More criminalization, further marginalization: Supreme Court’s HIV non-disclosure decisions create viral underclass

This is the second in a series of blog posts about the recent Supreme Court of Canada decisions about the criminalization of HIV non-disclosure.  See the first post here, in which we wrote about the perverse, negative impacts of the decision for women living with HIV.  The decisions in the Mabior and DC cases, in addition to enshrining HIV stigma in the rule of law, beg a discussion of access to treatment for people living with HIV in Canada.  We firmly believe that the decisions will not only be a disaster for women, they will likely also have a disproportionately negative impact on people living with HIV who are socially and economically marginalized and lack access to high quality health care.

In the Mabior and DC cases, the Court established a ridiculous criminal law test based on a realistic possibility of HIV transmission.  The test might be best described as “bad science fiction,” requiring people to disclose their HIV status to sexual partners unless they have a low viral load and use condoms for sexual intercourse.   This test effectively creates a legal distinction between two groups of people living with HIV—those people with  “low” viral loads in their bloodstream, and those with “higher than low” viral loads.  Confused about what that means?  So are we.  Under the Court’s decision, the “higher than low” group now face increased uncertainty about their legal obligations, and an additional threat of criminalization.

The Court has thrown two HIV prevention strategies, each highly effective at preventing HIV transmission, together into one risk test.  The result?  The Supreme Court has enshrined a so-called prevention guideline that’s as laughable as it is incongruent with any credible HIV prevention education taking place around the world.  Despite the medical evidence that that condoms, used properly, stop HIV transmission—which has underpinning the HIV movement for the last 30 years—people with higher than low HIV viral loads will be hard pressed to defend themselves against criminal charges based on HIV non-disclosure.   We also know, based on a large body of scientific evidence, that HIV medications significantly reduce the risk of HIV transmission between people.  “Optimal HIV treatment” occurs when a person achieves an undetectable viral load (under 50 copies of HIV per milliliter of blood).  Having a low or undetectable viral load drastically reduces the damage HIV can do to a person’s body and sets up the best scenario for people to live strong, healthy lives.  For many people living with HIV, taking HIV medications allows them to achieve a low or undetectable HIV viral load, which in turn significantly reduces, and in some cases effectively eliminates, the likelihood that they will transmit the virus.

The Court’s low viral load plus condoms test, itself an injustice, demands we dig deeper into the realities of living with HIV.  And ask how the decision is likely to play out for people living with HIV, especially the most marginalized among us.  This is a crucial question for those of us who believe that the state has a role in promoting health and wellbeing, equity in health program and services, and human rights.  Why are some people able to keep the HIV in their body under control (whether at a low or undetectable level), and others not?  Are some people receiving sub-optimal HIV care and treatment?  Are the answers to these questions strictly biomedical or, as is so often the case in the HIV epidemic, a product of social and economic inequality brought about by marginalizing structures in our society?

We have universal health care.  But that is a value more than a reality.  While the Canada Health Act proclaims universal access to medical services, it doesn’t result in equal access to healthcare for all people in every province or region, and certainly doesn’t guarantee universal access to pharmaceutical care.  Treating HIV is a complicated task.  Some people, despite trying different treatment protocols, just can’t achieve an undetectable viral load – their bodies don’t work that way.  While not ideal, HIV specialists deal with this all the time and have a number of strategies to work with patients so they can be healthy – despite having a detectable viral load.

However, many more people haven’t achieved “optimal HIV treatment” because they don’t have access to consistent HIV treatment, if they have access at all.  Achieving an undetectable viral load requires a person living with HIV to take (“adhere to”) their treatment when prescribed, as prescribed.  This can be hard for people for a lot of reasons—anything from the challenge of taking drugs that, for many, have harsh side effects, or to making sure the pharmacy where they live will even have enough drugs to dispense when it comes time to renew prescriptions.  Post-Mabior, a low or undetectable viral load has effectively become a threshold for equal citizenship under the law.  People living with HIV who can’t achieve this medical measurement are now threatened with criminalization in a way their low or undetectable peers are not.

We don’t have a comprehensive picture of how many HIV-positive people in Canada are on HIV anti-retroviral treatment.  Nor do we know how many have achieved undetectable viral loads.  But we know that people living with HIV who are already heavily marginalized experience significant treatment access barriers and, as a result, aren’t able to achieve undetectable viral loads.  Recent research has shown what many of us working in the field have known for a long time:

  • people living with HIV who are homeless or under-housed are often refused treatment and, when they have access, experience challenges adhering to treatment
  • people who use drugs are often refused treatment by medical practitioners who believe they aren’t able to adhere to a treatment regimen
  • prisoners often experience treatment interruptions when corrections pharmacies run out of stock, or they don’t receive treatment in a timely fashion during lockdowns or transfers

To put it another way, people who experience treatment barriers and, as a result, face significant challenges achieving an undetectable viral load, are the people living with HIV who are already criminalized and marginalized.

The Supreme Court ruling increases the burden on these folks living with HIV—adding further threat of criminal prosecution.  Meanwhile, what is being done to create new programming that expands access to treatment, health care, housing and additional social services for them?

In making this contemptible ruling, the Supreme Court has not only further stigmatized people living with HIV, but it has divided people living with HIV into two classes—those with responsive immune systems, and access to treatment and health services versus those without.  One lesson here, among many, is that we must continue our fight for the health and rights of all people living with HIV, especially those already marginalized by our deeply unequal, judgmental and unjust social institutions and practices.


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Protestors target prison building architecture conference









Activists call on architects to stop profiting off the Conservative Government’s damaging “tough on crime” agenda

OCTOBER 11 2012 – TORONTO 2:00pm: In the wake of the Supreme Court of Canada decision on HIV non-disclosure, which will see an increase in the criminalization of people living with HIV, protesters will gather outside of the downtown Hilton to call attention to the Academy of Architecture for Justice (AAJ) Conference today. The protestors are calling for a halt on Canadian prison expansions and a commitment to investment in housing, communities, health care and social justice. The annual American conference is being held for the second time in Canada and brings together architects, city planners, vendors, public safety officials, corrections officers and administrators to discuss issues related to the building of prisons, detention centres, and police and court infrastructure projects.

“We call on architects and planners to commit to building housing for our communities, and to reject contracts for building prisons,” said Zoe Dodd of the Prison Moratorium Action Coalition and AIDS ACTION NOW!, who spoke prior to the demonstration.“Poverty is increasing and we continue to be the only G8 country without a national housing strategy, instead, the big business of prison development is profiting off of warehousing marginalized people ”, said Dodd.

The conference comes just a month after a $45,000 Conservative government report was released by consulting firm Deloitte, which examined the benefits of private prison construction in Canada. “This conference reflects the scale-up of the devastating American style prison-industrial complex in our communities”, said Mikiki, from the Toronto Harm Reduction Alliance.  “The Conservative government implemented legislation aimed to increase Canada’s prison population so that private industry will profit off building new prisons”

Crime rates in Canada are the lowest in 40 years. Despite this, the Conservative government recently pushed through Bill C-10 creating harsher penalties for minor offenses. In anticipation of the increased prison population resulting from Bill C-10, the Conservatives have been contracting architects, vendors and planners to expand Correctional Service of Canada facilities to accommodate over 2,700 new prison beds. People of colour and specifically from Black, African and Caribbean communities, Aboriginal and First Nations people, people who use drugs, people living with HIV, and people without status in Canada are will all bear the brunt of this political and profit-driven move on the part of the Harper government.

Prison expansion is profiting off the lives of marginalized people”, said Marty of Toronto Drug Users Union. “As we have seen in the United States, prison expansion is not about justice for people, but big profits for private contractors”

The conference includes sessions highlighting the cost-effectiveness of prisons, new innovations for building solitary confinement units, designing prison units for women inmates, and the an overview of Toronto’s newly expanded South West Detention Centre. The Toronto South West Detention Centre, located near Mimico is Canada’s first prefabricated prison, which was initially intended to hold 1300 people, but can now hold nearly 2000. Designed by Toronto-based architects the Zeidler Group, the prison is inspired by American leaders in private prison construction Tindall Corporation.

The demonstration is being organized by the Prison Moratorium Action Coalition and includes speakers from community groups including AIDS ACTION NOW!, Toronto Drug Users Union, Toronto Harm Reduction Alliance, Ontario Coalition Against Poverty, Community Solidarity Network, Prisons with HIV/AIDS Support Action Network (PASAN), and No One Is Illegal Toronto.

Join the Prison Moratorium Action Coalition and our partners and allies as we rally against the construction and expansion of prisons and the prison industrial complex in our communities. The Downtown Hilton at University and Richmond at 2pm on Thursday October 11. 145 Richmond Street West, Toronto, ON M5H 2L2

Facebook event information:

Academy of Architecture for Justice (AAJ) Conference information:

Image above is of the expanded Toronto South West Detention Centre

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Supreme Court decisions increase risk of violence, coercion & criminalization against women with HIV

Today the Supreme Court of Canada cemented Canada’s position as the world-leader in the criminalization of people living with HIV.  We want to focus our first post on the negative impact of the decision on women living with HIV.

“If you ever leave me,” he says, “This is what I’ll do to you. I will take you to court. And I will tell them that you infected me…” Aboriginal Woman Living with HIV, Our Search for Safe Spaces: A Qualitative Study The Role of Sexual Violence Among Aboriginal Women Living with HIV. Vancouver, BC: Canadian Aboriginal AIDS Network, 2009.

HIV non-disclosure is a women’s issue and a feminist issue and an issue for all concerned with health and human rights. Violence against women is the same type of issue. Today, the next chapter was written in the cautionary tale of what happens when entrenched privilege and ideas about what is means to “protect women” set the agenda for marginalized, highly stigmatized people. The Supreme Court of Canada delivered two landmark rulings about HIV, and the criminal law. Central to these rulings was a discussion about protecting the rights of women to be free from violence and coercion . The two cases are DC and Mabior; click on the links to go to the Court’s reasons for decision.

The question the Court looked at was: Under what circumstances does a person living with HIV have an obligation under the criminal law to disclose their HIV status to a sexual partner? The focus was on sexual intercourse, condoms, and low or undetectable HIV viral load. The Court decided that there is a new test in the land as of today: If the sex carries a realistic possibility of HIV transmission, then the HIV-positive person has a duty to disclose. The Court provided some guidance about the meaning of realistic possibility—if the person living with HIV has a low viral load and uses a condom, there is no realistic possibility of HIV transmission and they have no criminal law duty to disclose. But the vague language of realistic possibility opens the door for more prosecution and persecution of those living with HIV. The decisions have done nothing to address the realities facing people, and in particular women, living with the disease.

Sexual assault lies at the heart of the he criminal law applied to people living with HIV who allegedly do not disclose. Sex without consent is a crime—what exactly consent means in the context of HIV-positive people having sex is defined in relation to the risk of HIV transmission involved with the sex. HIV-positive people are most often charged with aggravated sexual assault—maximum penalty of life imprisonment, plus registration as a sex offender. You got it right, sexual assault law, the same law applied to violent, coerced, forced sex—to rape. With the same penalties.  But with much higher rates of conviction for HIV non-disclosure than other prosecutions for sexual assault. And let’s be clear, people like DC and Mabior were convicted without ever transmitting HIV to their sex partners. Even putting someone at risk of HIV transmission is a crime, not just transmitting HIV.

Although sexual assault law was put in place to protect women-who have historically borne and continue to bear the overwhelming burden of sexual violence-today’s decision will likely lead to increased violence toward women who live with HIV. It will likely also prevent them from accessing HIV testing, treatment, services and supports.

When it is safe to do so, the vast majority of people living with HIV disclose their status to their partners, or take steps to effectively protect their partners from HIV transmission. However, imbalances in power relationships between men and women, including between men and transgendered women, make it more difficult for women living with HIV to consistently disclose their status or to negotiate safer sex practices with their male partners. Negotiating condom use is particularly difficult as it requires explicit consent and cooperation of men. Women are vulnerable to violence if they do not concede to the sexual desires of their male partners. Violence against women is also associated with disclosing HIV status.  Men have used criminal allegations against women living with HIV as a weapon of abuse, which pushes them further away from justice, autonomy, and safety.  The Supreme Court’s decision in Mabior has given abusive men a more powerful tool to coerce, control and to trap in abusive relationships women living with HIV.

One of the two cases the Supreme Court decided today involved criminal charges against a Quebec woman, known by her initials DC. DC and her son were beaten up by her common law spouse, as their live-in relationship was coming to an end in 2004. He was charged, sent to trial, convicted, and got off with a light sentence because …. Guess what he did? He called the cops and told them that DC had not disclosed her HIV status to him the first time they had sex, four years before he beat her up. And he said no condom was used. Guess who the cops believed? Guess who the trial court judge believed? You got it. DC was arrested in 2005, and convicted in 2008 after a trail.  She has been fighting ever since to clear her name. Today the Supreme Court did that, by saying the trial judge was ham-fisted in the way he weighed and assessed the evidence about whether a condom was used. The Supreme Court tied itself in a knot to find a technical legal ground for acquitting DC.  We are sure that this “victory” doesn’t start to make up for the nightmare DC and her family have suffered for close to 8 years now.

But that’s not all the Supreme Court did today. If the DC case was to start all over tomorrow, we are pretty sure that she would find herself in the very same situation as she did back in 2005. Having to defend herself against her abusive ex-spouse’s charges, hounded by gung-ho police, and persecuted by Crown prosecutors bent on enforcing, to the harshest degree, laws designed to protect women from male violence. Ironic doesn’t even begin to describe this situation. Unjust? Unconscionable? Outrageous miscarriage of justice?

Wait, it gets “better” for women under this decision, under the guise of protecting women’s equality, autonomy, and right to choose with whom they will have sex and the circumstances of that sex. By our reckoning, DC would be in a worse position under the new test set out by the Supreme Court. Under the old test, a number of Canadian courts of appeal had decided that people should not go to jail if their HIV viral load was low or undetectable, or if they used condoms. One or the other—not both. In fact, the Quebec court of appeal acquitted DC because her viral load was undetectable, meaning she posed no significant risk—the old test, established by the Supreme Court in the 1998 Cuerrier case—of transmitting to her partner. Now? Under the Supreme Court’s new realistic probability test DC would have to show that she had a low or undetectable viral load, and that the guy used a condom. And she would bear what the Supreme Court likes to call the “tactical burden” of putting evidence of condom use and her viral load before the court. So much for the presumption of innocence, and the Crown having to prove all elements of crime beyond a reasonable doubt in order to secure a conviction. So much for upholding the equality rights and dignity of women.

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AIDS ACTION NOW! @ Ça March Montreal

La lutte que mène le gouvernement fédéral contre les droits humains est fondée sur une politique moralisatrice, plutôt que sur les faits. Les attitudes stigmatisantes de ce gouvernement vont à l’encontre de la science et de la dignité, et ne font qu’empirer l’épidémie du VIH dans les prisons et dans la population générale.

Joignez-vous à la brigade AIDS ACTION NOW! Pour Ça Marche et manifestez contre la criminalization des personnes atteintes du VIH. Nous vous invitons à porter des écharpes sur lesquelles nous écrirons cette revendication: METTEZ FIN à LA CRIMINALIZATION des personnes séropositives!

Réunion bricollage d’écharpes et création d’enseignes à ACCM, mercredi le 26 septembre, 19h, 2075 Plessis

Meet up for sash and sign crafting at ACCM Wed Sept 26 @ 7pm, 2075 Plessis

The Federal Government’s crusade to destroy human rights and promote policy based on moralistic and stigmatizing attitudes, rather than with evidence, science and dignity is actively driving these epidemics in prisons and in the general population.

Join us in speaking out against the criminalization of people living with HIV: wear a sash at Ça Marche! and walk with AIDS ACTION NOW!

Dimanche le 30 septembre, à 9h30, Place Émilie-Gamelin
Sunday September 30, 9:30am

Facebook event here!
Ça March website

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HIV PEP in Ontario: How many infections could be prevented if gay men had access?

Post-exposure prophylaxis (PEP) means using anti-HIV medications (the same meds people living with HIV take to treat HIV infection) for approximately a month after a potential exposure to HIV.  PEP has been shown to reduce the risk of someone becoming infected with HIV.

Here is a “cheap” blog post … borrowed from our twitter feed.  A coffee conversation with a leading Canadian Gay Men’s Health Activist inspired us to think about the many, many relationships between gay men’s health and HIV.  And to ask “Is the Ontario government doing all it should to respect, protect and fulfill the right to health of gay men in the face of the high rates of HIV in the gay men’s community in Ontario?” And for that matter, shouldn’t HIV post-exposure prophylaxis (PEP) be available, free of charge, to anyone who needs it after a high-risk sexual act?

PEP is currently available to survivors of sexual assault-a vital and hard-fought service for women, gained by the efforts of anti-violence/anti-sexual assault activists and researchers putting the issue on the agenda and making the case.  Piqued your interest?  Read on … You can follow us @AIDSActionNow on Twitter.  That is also where you can access all of the hyperlinks in the Twitter feed below.

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