Ontario’s attorney general has applied to intervene in a Supreme Court of Canada decision that activists say could make it easier for courts to convict HIV-positive Canadians who don’t disclose their status to sexual partners.
In a document submitted on Sept 9, the attorney general’s office noted there was “uncertainty and unfairness” in current laws.
It is calling for a consent-based framework rather than the current legal approach, which has been applied unevenly and has allowed judges to convict HIV-positive Canadians even when they haven’t passed on the virus.
“This is a kick in the face for people working on this issue,” says Tim McCaskell, a member of the AIDS Action Now steering committee. “This basically makes disclosure a requirement for any kind of interaction. As we know from Bill Clinton, it’s difficult to know what’s sex and what’s not. If we give someone a peck on the cheek, is it sex?”
McCaskell is frustrated with Ontario Attorney General Chris Bentley, who last year told Xtra he would consult members of the community about creating prosecutorial guidelines to ensure less confusion in the courts.
In several instances, people have been charged with assault or aggravated assault for spitting or scratching someone, while others have been charged with attempted murder because they did not disclose their HIV status before a sexual encounter, even when a condom was used.
“This goes in the completely opposite direction,” says McCaskell of the request to intervene in two cases from Courts of Appeal in Manitoba and Quebec, which will be appealed at the Supreme Court. “This would mean that if significant risk was no longer a criterion, then any HIV person who didn’t disclose in almost any circumstances could be prosecuted.”
Current Canadian law around HIV criminalization dates back to the 1998 Supreme Court Cuerrier decision, which ruled that knowingly exposing a sexual partner to HIV amounts to aggravated assault. This means people living with HIV have a legal duty to disclose if they could expose a partner to a significant risk of transmission.
However, prosecutorial guidelines to define what constitutes a significant risk have never been formalized, which has led to unfairness, something Bentley’s office recognized in the application.
A 2010 decision in the Manitoba Court of Appeal acquitted an HIV-positive man for sexual encounters in which a condom was used, or when a condom was not used but he had an undetectable viral load. The Court found neither was a “significant risk.”
Similarly, a Quebec Court of Appeal acquitted an HIV-positive woman who had sexual intercourse on one occasion without disclosing her status. Neither decision is binding in the rest of Canada and prosecutors in both cases applied for an appeal to the Supreme Court.
Bentley’s office has applied to intervene in these cases, asking to remove the criterion of “significant risk.”
It stated in its application “the issues at the heart of these appeals are very important to the administration of justice.
“The task for the Court in these cases will be to devise a workable test that provides clarity, protects the public as best as possible and promotes certainty about the meaning of consent to sexual activity.”
The application notes that Ontario has a large number of criminal prosecutions and the highest number of HIV-positive people in Canada.
Cecile Kazatchkine, a policy analyst with the Canadian HIV/AIDS Legal Network, calls the decision to intervene in these cases a “radical move” that would lead to more HIV-positive people behind bars and have no impact on HIV prevalence rates.
“It would provide more clarity, but it would provide even more unfairness as well,” she says. “It could possibly amount to discrimination against people living with HIV. It means everyone living with HIV in Canada who cannot prove they disclosed their status may be at risk of going to jail, even in cases where they used reasonable precautions to protect their partner.”
She says Bentley has disregarded scientific advancements since the original 1998 Supreme Court decision.
“It is quite contradictory and doesn’t make sense,” she says.
Not true, says Glen Murray, Liberal MPP for Toronto Centre and a founding member of the Canadian AIDS Society.
“I’m very sensitive to this,” says Murray, who asked activists to have patience with the attorney general. “It’s a very complex set of decisions, a complex science, because you’re talking about levels of risk that are interpreted differently.”
Murray says Bentley has assured him that his office will listen to the concerns of McCaskell’s steering committee and pursue evidence-based guidelines.
Bentley’s office refused to comment until after the application has been reviewed.
“We are in a difficult situation because we are in a writ period,” says Murray. “I can’t act directly in my elected post because we’re in an election right now.”
But McCaskell thinks Ontario should immediately withdraw its request for intervention at the Supreme Court or intervene for a scientifically accurate assessment of significant risk.
Anything else, he says, is unacceptable.
“If you give somebody a blowjob in the park and then you get charged with sexual assault because you didn’t give the guy your medical resumé? This is bizarre, but that’s exactly what this is opening up.”