Canada’s approach to people who don’t disclose their HIV status to sexual partners does not reflect current science, is “overly broad and punitive,” and the government must immediately work to curb criminal prosecutions of those who do not disclose their status, according to a parliamentary committee report released Monday.

“To end the epidemic, the committee is of the view that barriers undermining the public health objectives of HIV prevention, testing and treatment need to be removed,” says the Liberal majority on the House of Commons’ standing committee on justice and human rights.

“The committee strongly believes that the use of criminal law to deal with HIV non-disclosure must be circumscribed immediately and that HIV must be treated as a public health issue.”

The committee heard from a number of scientists, academics and people living with HIV this spring, who testified that continuing to prosecute people who don’t disclose their HIV status to their sexual partners — even when there was no transmission or a real risk of transmission of the virus — affects whether people will get tested and then receive treatment.

In Canada, an HIV-positive person who does not disclose their status to their partner faces the risk of being charged with aggravated sexual assault, which typically carries prison time, as well as being placed on the national sex offenders’ registry. The committee heard that there have been few criminal cases in Canada where there was actual transmission of the virus. Witnesses also testified that intentional HIV transmission is rare.

There continues to be inconsistent guidelines for prosecutors across the country, the committee heard, as to when a charge should be brought against a person who does not disclose their HIV status. The Supreme Court last ruled in 2012 that a person must disclose when there is a “realistic possibility of transmission,” which some lower courts have interpreted as meaning a person must both have a low viral load (determined by the amount of the virus in a person’s blood) and use a condom, while other courts have ruled a low viral load is enough.

The justice committee has now entered the fray, recommending the government create a specific Criminal Code offence for actual transmission of infectious diseases, including HIV, and that the government work with the HIV/AIDS community to limit the use of the criminal law when dealing with HIV.

“The current approach to HIV non-disclosure is clearly overly broad, but the committee believes that in some cases prosecutions under the criminal law would be appropriate,” the Liberal majority wrote.

The Canadian HIV/AIDS Legal Network, which appeared before the committee, said in a statement Monday that it welcomes many of the committee’s conclusions, but said prosecutions must be further limited to actual transmission and intent to transmit.

“Infectious diseases are a public health issue and should be treated as such,” said executive director Richard Elliott. “We strongly disagree with the recommendation to extend the criminal law to other infectious diseases. We will not solve the inappropriate use of the criminal law against people living with HIV by punishing more people and more health conditions.”

The committee requested the government table its formal response to the report within 60 days.

Speaking at a symposium on HIV criminalization in Toronto last week, federal Justice Minister David Lametti said his government would not be able to act on the committee’s recommendations before this fall’s federal election, but that if returned to power, his government could explore options that include drafting a criminal law provision that targets intentional transmission of HIV.

A spokeswoman for Lametti said Monday that the minister’s office is reviewing the committee's report.

“We all share in the commitment to reducing stigma and discrimination against those living with HIV or AIDS,” said Rachel Rappaport. “We know that over-criminalization can lead to increased rates of infection because it discourages Canadians from getting tested and seeking treatment.”

Considering that drafting a new offence could take time, Lametti should immediately form a working group with the provinces to come up with a prosecutorial directive “to end criminal prosecutions of HIV non-disclosure,” except in cases of actual transmission, the majority recommended.

Other recommendations include having the justice minister immediately establish a mechanism to review cases of individuals who would have been convicted for not disclosing their HIV status but who would not have been prosecuted had the new laws and rules recommended by the committee been in place. The review should also include people prosecuted but not convicted, the majority said.

The majority also recommended the government work with the provinces and territories to increase access to HIV testing, including anonymous testing and self-testing.

The recommendations are “a huge step forward toward the goal of recognizing that this is a public health issue,” said Daniel Brown, vice-president of the Criminal Lawyers’ Association.

Loading... Loading... Loading... Loading... Loading... Loading...

“These are really progressive recommendations that recognize the harm that prosecuting HIV non-disclsoure cases as sexual offences has stigmatized those with the disease and discouraged them from seeking treatment,” he said.

The Conservatives on the committee dissented, saying there should still be prosecutions not only for actual transmission, but also in cases where there was a failure to disclose and realistic possibility of transmission.

The NDP also dissented, saying the majority’s recommendation opens the door for criminal prosecutions for people living with diseases including tuberculosis and Hepatitis C, “rather than recognizing that all communicable diseases including HIV are better dealt through existing public health measures.”