Criminal Justice System's Response to Non-Disclosure of HIV

Introduction

On December 1, 2016, the Minister of Justice committed to engage provincial and territorial (PT) colleagues, affected communities and medical professionals to examine the criminal justice system’s response to non-disclosure of the human immunodeficiency virus (HIV) (see Annex 1). To support that commitment, Justice Canada has studied the issue with the assistance of the Public Health Agency of Canada (PHAC), PT counterparts, and with input from various stakeholders. This report is the result of that study.

The criminal law does not require disclosure of HIV in every case. In 2012, the Supreme Court of Canada (SCC) held that the criminal law imposes a duty to disclose HIV positive status prior to sexual activity that poses a “realistic possibility of transmission” on the basis that, in such cases, the HIV negative sexual partner must be afforded the opportunity to choose whether to assume such a risk. “HIV non-disclosure” is the term used to describe these cases, i.e., criminal cases involving transmission, or exposure to the risk of transmission, of HIV through sexual activity that posed a realistic possibility of transmission. Since HIV transmission and exposure cases can raise different legal and policy issues, this report refers to HIV transmission or HIV exposure cases when necessary to distinguish between them, but otherwise uses the term “HIV non-disclosure” to describe both types of cases collectively.

Although HIV was originally a fatal sexually transmitted and blood-borne infection (STBBI), it is now considered to be a manageable condition, thanks to significant medical advancements in HIV treatment. Antiretroviral treatment is highly effective for most patients; remaining on treatment substantially improves quality of life and results in low viral loads,Footnote 1 which prevents the onward transmission of HIV. However, HIV continues to have significant health implications for those who contract it and treatment may not work for some patients and can have significant negative side effects. Controlling the spread of HIV therefore remains a public health imperative.

For that reason, on December 1st, 2016, the Minister of Health committed Canada to global targets towards the elimination of AIDS as a public health threat by 2030, as established by the Joint United Nations Programme on HIV/AIDS (UNAIDS) and the World Health Organization, including their 90-90-90 targets, i.e., that by 2020, 90% of all people living with HIV know their status, 90% of those diagnosed receive antiretroviral treatment, and 90% of those on treatment achieve viral suppression.Footnote 2 HIV in Canada, the effectiveness of HIV treatment, and the effects of both HIV and its treatment on patients, are discussed in Part A.

The most recent medical science on HIV transmission risk, which has evolved since the SCC last considered HIV non-disclosure, is instrumental in defining the scope of the criminal law. In 2012, the SCC found that future advances in HIV treatment must be taken into account in determining whether a “realistic possibility of transmission” has been established. PHAC has provided a summary of its in-depth analysis of the most recent medical science in Part B.

The development of the SCC’s “realistic possibility of transmission” test was informed by relevant policy considerations, including the importance of striking an appropriate balance between the complainant’s interest in autonomy, dignity and equality and the need to prevent over-extension of criminal sanctions of an already vulnerable group, i.e., persons living with HIV. The applicable criminal law, including the SCC’s observations on the complex policy issues at play in HIV non-disclosure cases, is discussed in Part C.

Many stakeholders have expressed significant concern with the criminal law approach developed by the SCC, and in particular the application of its “realistic possibility of transmission” legal test post-2012, including on the basis that the approach results in over-criminalization of persons living with HIV, who are already marginalized and vulnerable. These perspectives are outlined in Part D. The criminal law’s application to HIV non-disclosure has also been the subject of significant discussion and debate at the international level; Part E provides a review of certain like-minded jurisdictions’ approaches.

Given that HIV is first and foremost a medical and public health issue, public health sector responses were examined and are discussed in Part F. Criminal justice system responses may complement public health responses, while seeking to achieve their own objectives, including promotion and maintenance of a safe, just and peaceful society, by establishing a shared set of minimum standards of acceptable human behavior. These responses, including information on victim impact, are discussed in Part G. Parts F and G also discuss to what extent public health and criminal justice responses are coordinated.

Finally, Part H provides a brief summary of the evidence reviewed and an overview of the conclusions that can be drawn from it. These conclusions may inform any future steps to address the way in which the criminal justice system responds to HIV non-disclosure cases.

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