Attorney General of Canada to issue Directive Regarding Prosecutions of HIV Non-Disclosure Cases

On December 1, 2018, the 30th anniversary of World AIDS Day, federal Minister of Justice Jody Wilson-Raybould and the Department of Justice announced a new directive regarding prosecution of HIV non-disclosure cases.

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.

The new directive states that there should not be prosecution 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.

This directive will only apply to cases being prosecuted under federal jurisdiction of the Public Prosecution Service of Canada (in the three territories)- it will not apply to cases under provincial jurisdiction.

The full release can be read here:

https://www.canada.ca/en/department-justice/news/2018/12/attorney-general-of-canada-to-issue-directive-regarding-prosecutions-of-hiv-non-disclosure-cases.html


The following statement was issued by the Canadian HIV/AIDS Legal Network. Comments can be attributed to Richard Elliott, Executive Director, Canadian HIV/AIDS Legal Network.

December 1, 2018 — Today, on World AIDS Day, federal Attorney General Jody Wilson-Raybould announced a new directive to help limit unjust prosecutions against people living with HIV in Canada. This new directive, which comes after years of advocacy by the Canadian HIV/AIDS Legal Network and many partner organizations, is consistent with Justice Canada’s own recommendations and a welcome step in the ongoing effort to the end the criminalization of HIV. It is also better aligned with the latest scientific evidence regarding HIV and its transmission.

Last year, the Canadian Coalition to Reform HIV Criminalization (CCRHC), of which we are a founding member, released its Community Consensus Statement, signed by more than 160 organizations Canada-wide. In this statement, we detailed key steps that the federal, provincial and territorial governments must take in order to curb the overly broad use of criminal law against people living with HIV. Yesterday, the CCRHC issued a follow-up statement in which more than 100 organizations called on the federal government to act on its stated concerns about “overcriminalization of HIV” and the conclusions of a Justice Canada report released a year ago. Scientists have also repeatedly called on federal and provincial governments to heed the science and limit prosecutions accordingly.

We are pleased that the government has listened to our collective voice and taken much-needed action today. We congratulate the Attorney General for this welcome and important step.

We note that this directive only governs federal prosecutors, who handle such criminal prosecutions only in Canada’s three territories. We therefore continue to call on provincial Attorneys General to follow the federal government lead and issue similar directives limiting prosecutions against people living with HIV in their jurisdictions. At this time, no province has yet issued clear directives reflecting these limits on the misuse of the criminal law. Unjust prosecutions – and the fear of such prosecution – continue. We also continue to call on the Government of Canada to enact Criminal Code reforms that remove HIV non-disclosure prosecutions entirely from the reach of sexual assault laws.

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Download a PDF version here: http://www.aidslaw.ca/site/download/17338/

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