Ontario announces new limits in prosecution of HIV non-disclosure

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On Friday, Ontario’s attorney general Yasvir Naqvi and health minister Eric Hoskins announced that HIV-positive persons who are on antiretroviral therapy and have maintained a suppressed viral load for six months will no longer be prosecuted in Ontario if they do not disclose their status to sexual partners.

Yasir Naqvi and Eric Hoskins’ announcement came on World AIDS day, and follows the release of “Criminal Justice System’s Response to the Non-Disclosure of HIV,” a federal government report investigating the criminal justice system’s current treatment of the non-disclosure of HIV. The report concludes that the current bar for criminal prosecution of HIV-positive persons who fail to disclose their status needs to be amended to reflect the current scientific knowledge on the topic.

Although there is no specific offence for the non-disclosure of HIV status in the Criminal Code, non-disclosure can result in assault or sexual assault charges, on the grounds that non-disclosure invalidates a partner’s consent.

However, the report, based on the Public Health Agency of Canada’s analysis, states that  there is no real possibility for an HIV-positive person to transmit HIV if they are on antiretroviral therapy and have maintained a suppressed viral load (viral load being the measure of the HIV virus in a person’s blood) for six months, if they use condoms, or if they only engage in oral sex.

The Ontario announcement addresses HIV-positive persons on antiretroviral therapy and with suppressed viral load. The ministers did not address whether HIV positive persons not on treatment but only engaging in protected or oral sex will continue to be prosecuted.

The federal report was produced by federal Justice Minister Jody Wilson-Raybould, who promised last year to investigate the criminal justice system’s treatment of non-disclosure by HIV positive persons. She intends to develop guidelines for federal prosecutors based on the report. Whether or not the provinces will follow her lead is not yet clear.

The Ontario ministers have also promised to increase funding for community HIV/AIDS programs by $2.7 million, for harm reduction outreach workers by almost $1 million, and to improve access to harm reduction supplies by $3.4 million.

This blog post was written by a CCLA-PBSC RightsWatch student. Opinions expressed do not necessarily reflect the views of the CCLA or PBSC.

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