Justice

It’s time to end the overcriminalization of HIV in B.C.

Attorney General David Eby must turn concern into concrete action
Photo: B.C.'s Alouette Correctional Centre for women inmates. By Province of British Columbia.
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It’s difficult to imagine someone going to prison for something as personal as their HIV status, but that remains a real risk for people living with HIV in Canada. The past few years have seen important progress in addressing this unjust criminalization, but it is still too little, with a patchwork of different approaches across the country and plenty of uncertainty remaining.

Two years ago, then-federal attorney general Jody Wilson-Raybould acknowledged that “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.” And two months ago, World AIDS Day brought more good news, when she issued a new directive with some important limits on prosecutions.

This was a welcome step in response to calls from community organizations across Canada in a consensus statement released in 2017. However, this directive governs only federal prosecutors, who handle criminal prosecutions in Canada’s three territories. Provincial attorneys general must make the next move in their respective jurisdictions.

Right now, all that exists to guide prosecutors in British Columbia is a BC Prosecution Service policy that falls far short of what is needed.

The Supreme Court of Canada has ruled that there is a duty to disclose a known HIV-positive status to a sexual partner before engaging in activity that poses a “realistic possibility” of transmission. B.C.’s current policy states that, in applying this standard, prosecutors should have regard to the available science. Yet, despite the available science, the policy does not set out a single instance in which Crown counsel will or should refrain from prosecution because this threshold is not met.

More than a year ago, Ontario’s attorney general directed provincial prosecutors not to prosecute in cases where someone living with HIV has a “suppressed viral load” because ample evidence shows there is effectively zero possibility of transmitting the virus to a sexual partner. Yet B.C.’s current policy doesn’t even say this clearly.

Meanwhile, the science — summarized most recently in an international expert consensus statement released last year by scientists from around the world (including two leading B.C. HIV experts) and the leading HIV scientific organizations — also shows that the risk of transmitting HIV through oral sex or sex using a condom is either zero (e.g., in the case of an intact condom properly used) or negligible at the most. A directive to prosecutors should therefore also recognize that prosecutions are not warranted for such activities.

The potential for confidential health information, including discussions with health care providers, to be used as evidence in court further threatens access to care — including the HIV treatment that prevents further transmission.

Instead, B.C.’s policy encourages Crowns to consider prosecuting even for a single act from which there was no transmission of HIV and, according to the best available science, only a minute risk of it.

And while every Crown attorney must always decide whether prosecution in a given case “is in the public interest,” B.C.’s policy is silent about a whole range of relevant public interest considerations that would point toward a more limited use of the criminal law.

For example, overcriminalization doesn’t just harm people living with HIV; fear of prosecution drives people away from seeking testing. The potential for confidential health information, including discussions with health care providers, to be used as evidence in court further threatens access to care — including the HIV treatment that prevents further transmission.

British Columbia can, and must, do better. Its attorney general, David Eby, has publicly stated his concern about overcriminalization. Now that concern needs to be translated into concrete policy. Eby needs to work with community organizations and scientific experts in adopting a directive that, at the bare minimum, reflects the limits on criminal prosecutions recently adopted federally.

But British Columbia can go further, improving upon the federal directive by limiting the use of criminal charges to cases where it is alleged someone intentionally transmitted the virus, while also stopping prosecutions for non-disclosure where scientific evidence tells us that there is no significant risk of transmission.

British Columbia has an important opportunity to lead the way for further reform across Canada. The attorney general should reaffirm his commitment to human rights and to evidence-based decision-making, and should strive to create an environment that allows people to seek HIV testing, access treatment, and live without the ongoing fear of unwarranted, unscientific, and unjust prosecutions.

Richard Elliott is the executive director of the Canadian HIV/AIDS Legal Network.

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