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Ontario withdraws intervention in HIV criminalization cases

Supreme Court case to be tried Feb 8

Credit: Xtra file photo
The Ministry of the Attorney Feneral has quietly withdrawn its applications to intervene in two HIV criminalization cases set to be tried before the Supreme Court in 2012. The withdrawals were filed Dec 9.
Before the election, the office of former attorney general Chris Bentley had applied to intervene in two cases from the Manitoba and Quebec Courts of Appeal. The Sept 9 document noted there was “uncertainty and unfairness” in current laws. 
In both cases, the accused are HIV-positive and had consensual sex with their partners without disclosing their health statuses, but they either used condoms or were on antiretroviral medications that kept the risk of transmission very low. In each case, the accused was acquitted by the provincial Court of Appeal.
The Ontario submission called for a consent-based framework that would require people who are HIV-positive to disclose their health statuses before engaging in any kind of sexual activity, no matter the risk. A previous Supreme Court decision found that people who are HIV-positive are obligated to disclose their statuses whenever engaging in activities that would expose their partners to “significant risk,” which has been applied unevenly in lower courts.
HIV activists said they felt betrayed by the Ontario government’s decision, as it appeared to go back on a previous pledge to draft prosecutorial guidelines that would limit prosecutions and create less confusion in the courts.
Tim McCaskell, of the Ontario Working Group on Criminal Law and HIV Exposure, says that his group has been working to convince MPPs and the attorney general that they were taking the wrong approach. Going forward, he says, they want to raise awareness of the issue.
“Even Supreme Court justices are aware of what public opinion is. We need to make them aware that a wrong decision at the Supreme Court could have a dangerous impact,” McCaskell says.
A spokesperson for the Ministry of the Attorney General declined to comment on the case, as it is still before the courts.
The Supreme Court is scheduled to hear both cases on Feb 8.