Step by step: Ending HIV criminalization in Canada through community advocacy based on science and rights Richard Elliott Canadian HIV/AIDS Legal Network 24 July 2018 AIDS 2018, Amsterdam Oral abstract TUAD0203

The legal context federal Criminal Code, largely administered by 10 provincial governments (except in 3 territories in north) no HIV-specific provision HIV criminalization via prosecutors pursing, and courts interpreting, general Criminal Code provisions such as: administering a noxious thing common nuisance criminal negligence causing bodily harm attempted murder aggravated sexual assault >210 prosecutions to date since 1989

The courts Act I: “The Supremes weigh in” (1988) HIV/STI non-disclosure = fraud when there is a “significant risk of serious bodily harm” fraud = no legally valid consent = sexual assault furthermore… exposing person to risk (of HIV) “endangers life”  aggravated sexual assault maximum penalty = life imprisonment + mandatory sex offender registration Q: condom use = no significant risk = no duty to disclose? A: “maybe”

The courts ACT II: “Between the rulings” Majority of lower court decisions accept that condom use = no “significant risk” = no criminal liability for not disclosing But… some decisions to contrary = law not clearly settled Meanwhile… prosecutions increase substantially (peak in 2010) first judicial training (2010) new science re: viral load and transmission (2011) some successful interventions in court proceedings + support to defence lawyers campaign(s) for prosecutorial guidelines (provincial) media advocacy

The courts ACT III: “The Supremes – Take 2” (2012) SCC revisits test for duty to disclose: in case of harm of HIV infection, “significant risk of serious bodily harm” = “realistic possibility of transmission” SCC: we should not trivialize criminal law (particularly sexual assault) by criminalizing speculative or negligible risks, but… condom use + “low” viral load (<1500 copies/ml) = no realistic possibility of transmission … and on the evidence before the court, neither suffices on its own Q: are both condom use and low VL always required? A: not necessarily

Canada: the law further revisited Evolving, contested interpretations of “realistic possibility” (relating to viral load) OntCA (2013): must use condom, regardless of viral load 10+ prosecutions even though accused person had low/undetectable viral load (9 of them in Ontario) but more encouraging recent developments… cases of charges withdrawn, reduced some trial courts critical of SCC and OntCA approach 3 cases holding that “undetectable” viral load alone = no realistic possibility  no assault NB: condom issue is unresolved

The science “Swiss statement” (2008) HPTN052 results (2011) CDC risk estimates (2012) Canadian consensus statement (2014) HPTN052 further results (2016) PARTNER study (2016) “U=U” consensus statement (2016) Opposites Attract study (2017) forthcoming global Expert Consensus Statement (JIAS, 2018)

Law & its application evolving CCHRC’s Community Consensus Statement (Nov 2017) Justice Canada report (1 Dec 2017)  solid recommendations New guidance for prosecutors Ontario (Dec 2017) – re viral load <200 copies/mL shoddy new British Columbia guidance (Mar 2018) Future cases … some key objectives: consolidate viral load defence re-establish condom defence Other advocacy priorities & objectives: improved prosecutorial guidance (fed/terr & prov) Criminal Code reform (e.g., sexual assault, sex offender)

Selected resources Legal Network’s page on HIV criminalization www.aidslaw.ca/criminalization Canadian Coalition to Reform HIV Criminalization www.HIVcriminalization.ca End Unjust HIV Criminalization: Community Consensus Statement (Nov 2017) Frequently Asked Questions on HIV criminalization and the Community Consensus Statement

More information: Richard Elliott relliott@aidslaw More information: Richard Elliott relliott@aidslaw.ca +1 416 595 1666 (ext. 229) www.aidslaw.ca/criminalization