Government releases Report on the Criminality of HIV non-disclosure
December 1, 2017 – Ottawa, ON – Department of Justice Canada
The Government of Canada is committed to ensuring that our criminal justice system protects Canadians, holds offenders to account, provides support to victims, meets the highest standards of equity and fairness, and respects the Canadian Charter of Rights and Freedoms.
Today, on World AIDS Day, the Honourable Jody Wilson-Raybould, Minister of Justice and Attorney General of Canada, released the Department of Justice Canada’s report entitled Criminal Justice System’s Response to the Non-Disclosure of HIV. The report represents a significant step forward in raising awareness and addressing concerns about the over-criminalization of HIV non-disclosure in Canada, which can discourage testing and treatment.
The report, developed in collaboration with the Public Health Agency of Canada, reaffirms that HIV is fundamentally a public health issue. It provides a comprehensive review of the most recent medical science on the risks of HIV transmission through sexual activity and shows how the criminal law deals with cases involving the non-disclosure of HIV-positive status prior to sexual activity.
Once a fatal infection, HIV is now considered to be a manageable condition, thanks to significant medical advances in HIV treatment. Sustained treatment substantially improves quality of life and prevents the transmission of HIV.
The report examines stakeholder perspectives, approaches taken in other countries, public health responses to HIV cases, and criminal justice responses to HIV non-disclosure and draws several conclusions from this overview. Together, it informs an evidence-based approach to addressing HIV non-disclosure in the criminal justice system.
The report will provide valuable assistance to the Minister of Justice as she continues to work with her provincial and territorial counterparts on the way forward. Based on its conclusions and observations, she will be reviewing existing charging and prosecution practices leading to the possible development of prosecutorial guidelines for federal prosecutors.
“There has been significant progress in the treatment, management and prevention of HIV infection since the first World AIDS Day observed in 1988. I am pleased to release this report today on World AIDS Day. It clearly demonstrates that our criminal justice system must adapt to better reflect this progress as well as current scientific evidence on HIV-AIDS. Our Government is taking action to help reduce the stigmatization of persons living with HIV, including undertaking an evidence-based approach to addressing HIV non-disclosure in the criminal justice system.”
The Honourable Jody Wilson-Raybould, P.C., Q.C., M.P.
Minister of Justice and Attorney General of Canada
“This report is critical to reducing HIV-related stigma in Canada. I will continue to work with my colleague, the Honourable Jody Wilson-Raybould, as well as with people living with HIV to reduce the stigma and discrimination they face, which can be barriers to prevention and treatment.”
The Honourable Ginette Petitpas Taylor, P.C., M.P.
Minister of Health
- Canada’s efforts to detect and treat HIV have resulted in the majority of persons living with HIV in Canada knowing their status and receiving appropriate treatment.
- There is no HIV-specific offence in the Criminal Code. However, persons living with HIV who do not disclose their status are often charged with aggravated sexual assault because the non-disclosure is found to invalidate their partner’s consent to engaging in sexual activity in certain circumstances. This is the most serious sexual offence in the Criminal Code.
- The criminal law applies to persons living with HIV if they fail to disclose, or misrepresent, their HIV status prior to sexual activity that poses a realistic possibility of HIV transmission.
- As stated in the report, current research shows that sexual activity (with or without a condom) with a person living with HIV who is taking treatment as prescribed and has maintained a suppressed viral load (i.e., under 200 copies of HIV per ml of blood) poses a negligible risk of transmission. Across studies to date, there have been no confirmed cases of sexually transmitted HIV to an HIV-negative partner when the HIV-positive partner was continuously on antiretroviral therapy with sustained viral suppression.