC to work with community organizations and scientific experts to adopt directives to their provincial prosecutors that at a minimum reflect the limits on the use of the criminal law that have been articulated by the then federal Attorney General in her directive. Advocates at the Legal Network have been very busy over the past weeks, and have prepared and submitted a comprehensive briefing paper for Attorney General Eby, that details the ways in which new directives here in BC can even improve upon the federal directives, to ensure an end to the overly broad and unjust use of the criminal law in relation to HIV non-disclosure, exposure and transmission in this province.
In terms of PAN’s advocacy, at the October 29th and 30th PAN fall conference and in the weeks thereafter, a total of 38 PAN members moved to officially endorse PAN’s letter of October 26th, 2018 to Attorney General Eby, which called on him to: a) consult with legal and scientific experts and community leaders, including people living with HIV, and to b) issue a directive that will ensure prosecutorial policy is more fully evidence-based, and does not result in unwarranted, unjust prosecutions, and further stigmatization. Based on this support and previous advocacy work, we were very excited to subsequently secure a meeting with the Attorney General that was scheduled for December 10th.
Unfortunately, this meeting was postponed – with the federal government’s World AIDS Day Announcement and related, the Attorney General’s office indicated it wished to have time to review and analyze the new federal directives that were published on December 8th. Since then we have been in active contact with the AG’s office. The latest word (as of today), is that Minister Eby has asked for a new briefing from BC Prosecution Services, on the federal prosecutorial guidelines. And that he wishes to receive this briefing, before meeting with PAN or other community members.
Rest assured, we will continue to circle back to the Attorney General’s office and continue to request a meeting, realizing as well that the January 31st by-election results in Nanaimo, may impact our advocacy and strategy.
Questions? Feedback? Get in touch!
Jennifer (Evin) Jones, Executive Director, [email protected]