Ontario will help prosecutors decide when to lay criminal charges and when to back off in HIV-related cases.

The office of the attorney general confirms it is drafting guidelines for cases of HIV-positive people who have sex without disclosing their status.

In September 2010, the Ontario Working Group on Criminal Law and HIV Exposure (CLHE) launched a campaign aimed at Attorney General Chris Bentley; they asked the province to undergo consultations and put together guidelines for prosecutors. Their petition has roughly 1,000 signatures.

Without a provincial standard, people living with HIV can’t be sure what kinds of sexual activity could land them in jail, AIDS activists say. They’re hoping that guidelines will limit the scope of the law and provide clarity for HIV-positive communities.

“I think that it’s good news. The working group applauds them,” says Ryan Peck, director of the HIV and AIDS Legal Clinic Ontario (HALCO), which is part of CLHE.

The attorney general’s office has not said when the document will be ready. CLHE has asked for a timeline and is waiting for a response, Peck says. Xtra’s request to the attorney general’s office for a timeline also went unanswered.

The UK released similar guidelines in 2008 and now limits prosecutions to cases where there was intent to transmit HIV or recklessness and someone became infected.

In Canada, HIV-positive people have been charged when there was no transmission, even for low-risk encounters like oral sex. In some cases, trial judges don’t seem to understand the evolution of the health and science of HIV over the past two decades. Those cases are often appealed, says Glenn Betteridge, a lawyer and member of the CHLE. But that’s expensive and amounts to precedent being made “on the backs of people living with HIV.”

“There’s an argument to be made that, well, that’s what appeal courts are for. But if courts and judges are getting it wrong or are misinformed, then an injustice is being done,” he says.

Prosecutorial guidelines are intended to fix that, says Betteridge. The attorney general’s guidelines will also raise awareness among prosecutors about the science of HIV, he adds.

Bentley indicated as early as November that he was willing to listen to AIDS groups, but he stopped short of saying definitively whether or not his office would produce guidelines. Peck says he got word in December that guidelines were in the works.

Prosecutorial guidelines represent an uneasy compromise for those who have long argued that criminal law has no place in what is essentially a public health matter. But in the absence of federal legislation overriding the Supreme Court of Canada’s 1998 Cuerrier decision (which ruled that knowingly exposing a sexual partner to HIV is a prosecutable crime), those involved have turned to other avenues to reduce the harm caused by the law’s intervention.

At the same time that they push the province on prosecutorial guidelines, groups like the Canadian HIV/AIDS Legal Network (CHALN) are providing information to defence lawyers preparing individual cases. They’re also following Manitoba and Quebec cases that are likely headed to the Supreme Court, says CHALN’s Cécile Kazatchkine.

“It’s not about supporting or not supporting criminalization. It’s about minimizing the harm of the current use of the criminal law,” she says. “Hopefully, we can agree on how we can, given the current situation, mitigate the impact of criminalization and minimize the number of prosecutions.”

The working group is helping to gather information about what prosecutorial guidelines ought to look like. They’re still ironing out the details, but with the help of a $50,000 grant from the MAC AIDS Fund they will hold focus groups with people living with HIV, AIDS service organizations, researchers and scientists, public health officials, women’s sexual assault service providers and legal experts. They plan to meet in Toronto, Ottawa, London and Northern Ontario in March.

They hope that, in the end, their consultations “will influence the deliberations that will hopefully be ongoing at the Ministry of the Attorney General,” says Betteridge.

Join the CLHE in calling for prosecutorial guidelines by signing their petition here.
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