January 12, 2023
Honourable David Lametti
Minister of Justice and Attorney General of Canada
Sent via email: [email protected]
Dear Minister Lametti:
On behalf of PAN and our members, we write to thank you for following through on the commitment made at the July 2022 International AIDS Conference, to undertake a public consultation on reforming the criminal law regarding HIV non-disclosure. We appreciate the opportunity to provide our feedback and recommendations on this critical issue.
By way of background, PAN leads an inspired, strong, and effective community-based response to HIV, hepatitis C, and harm reduction. As a pro-active provincial network of over forty community-based and allied organizations, our work in British Columbia and with partners across the country includes advocacy, policy change, capacity building, leadership training, research, and evaluation. PAN member organizations play a critical role working alongside and supporting people living with HIV (PLHIV), others with lived and living experiences, and those most at risk, connecting them to testing and treatment, and in accessing harm reduction services and other critical supports.
Concerns regarding the ongoing criminalization of PLHIV run high and persist despite BC having some of the most progressive prosecutorial guidelines in the country. While there has been a reduction in prosecutions in recent years, the reality remains that PLHIV can be charged and convicted for HIV non-disclosure in cases in which their sexual activities pose a negligible risk of HIV transmission or no risk at all.
The myriad of harmful impacts for PLHIV who are charged is well documented. So too is the way in which the criminal law is used disproportionately against PLHIV from some racialized populations. The use of the criminal law also impedes HIV prevention efforts by dissuading people from accessing needed HIV diagnostic and treatment services.
The harms engendered by the criminalization of PLHIV is highlighted by the experience of AVI Health and Community Services, a PAN member organization serving communities across Vancouver Island.
Our organization works with some of the most vulnerable people in our communities – many of our clients living with HIV or most “at risk” are also dealing with homelessness, poverty, systemic racism, drug use, mental health issues… along with all the barriers and challenges that flow from that. The ongoing threat that someone could be charged and convicted of aggravated sexual assault for HIV non-disclosure weighs heavily both on our clients, and on our front line staff who are working to support them. The threat has a huge “chill effect”, making people afraid, uncertain about disclosure, and anxious. It discourages people living with HIV, and those most at risk of infection, from talking openly with health care providers, from disclosing their status, or getting tested or accessing treatment. We see how it just heaps on an additional layer of stigma for folks and undermines them. It also undermines our shared public health goals of removing barriers to testing and treatment.
– Katrina Jensen, Executive Director, AVI
PAN strongly urges the federal government to amend the Criminal Code and enact other associated reforms, specifically:
- Cases related to the non-disclosure, exposure, or transmission of HIV or other STBBIs should be removed from the scope of sexual assault laws.
- If the criminal law is ever used, it should only be as a last resort to deal with the rare case of intentional transmission, and where other interventions have proven insufficient to protect others from harm.
- Criminal prosecutions and convictions should be reserved for cases where there has been actual, intentional transmission.
- Criminal charges related to non-disclosure, exposure, or transmission of HIV or another STBBI are not justified where someone engaged in activities that, according to the best available scientific evidence, posed no significant possibility of transmission.
- The Criminal Code should be amended so that existing offences can only be used to prosecute non-disclosure, exposure, or transmission where there is actual and intentional transmission, and where no other extenuating circumstances are present (e.g., fear of violence upon disclosure).
These points are further elaborated on in our response to the survey questions (See attached.) Thank you for the opportunity to engage in this consultation. We would be pleased to further elaborate or answer any questions regarding the ongoing impacts of the criminalization of people living with HIV in this province.
J. Evin Jones, Executive Director