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New HIV guidelines needed for BC prosecutors

Significant risk of transmission should be key: lawyer

Lawyer Jason Gratl would like to see guidelines in BC for HIV-nondisclosure cases. "They could steer some less experienced prosecutors away from improperly approving charges." Credit: bccla.org

HIV activists say that it’s time British Columbia drafted better guidelines to assist prosecutors when laying criminal charges in HIV-related cases.

“The bottom line is we want everyone to have an enjoyable, full sex life, and making criminals out of people for natural human behaviour is a little bit problematic,” says Positive Living BC chair Glyn Townson.

In March the Ontario Ministry of the Attorney General confirmed it was in the process of drafting guidelines for cases of HIV-positive people who have sex without disclosing their status. This followed a campaign directed at Ontario Attorney General Chris Bentley by more than 20 local HIV/AIDS agencies, which asked the province to undergo consultations and create guidelines.

BC’s attorney general now has a four-page policy manual relevant to HIV transmission. The section related to the aggravated assault charge quotes the 1998 Cuerrier decision in which the Supreme Court of Canada ruled that knowingly exposing a sexual partner to HIV can be prosecuted as aggravated sexual assault.

“The Branch is not at present undertaking any review or update of this specific policy, but the Branch reviews policies on an ongoing basis taking into account any relevant changes that may affect the policy,” says Crown spokesperson Neil MacKenzie.

Vancouver lawyer Jason Gratl believes the current guidelines are lacking.

“In my view, the guidelines should be improved to express that the offence requires a significant risk of transmission of HIV, and that, at least in circumstances where the complainant has not seroconverted, the Crown should obtain expert evidence of the risk of transmission before concluding that charges should proceed.”

According to the Criminal Code, aggravated sexual assault is any sexual assault that “wounds, maims, disfigures or endangers the life of the complainant” and can carry a maximum penalty of life imprisonment.

HIV-positive people can be charged with aggravated sexual assault if they fail to disclose their serostatus and have unprotected sex in such a way that there’s a significant risk of transmission.

Last year Gratl defended an HIV-positive gay man who allegedly failed to disclose his status before having unprotected sex with his boyfriend.

In her verdict acquitting him, Justice Lauri Ann Fenlon ruled the risk of transmission in this case “did not constitute a sufficiently significant risk of bodily harm to convict.” It’s serious harm but less serious than it was when R v Cuerrier was reached, Fenlon ruled.

Positive Living BC, formerly BC Persons with AIDS Society, was granted intervenor status in that trial.

Townson says criminalization makes it very difficult to have rational discussions at the public level about HIV and getting tested.

“Nobody is condoning reckless exposure to HIV. At the same point we do need to have some rational guidelines when these things happen how they should be dealt with,” he says. “The number of cases are very small, but when they do happen they are made into giant news stories about sexual predators. Of course it sells newspapers, but it really doesn’t work on breaking down the barriers of stigma and treatment.”

Gratl is particularly concerned about the power of the police to “let someone’s HIV status out of the bag” even before the file makes it to a prosecutor’s desk.

“In my experience police investigators are prepared to leap to the conclusion that charges are warranted without, for example, conducting any investigation into the viral load of a suspect. A charge approval guideline would assist both prosecutors and police investigators to ensure that investigations are complete and prosecutors have adequate information to assess whether there exists a significant likelihood of conviction.”

Townson would like to see guidelines similar to those implemented in the United Kingdom in 2008. Their rules limit prosecutions to cases where there was intent to transmit HIV or recklessness and someone became infected.

“They went to most of their community partners along the way to make sure that things were workable and came up with guidelines that were very clear to establish what the litmus test is for this. Instead of having hundreds of cases they went down to under 10 a year. We welcome any kind of guidelines that we can use from the community point of view of informing our membership what their legal requirements are.”

One of the open questions, he says, is if “significant harm” as defined in the Cuerrier decision is dealt with by condoms.

“It hasn’t been part of a decision, so is proper condom use enough to be above that risk?” he asks. “While we’ve made assumptions in the community that it probably is, the guidelines could help us with this. The courts could say that we won’t hear cases if measures were taken to reduce transmission risk.”

Townson is cautiously optimistic about the developments in Ontario.

“We know in Ontario they are considering it,” he says. “But what they come up with is another thing. We would hope that with good guidelines the mountain of ‘nuisance charges’ would go down and people could rest a bit easier that they are not going to be criminalized.”

MacKenzie says the Crown will pay attention to Ontario.

“I anticipate that we will review the results of the process underway in Ontario once it has been completed,” he says, “and determine to what extent the outcome there may be useful in assisting prosecutors in British Columbia.”

Gratl believes that recent cases, including the one he defended, have increased both awareness and sensitivity to the issues in the Crown office.

“While there is a wide awareness within the Crown office of the need to quantify risk prior to charge approval, it would be helpful to have a written policy to that effect.”

Proper guidelines would remind prosecutors, particularly inexperienced ones, of their jobs, he says. “They are not a panacea that will eliminate all potential for inappropriate charges. But they could steer some less experienced prosecutors away from improperly approving charges where a significant likelihood of conviction does not exist or the risk of viral transmission is inadequate.”