Update - Canada Criminalisation of HIV non disclosure

Last week, the Supreme Court of Canada heard two key cases – R. v. Mabior and R. v. D.C. – on the issue of when people living with HIV may be criminally prosecuted for sexual assault for not disclosing their HIV-positive status.

These cases revisit the issues raised in the Supreme Court’s original judgment in 1998 in the case of R. v. Cuerrier, which determined that a person may be convicted of aggravated (sexual) assault for not disclosing her or his HIV-positive status before engaging in conduct that poses a “significant risk of serious bodily harm.”

The Court’s decisions in these two new cases are expected later this year, and the implications are serious for people living with HIV and for those working in the field of HIV prevention and care.

The Canadian HIV/AIDS Legal Network intervened in both cases, in partnership with numerous other organizations: the HIV/AIDS Legal Clinic of Ontario (HALCO), the Coalition des organismes communautaires québécois de lutte contre le sida (COCQ-SIDA), Positive Living Society of British Columbia (Positive Living BC), the Canadian AIDS Society (CAS), Toronto People with AIDS Foundation (PWA), the Black Coalition for AIDS Prevention (BlackCAP) and the Canadian Aboriginal AIDS Network (CAAN).

They argued before the Court that while prosecution may be warranted in some limited circumstances (e.g., the rare case where someone maliciously transmits HIV), the criminal law should only be used at last resort and in the most blameworthy cases.

In particular, we urged the Supreme Court to rule that, given the available scientific evidence, there is not, for purposes of criminal prosecution, a “significant risk” of HIV transmission in cases of oral sex, in any case where a condom was used for vaginal or anal sex, or when a person has a low or undetectable viral load.

In contrast, the prosecution argued that people living with HIV should always be obliged to disclose their status, and should be convicted of aggravated sexual assault if they do not, regardless of how miniscule the risk of transmission.

There has been significant media coverage of these landmark cases. We have been working hard to promote fair and balanced reporting on the cases and the criminalization of HIV non-disclosure issue to ensure that the Canadian public is aware of the important implications the Court’s decision will have not only for people living with HIV, but also for Canadian public health, police practice and the criminal justice system. Read one of the news stories featured in the media here.

In the lead up to the Supreme Court hearing, AIDS Action Now!, the Legal Network and the HIV & AIDS Legal Clinic of Ontario co-sponsored a rally in Toronto against criminalization. Videos from the event are available at http://www.aidsactionnow.org/

In Ottawa, the Legal Network and the Canadian AIDS Society held the premiere screening of their new documentary, Positive Women: Exposing Injustice, examining the many impacts of criminalization on women in Canada. In Montreal, a flash mob was organized in front of the courthouse by groups such as PolitiQ, Radical Queer, Warning et Stella, highlighting that criminalization undermines HIV prevention. To learn more about the issue of criminalizing HIV non-disclosure, and about these two cases before the Supreme Court of Canada, please visit http://www.aidslaw.ca/stopcriminalization.

The Legal Network is the only national, community-based charitable organization in Canada working exclusively on HIV/AIDS-related policy and legal issues.

You can access their website here: www.aidslaw.ca