Brent Bauer of the Gay Men’s Wellness Initiative stood before the Ottawa Police Services Board on July 26 with a policy review proposal to develop guidelines for prosecution for HIV non-disclosure cases.

The proposal was rejected without deliberation.

The proposal outlined the problems of using criminal law to regulate the risk of HIV transmission. It proposed that a policy review be established involving the Ottawa Police Services, Ottawa Public Health, the Crown and community groups.

Bauer pointed out that prosecutorial guidelines are common in Ontario within the Ontario Crown Policy Manual for hate crimes, impaired driving and sexual offences but that there are no guidelines to help police decide whether or not to lay charges around HIV non-disclosure.

Bauer pointed out that Ottawa has the resources — police, public health expertise and community leadership — to lead the way in ensuring that HIV-related criminal complaints are handled in a non-discriminatory manner.

After hearing the proposal, Henry Jenson, a provincial appointee to the board, stated that it was an inappropriate matter for the board. Police Chief Vern White was then asked for his opinion.
 
White immediately advocated for the proposal to be dismissed.

“For us it comes down to criminal complaints, criminal investigation and the decisions made between the police and the Crown. I would rather — particularly as a result of what has been going on in the last few months — I would rather the board not consider this,” says White.

White referred to the current criminal case in court and stated that the police acted appropriately with the investigation.

“I do think we are treading on thin ice — we are in the midst of an investigation and criminal prosecution, and I would rather leave it to that,” says White. “If there is a change in legislation, the police would change our investigative and prosecutorial role, but at this point in time, I believe we are within our mandate.”

Councillor Maria McRae was the only other board member to speak out, after which the chair, Councillor Eli El-Chantiry, refused to let Bauer ask any questions.

After leaving the room, Bauer spoke with media.

“We are very disappointed with the reaction of the board tonight — it
is an act of cowardice and timidity,” says Bauer. “The board has a policy role in this community, they have the leadership role, they are able to direct the chief to delegate a representative to engage with public health and community groups to develop guidelines of prosecution. We are just talking about guidelines here; we are not talking about actual law.”

Bauer reiterated that HIV non-disclosure was a public health issue and not a criminal law issue. He stated that the stance taken by the Gay Men’s Wellness Initiative was the HIV non-disclosure cases are best left to public health officials.

Bauer added that with the criminal case in hand, the accused was already in custody when the police issued a press release with his name and photo. In his opinion, Public Health have the power, within the public health protocol, to handle individuals involved in HIV transmission and the accused’s past partners could have been traced back through public health.

He stressed that choosing the public health option to track down partners was time consuming but should be balanced by the outcry that was caused by the release in May of the accused’s name and photo in an HIV-disclosure case.

“There’s a balance here between taking a bit more time to trace back through public health, through counsellors, community groups, as opposed to creating fear and hysteria, which the photo did, and labelling him — and by extension other HIV-positive people — potential sexual predators,” says Bauer.

The term "sexual predator" was used in an email sent via community listserv of the Police Liaison Committee to the queer community. It was sent by Inspector Joan McKenna. In a Police Liaison meeting on May 17, McKenna expressed regret for her poor choice of words.

White, however, when interviewed by the media, discussed the police handling of the case. White said that while there may have been poor public health consultation, the police would have still issued the same press release — with the accused’s name and photo — and the term “sexual predator.”

With White’s vocal support of police actions, his dismissal of Bauer’s proposal and the refusal of the Police Services Board to discuss the matter further pushes the matter back into the hands of queer community groups to pursue policy review from other angles.

“We will continue to engage Ottawa Public Health and the community groups to try and create a dialogue, to engage the Crown’s office in terms of trying to get them on board,” says Bauer. “We need to do more, however, to make the community aware that the police are not shifting their fundamental stance on HIV non-disclosure, so it's critical for us — as a community — to get a good education campaign out there to gay men in the community so that they are aware that the police continue their pernicious and punitive options around this particular law.”
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