Carving a Path Towards Decriminalizing HIV in Canada

By Reeve Kako

Before starting my internship at the Canadian HIV/AIDS Legal Network, I was completely unaware of the dire consequence that accusations of HIV non-disclosure have had upon thousands of people living with HIV across Canada. Canada remains fifth in the world in criminalizing individuals for not disclosing their status and continues to hold the unfortunate and unique title of prosecuting non-disclosure cases under the severe charge of aggravated sexual assault. Those convicted, including many who may be victims of sexual assault, abuse, or extortion by their accuser, face the threat of life sentences and a mandatory registration on the sex offender registry. Regardless of whether the virus was actually transmitted, and even with the use of a condom, the possibility of being charged and convicted for non-disclosure remains a frightening possibility for many throughout Canada.

Coming to understand this shocking reality faced by those living with HIV in a country I have always been proud to call a champion of human rights was deeply saddening and disturbing.  As an openly gay man who understands all too well the impact that government policy has had upon LGBTQ+ persons and their access to dignity, I was, and will continue to be ashamed of my government until HIV decriminalization advocates are listened to and reform efforts are realized.

Thankfully, despite this grim legal landscape for HIV non-disclosure cases in Canada, last month provided ample reason for me to believe that positive reform may be within reach. As part of my internship, I had the privilege of assisting at the second meeting of the Canadian Coalition to Reform HIV Criminalization (CCRHC) on June 12th and 13th. The day following these meetings, the Canadian HIV/AIDS Legal Network also held a larger Symposium focused on HIV criminalization.

As the minute-taker at the CCRHC meetings, I was introduced to the challenging yet rewarding process that is coalition building. It was remarkable to see how a large group of people with a diverse set of viewpoints could share their opinions and work toward a common set of goals for the future. Tough questions were raised, such as the issue of how to reconcile the risks of pursuing legislative reform when it could ultimately lead to a new offence that might come with its own adverse consequences. In the end, however, compromises were struck, and priorities were laid out, while other issues were left to be decided when more information on the future political landscape became available. Being able to witness this valuable work allowed me to realize firsthand how reform efforts are championed and the significance of building consensus to achieve a common advocacy goal.

The Symposium on HIV Decriminalization that followed provided a medium to attract public attention to decriminalization efforts across Canada.  Canada’s Attorney General, David Lemetii opened the Symposium and spoke in support of decriminalization efforts. He committed his government to pushing decriminalization efforts further should his party win re-election in the fall. Survivors of decriminalization shared their sorties in a public forum, bringing an important personalized viewpoint of the issue to the public, and the leading science on the transmission of HIV was presented.  The Symposium was an incredible day that demonstrated to me the importance of public relations and communications strategy in advocacy, as well as the power derived from first-person storytelling.

In the week following these critical meetings, Canada saw yet another watershed moment for HIV criminalization reform. The federal Justice Committee released a report that called for the end of prosecutions of non-disclosure under aggravated sexual assault laws and instead advocated for a new offence that would only criminalize cases where the virus has actually been transmitted. This would significantly limit the current “realistic possibility of transmission” standard. While these findings are positive steps towards achieving the CCRHC’s ultimate goal of complete decriminalization, less favourable aspects of the report included the recommendation that this new offence include other communicable diseases within its scope, as well as the potential for individuals being charged with non-disclosure based on a reckless standard of intent. These recommendations would create a criminalization scheme that would go further than the intentional standard for which the CCRHC has advocated. Yet, despite these drawbacks, a law based on these recommendations would nevertheless be significant progress towards narrowing the ability for the criminal law to punish people living with HIV.

However, despite ample reason to celebrate the report’s favourable recommendations, the CCRHC remains hesitant to do so. The Justice Committee’s report is only a preliminary success in a long legislative process, with several more steps required to pass such recommendations into law. The political uncertainty created by the upcoming October federal election therefore poses a significant potential barrier to this reform being realized. The Justice Committee’s report was not unanimous and was broken into a majority report written by the Liberal majority and two dissenting opinions written by the NDP and the Conservative parties, respectively. The majority findings of the report summarized the findings outlined above, while the dissenting opinion of the NDP proved to be more in line with the CCRHCs goals in rejecting the potential inclusion of a reckless standard. However, the Conservative minority report significantly differed from the CCRHCs proposals, advocating for continued criminalization of a “realistic possibility of transmission,”, as opposed to actual transmission, and a refusal to rule out prosecution for sexual acts where a condom was used, or only oral sex was engaged in. Therefore, the distinct possibility of a federal Conservative majority following October’s election could see the halting of most, if not all, of the positive aspects of the CCRHC’s legislative reform efforts.

The findings of this report act as an illustration to me of the both the rewards and frustrations inherent in human rights advocacy work.  On one hand, in large part due to the lobbying efforts and testimony offered by members of the CCRHC, the government in power has finally acknowledged the harm they are doing to those living with HIV.  However, on the other hand this acknowledgement and its recommendations for change may never be realized due to future political uncertainty. While coming to terms with this reality is difficult, in the end, my internship has taught me that allowing this possibility to deter you or exhaust you from continuing to push for change is about the worst thing an advocate can do. Governments change, however, what remains consistent is the ability for advocacy groups to continue to push for needed reform in spite of resistance. Should the government change in the fall, reform efforts will recalibrate and the fight for justice must and will continue!

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