On World AIDS Day, December 1, 2017, the Department of Justice released the Criminal Justice System’s Response to Non-Disclosure of HIV. This report explores the question of HIV non-disclosure and the law in various contexts, including public health; medical evidence on treatment effectiveness; HIV transmission risk; and prosecutorial practices and considerations. Charging practices can differ from province to province, and we don’t know how this report will impact cases moving forward.
The resources that follow below pre-date this report, yet provide important background information on how the law has been applied in HIV non-disclosure cases in Canada. These resources should not be considered as legal advice. If you have questions about a specific case, please consult a lawyer.
Canadian Legal and Policy Advocacy Resources
Interview with Cynthia Fromstein: Cynthia Fromstein is a criminal lawyer in Toronto with experience as a defense lawyer in cases regarding HIV non-disclosure. This interview, published by the, Canadian HIV/AIDS Legal Network, discusses her experience with laws around HIV disclosure.
Canadian consensus statement on HIV and its transmission in the context of the criminal law (2014): Written by M Loutfy, M Tyndall, J-G Baril, JSG Montaner, R Kaul, & C Hankins – six Canadian medical experts on HIV, this statement promotes an evidence-informed application of the law in Canada. The statement is based on a literature review of the most recent and relevant scientific evidence (current as of December 2013) regarding HIV and its transmission. It has been endorsed by >70 additional Canadian HIV experts and the Association of Medical Microbiology and Infectious Disease Canada.
HIV non-disclosure and the criminal law: Implications of recent Supreme Court of Canada decisions for people living with HIV: Questions & Answers: This Q&A document, published by the Canadian HIV/AIDS Legal Network, provides an overview of the answers to commonly asked questions regarding the October 2012 Supreme Court of Canada decision around HIV disclosure. The Court decided that people living with HIV have a legal duty, under the criminal law, to disclose their HIV-positive status to sexual partners before having sex that poses a “realistic possibility” of HIV transmission. Not disclosing in such circumstances means a person could be convicted of aggravated sexual assault. This document explains what the Court’s decisions mean for people living with HIV, although many questions remain.
HIV Non-Disclosure and the Criminal Law: Establishing Policy Options for Ontario (2010): Written by E Mykhalovskiy, G Betteridge, & D Mclay, this report explores evidence with regards to HIV exposure and transmission, and proposes policy options for addressing the problems posed by the criminalization of HIV non-disclosure.
Position Paper: The Need for New Charge Assessment Guidelines: HIV Non-Disclosure in British Columbia (2014): This position paper, written and published by the Positive Living Society of BC, this document presents their views on three Supreme Court cases which address HIV non-disclosure. They also outline three different ways to address HIV non-disclosure – BC’s existing charge assessment guidelines, BC’s public health model, and the innovative approach adopted in Scotland – and provide a series of recommendations for new charge assessment guidelines that would serve both justice and public health.
Position Paper: Criminalization of HIV (2014): This paper, written by the Canadian Federation of Medical Students calls into question the singling out of HIV transmission as requiring specific laws, and arguing that this increases stigma and impedes public health efforts to decrease transmission at a population level.
Ontario Working Group on Criminal Law and HIV Exposure: The Ontario Working Group on Criminal Law and HIV Exposure came together in 2007 to oppose the expansive use of the criminal law to address HIV non-disclosure. Their website includes information on advocating for prosecutorial guidelines in Ontario.
The Public Health Implications of Criminalizing HIV Non-Disclosure, Exposure and Transmission: Report of an International Workshop (2014): In 2013 an international workshop was held in Toronto, Canada, to support, encourage and further develop emerging research on the public health implications of criminalizing HIV non-disclosure, exposure and transmission. It was the first international meeting focused exclusively on sharing, critiquing and strengthening new empirical research on this topic. This report explores three key themes that arose over the course of workshop discussions. The report also offers suggestions for new directions for future research on the public health implications of criminalizing HIV non-disclosure, exposure and transmission.
Resources Focused on Women
Results from the Roundtable on Criminalization of HIV and women in BC Priority Setting Day (October 2015): The Gender & Sexual Health Initiative (of the BC Centre for Excellence in HIV/AIDS), Canadian HIV/AIDS Legal Network, and Positive Women’s Network (PWN) on behalf of the Women, HIV and the Law Project held a one-day Research Roundtable for a small group of leading experts, including women living with HIV, academics, AIDS support organizations (ASOs), clinicians, and legal and policy experts, to discuss the impact of the criminalization of HIV on women, and set research and advocacy priorities to inform policy and practice.
International Community of Women Living with HIV (ICW) Position Statement on Criminalization of Women Living with HIV (2015): The International Community of Women Living with HIV (ICW) have published an updated position statement (with recommendations) on the criminalization of women living with HIV for non-disclosure, potential or perceived exposure, and transmission.
International ResourcesGlobal Commission on HIV and the Law: Risks, Rights and Health (2012): This report from the Global Commission on HIV and the Law examines the role of the law in effective HIV responses globally and offers evidence and recommendations to help end the AIDS epidemic.
World Health Organization Analysis on Sexual Health, Human Rights and the Law: The World Health Organization published an analysis of the impact of overly broad HIV criminalization on public health, adding further weight to the body of evidence supporting arguments that overly broad HIV criminalization does more harm than good to the HIV response.
Global Network of People Living with HIV (GNP+) and the HIV Justice Network’s Progress Report: Advancing Justice: The Global Network of People Living with HIV (GNP+) and the HIV Justice Network published a progress report on achievements and challenges in global advocacy against HIV criminalization.