Over the past few months, PAN and other allied organizations including the Canadian HIV/AIDS Legal Network (CHLN) have been in contact with BC Attorney General David Eby’s office regarding collective concerns about the ongoing overly broad and unjust use of the criminal law in relation to HIV non-disclosure, exposure and transmission. We have called on the Attorney General to ensure that BC’s prosecutorial guidelines are evidence-based, including the evidence of U=U, which has been formally endorsed by Canada; as well as the latest international Expert consensus statement on the science of HIV in the context of criminal law.
In January we were told that Attorney General Eby had asked for a new briefing from BC Prosecution Services, on the federal prosecutorial guidelines (announced by the then Federal Minister of Justice on December 1st 2018). We were also told that it was the Attorney General’s wish to receive this briefing, by BC Prosecution Service, before engaging PAN and any of our members in a consultation process (we originally had had a meeting set with the Attorney General on December 10th , but this was postponed by the AG in light of the new federal directives that were published on Dec 8th).
Earlier this month, we were advised by the Attorney General’s office that the BC Prosecution Services had decided to issue a revised policy as part of its Crown Counsel Policy Manual (ostensibly in light of the federal prosecutorial guidelines). The revised “Sex 2” policy was published on April 16th, 2019.
We are still in the process of analyzing the new policy, but on first reading, one of the biggest disappointments is that it fails to state clearly that there will be no prosecution against people who use condoms. Rather, it states that a public interest factor that may weigh against prosecution is if a person living with HIV correctly used a condom during a single act of vaginal or anal sex and HIV was not transmitted.
There are some positive declarations in the new guidelines – for example, it states clearly that there will be no prosecution for suppressed viral load (i.e., under 200 copies/ml) for at least 4 months; it also states that there will be no prosecution for just oral sex (but with the caveat ‘if no other risk factors present’). These changes are progress.
But in the end, while some significant ground has been gained, these new prosecutorial guidelines fall well short of the key recommendations made by the CHLN in its January 2019 submission to the BC Attorney General. This also feels like an opportunity lost, where once again prosecutorial guidelines are being adopted without adequate consultation with legal and scientific experts and community leaders, including people living with HIV.
In terms of next steps, those will be considered in consultation with the PAN board of directors, members and other organizations working on this issue. But for now, I would like to acknowledge the CHLN and the members of the national Canadian Coalition to Reform HIV Criminalization for their ongoing leadership on this – and we will continue to seek ways to work together on this issue in future days.
Questions? Feedback? Get in touch!
Jennifer (Evin) Jones, Executive Director, [email protected]