After fighting for years to keep it secret, the Ministry of the Attorney General has finally been forced to turn over a “practical guide” that has been distributed to Crown attorneys on how to prosecute HIV exposure and transmission cases.

The document, prepared by Hamilton Crown attorney Karen Shea, was obtained by Toronto lawyer Marcus McCann, who first asked for it through a freedom of information request in 2012, and finally got it after the ministry lost a battle in Divisional Court late last year to keep it under wraps.

“Up until now, we’ve only seen the effects of this manual. We see the procedures that are described in this manual used in various cases,” McCann told the Star.

“The most chilling part (of the manual) for me is the clear implication that Crowns should rely on an accused person’s statements to public health (agencies) in order to incriminate them.

“This isn’t new, and we’ve seen this evidence introduced at various trials, and HIV activists have been clear that this is a threat to public health’s ability to do its job. As a consequence, it risks undermining the goals of public health, which are to maintain a healthy population in Ontario.”

The 72-page document, dated October 2010, covers everything from the elements the Crown must prove to secure a conviction, to the kind of information that should be sought on an HIV-positive individual from public health officials, to potential responses that Crown attorneys can provide to arguments against the criminalization of HIV non-disclosure cases.

For example, as a response to the argument that criminalization will lead to “chilling” effects for HIV testing, Shea writes in the manual: “No evidence that this has in fact occurred — stands to reason that individual who suspects that he or she has been infected with HIV will be tested for HIV for personal health reasons.”

While it is not an official policy or guideline, a ministry spokesperson acknowledged to the Star that the document was prepared not only for Shea’s use, “but also to assist her colleagues in a difficult and complex area of the law.”

Shea did not respond to a request for comment for this article.

Since the guide was written in 2010, the science around HIV and AIDS has advanced and the legal precedents have changed. It remains unclear if parts of the document are still being consulted by Ontario Crown attorneys, who remain without official guidelines on prosecuting HIV non-disclosure cases.

If the document is being used, advocates say, they remain deeply concerned with much of its content.

“We’ve been living with the effects of this document for some time. There seems to be a particular zeal for prosecution on this issue,” said Ryan Peck, executive director of the HIV & AIDS Legal Clinic Ontario.

Prior to 2012, the duty of a person to disclose their HIV status to a sexual partner, under the law, existed if there was a “significant risk” of transmission, but Peck points out that the practical guide is silent on the big word “significant.”

“It makes it seem as if there’s a duty to disclose in circumstances even where it’s not significant,” Peck said.

Following a 2012 Supreme Court ruling, there is no longer a duty to disclose if the individual practised safe sex and had an undetectable viral load. But Peck says the law does not take into account science that says that as long as a person has an undetectable viral load, risk of transmission is practically zero, even if the person did not use a condom.

McCann’s legal victory last year came just before federal Justice Minister Jody Wilson-Raybould’s announcement on Dec. 1, World AIDS Day, that her department intends to work with provincial counterparts and the HIV/AIDS community to look at the criminal justice system’s response to prosecution of HIV non-disclosure cases.

“The over-criminalization of HIV non-disclosure discourages many individuals from being tested and seeking treatment, and further stigmatizes those living with HIV or AIDS,” she said. “Just as treatment has progressed, the criminal justice system must adapt to better reflect the current scientific evidence on the realities of this disease.”

She said this could include the development of official prosecutorial guidelines. A spokesperson for Ontario’s Ministry of the Attorney General said the ministry “is committed to working with the federal government to examine the law in this important area.”

The ministry did not say whether Attorney General Yasir Naqvi would comply with a recent demand from the Ontario Working Group on Criminal Law and HIV Exposure to impose an immediate moratorium on all HIV non-disclosure prosecutions — unless there is alleged intentional transmission of HIV — until the development of prosecutorial guidelines.

Ontario did at one point have draft guidelines that were produced after Shea’s practical manual, but HIV/AIDS advocates, including Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network, had to sign a confidentiality order before viewing them.

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Elliott, who is barred from discussing the draft guidelines’ content, said they were so bad that the ministry was told no guidelines would be better. While the draft guidelines were never adopted, it’s unclear if they have been seen by Crown attorneys.

“They were consistent with what I think is a track record of bad faith on the part of Ministry of the Attorney General for years in discussing this issue,” Elliott told the Star.

“Frankly, what they proposed to adopt, by way of guidelines, would not only have failed to actually address the growing concerns of the over-extension of the criminal law; they in all likelihood would have made things worse by cementing the over-extension of the criminal law.”