Ontario Crown Prosecutors on Witch-Hunt: PHAs Must Always Disclose HIV Status before Sex or Face Imprisonment

This is a long posting … but we urge you to read it.  The Ontario government wants to turn back the clock to the early days of the HIV/AIDS epidemic, when people living with HIV were openly and publicly vilified, persecuted and discriminated against.  And it is using the most powerful weapon at the government’s disposal to do it—the criminal justice system.

On June 25 and 26, 2012, the Court of Appeal for Ontario will hear appeals in two HIV non-disclosure cases.  In both cases the Ontario government will argue that people living with HIV have a legal obligation to disclose their HIV to all sexual partners regardless of the risk of HIV transmission associated with the sexual act.  Regardless of whether a condom is used. Regardless of the HIV-positive person’s HIV viral load—even if it is undetectable. Regardless of whether it was only oral sex.  If the HIV-positive person does not disclose before sex, they can be charged with sexual assault or aggravated sexual assault.  If convicted of either of these charges, they can be imprisoned for years and must register as a sexual offender.

In the two cases being appealed, the trial judges made significant errors when they convicted the HIV-positive accused person.  The trial judge in each case ignored the “significant risk” test, which the Supreme Court established as the legal standard for HIV non-disclosure cases.

  • In R. v. M, the trial judge did not mention the “significant risk test.”  He only looked at whether the accused had sex without disclosing his status before convicting him of aggravated sexual assault.  And the judge refused to consider whether a condom was used, saying that it did not matter.
  • In R. v. F, the accused was convicted of aggravated sexual assault for having unprotected sex with several people.  There was no medical evidence that the sex posed a significant risk of HIV transmission. The accused was also convicted of sexual assault for having protected sex. The trial judge ruled that it was not necessary to establish a significant risk to convict someone of sexual assault.

The government’s position makes it clear that the Ontario Attorney General has no intention of pursuing a measured, just and evidence-informed approach to the complex legal and social issues presented by HIV non-disclosure. If  the Court of Appeal for Ontario accepts the government’s argument it will effectively authorize a witch-hunt against people living with HIV. The Ontario government’s position is a complete rejection of current scientific research that unequivocally demonstrates that HIV is an extremely difficult infection to transmit. It threatens to destroy the lives of many people living with HIV, and to undermine the fight against HIV in Ontario.

The government’s narrow-minded, AIDS-phobic position is especially troubling given the context and realities of HIV non-disclosure criminal prosecutions:

  • People with HIV from African, Caribbean and Black communities, some of whom have been immigrants and refugees, have been prosecuted in significant numbers by the Ontario government and vilified publicly in the media as a result. The systemic and institutional racism in Ontario’s criminal justice system is well documented.
  • The number of women living with HIV facing criminal prosecutions has been steadily increasing.  A growing number of feminist commentators are pointing out the troubling distortion of sexual assault law, even as sexual violence against women continues to be epidemic and often poorly handled by the criminal justice system.
  • Gay men in Ontario continue to bear a disproportionate burden of HIV infections. In recent years, the number of HIV non-disclosure prosecutions involving gay men has increased both in number and in the severity of criminal charges faced. This is not surprising given the historic, and ongoing, mistreatment of the LGBT community in the criminal justice system, typified by the Toronto bathhouse raids in the 1980s and Pussy Palace raids in 2000.

Email Ontario Attorney General John Gerretson and Premier Dalton McGuinty.  Tell them to stop the witch-hunt against people living with HIV. Tell them they are putting lives at risk and sacrificing justice at the feet of prejudice and ignorance.  Stop them before they turn back the clock on the HIV/AIDS epidemic and turn their back on people living with HIV. Email them today, before it is too late! jgerretsen.mpp@liberal.ola.org / dmcguinty.mpp.co@liberal.ola.org.

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AAN! Tells Ontario Crown Prosecutors to “Think Twice” Before Going Ahead with Criminal Cases

ANN! placed a half-page ad  in this week’s edition of the Ontario Reports urging Crown Prosecutors to Think Twice before proceeding with HIV non-disclosure criminal cases. Crown Prosecutors play a pivotal role in the criminal justice system-they decide whether or not to proceed with criminal charges, and what charges are appropriate if they decide to go ahead with a prosecution.

The Ontario Reports is the weekly publication sent to all lawyers in Ontario.  It includes important cases, announcements, and practice directions to lawyers from courts and ministries.  By directly targeting the Think Twice social marketing campaign at Crown Prosectors (and the legal profession), AIDS Action Now! is challenging Crown Prosecutors and the legal community to change the way they think about HIV non-disclosure cases.  Our ultimate goal is to reduce the number of HIV non-disclosure criminal prosecutions as a way to promote the health and rights of people living with HIV.

Stay tuned for more of our Think Twice social marketing campaign.  We will be unrolling a series of ads, aimed at different groups who play a role in HIV non-disclosure prosecutions, over the coming months.

Take a look … tell us what you think.

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Tell the McGuinty Liberals that HIV+ People Need Safe, Secure and Affordable Housing

Ontario research has shown that safe, secure and affordable housing can help maintain and improve the health of people living with and at risk of HIV.  The McGuinty Liberals ignored this evidence when passing Budget 2012, which cuts safe housing supports for people on social assistance in Ontario.  Shame!

These housing cuts will take effect in January of 2013, and put the health of many poor and marginalized Ontarians at risk.  It is not too late to act.  Action=Life.  Please sign on to the Income Security Advisory Centre’s email petition.


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Feds cutting healthcare for refugees: Health of HIV+ put at risk

The Federal government is making major changes to the Interim Federal Health Program, which refugee claimants have historically relied upon for healthcare.  Not surprisingly, the Feds are slashing health coverage for refugees.  The changes will take effect June 30, 2012.

The Association of Ontario Health Centres has called the decision “bad health policy” and predicts that refugees will “likely to become seriously ill, ending up in hospital beds or emergency departments”.  They should know-Ontario Health Centres provide healthcare to many refugees and other marginalized populations, including people with active addiction, street-involved people, and people living with HIV and hepatitis C.  The Association is mobilizing action to oppose cuts to the Interim Federal Health Program, including signing a petition.

The Canadian Council for Refugees (CCR) has gone on record as saying that these cuts are “inhumane and unjustified”.  In May, the CCR the received information confirming that refugee claimants, rejected refugee claimants and protected persons diagnosed with HIV will continue to be covered under the Interim Federal Health program. This coverage includes costs of medical consultations and prescribed medication.  However, the CCR remains concerned that there will be persons who excluded from this coverage for HIV treatment (eg. persons ineligible to claim refugee status, persons with abandoned/withdrawn claims, persons eligible for the PRRA only), and that there will be no medical coverage at all for the many other serious medical needs of people living with HIV.  Visit the CCR website for more info and to read their media release.

The HIV & AIDS Legal Clinic (Ontario), which provides free legal services to many HIV+ refugee claimants in Ontario, is also very concerned about the cuts to the Interim Federal Health Program and the negative effects they will have on HIV+ peoples’ health.  According to the legal clinic, “Refugee claimants or refused refugee claimants who receive a drug card through the Ontario Disability Support Program (ODSP) or Ontario Works (OW) will still be able to access prescription medications using their ODSP or OW drug card.  It is the doctor’s visits and hospital visits for issues other than HIV treatment that may be affected.”  If you are refugee claimant, or your refugee claim has been refused, and you have questions about how these changes will affect you, contact the legal clinic:

HIV & AIDS Legal Clinic Ontario (HALCO)
Phone: 416-340-7790 or toll-free in Ontario 1-888-705-8889
65 Wellesley Street East, Suite 400
Email: talklaw@halco.org



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HIV Criminalization - Five New Video Workshops for Advocates

The Canadian HIV/AIDS Legal Network has recently completed a series of  five video workshops

1. Introduction
2. HIV non-disclosure and criminal law
3. “Significant risk of serious bodily harm”
4. Criminalization of HIV non-disclosure: why it is the wrong approach
5. Responding to the criminalization of HIV non-disclosure: impacts and advocacy

Également disponible en français à vimeo.com/album/1963059.

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