Ontario a ‘world leader’ in unjustly prosecuting people living with HIV, advocates say 

HIV-positive individuals being ‘criminalized’ when it comes to disclosing their status to sexual partners, by a criminal justice system that has failed to catch up to the science around HIV and the risks of transmission, critics argue.

At least 184 people in 200 cases have been charged in relation to HIV non-disclosure since 1989, according to a report published this year by the Canadian HIV/AIDS Legal Network. In Ontario, at least nine cases have been taken to court since 2012.

“When used correctly and no breakage occurs, condoms are 100 per cent effective at stopping the transmission of HIV,” according to a 2014 consensus statement published by a number of leading Canadian HIV/AIDS medical experts. As well, because of advances in medication that can keep a person’s viral load low or undetectable, advocates say that the risks of transmission are far lower than they once were, regardless of condom use.

Therefore, they say, HIV-positive people should not be required to be placed in the delicate position of disclosing their status, unless there is intention to transmit HIV as well as actual transmission of HIV.

“In the best of all worlds, that would be the right thing do,” Toronto criminal defence lawyer Cynthia Fromstein, who has represented many HIV-positive individuals, said of a person disclosing one’s status.

“However, people have faced bad reactions, people have faced violent reactions, to disclosing their HIV status. People are also just people, they face rejection, which is hard, and particularly if you know that you in fact don’t pose a risk to someone, then I think people don’t want to put themselves in that position.”

Matters are further complicated by the fact that Ontario has no official prosecutorial guidelines to help guide Crown attorneys in their approach to these cases, and to decide whether to even bring one to court.

It gets even more complicated when you consider the Supreme Court’s last pronouncement on the topic in 2012, where it was found that a person must disclose if there is a “realistic possibility of transmission,” a phrase that has left Crown attorneys and judges differing on just what that means.

The federal government has been studying the issue since last year, and it’s expected to be discussed at the upcoming federal, provincial and territorial justice ministers’ meeting in Vancouver this week.

The gathering comes almost a year after Wilson-Raybould announced last Dec. 1, World AIDS Day, that she intended to look into the criminal justice system’s handling of HIV non-disclosure cases and work on the issue with her provincial and territorial counterparts.

“HIV treatment has slowed disease progression to the point that, for many, HIV infection can now be regarded as a chronic, manageable condition,” she said in a statement at the time.

“Still, 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. Just as treatment has progressed, the criminal justice system must adapt to better reflect the current scientific evidence on the realities of this disease.”

The Criminal Code contains no laws specifically related to HIV non-disclosure, but the offence of aggravated sexual assault — reserved for the most egregious sexual assaults — is typically laid in such cases, and almost always carries prison time following conviction.

HIV/AIDS organizations do not oppose prosecutions in the rare cases where an individual had the intent to transmit the HIV virus, although whether the charge should still be aggravated sexual assault remains a matter of discussion.

While the federal government is responsible for amending the Criminal Code, it is the responsibility of provincial Crown attorneys to apply the law, and use their discretion when deciding whether to prosecute a particular offence.

In a statement sent to the Star last week, the federal department of justice said the government hopes to provide an update on its work on the issue by the end of the year. But it also reiterated that enforcement of the laws is very much a provincial matter.

“The work currently being undertaken with provincial partners will allow each jurisdiction to make informed decisions about how to address prosecutorial and charging practices within their area of responsibility,” the statement said.

Advocates have demanded that Ontario Attorney General Yasir Naqvi order a moratorium on the prosecution of non-disclosure cases — except in cases where intentional transmission of the virus is alleged — until the federal government implements its plan, which may include prosecutorial guidelines that the provinces could choose to adopt.

Their pleas have so far proven to be unsuccessful, as Crown attorneys in Ontario continue to bring non-disclosure cases — even where the virus was not transmitted — to court.

“The intolerable fact remains that Ontario continues to be a world leader in unjustly prosecuting people with HIV,” the Ontario Working Group on Criminal Law and HIV Exposure wrote in an April letter to Naqvi.

“The pattern of zealous, overly broad prosecution of people living with HIV in Ontario is the result of deliberate choices, both by individual prosecutors and (the Ministry of the Attorney General).”

Naqvi’s office said last week that he did meet with the working group last year, and that during the meeting, “the attorney general reiterated his commitment to work with the federal government as they review the way our justice system handles HIV-related cases.”

The discussion between advocacy groups and successive attorneys general in Ontario on non-disclosure prosecutions have been described as more or less one-sided, with very little progress being made on the government’s side.

Several years ago, the government did propose prosecutorial guidelines for non-disclosure cases, but the three outside experts allowed to read them — and who are also barred from discussing their contents — said they were so bad they told the ministry that no guidelines would be a better option.

“I don’t think it would be fair to say that we were consulted in the drafting of anything,” said Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network, who was one of the three experts, along with Peck and criminal defence lawyer Jonathan Shime, to see the draft.

“We had repeatedly put forward our ideas about what we thought they should be about.”

Among those suggestions: an acknowledgement that an undetectable viral load alone means there is no realistic possibility of transmission, regardless of condom use.

What prosecutors do have access to is a so-called “practical guide” prepared in 2010 by Hamilton Crown attorney Karen Shea, who successfully prosecuted Johnson Aziga for first-degree murder, an infamous 2009 case in which two of the women infected with HIV by Aziga later died from AIDS. Aziga’s trial heard that he had known since 1996 that he was HIV-positive, but did not start taking medication until 2005, two years after his arrest.

Shea’s 72-page document, which the Ministry of the Attorney General fought for years to keep secret after receiving a freedom of information request from Toronto lawyer Marcus McCann, covers everything from the elements the Crown must prove to secure a conviction, to the kind of information that should be sought on an HIV-positive individual from public health officials.

McCann expressed concern that the guide could have a chilling effect on individuals seeking help from public health authorities, as the guide encourages Crowns to seek information on accused persons from public health to use in court.

Indeed, HIV test results and other information gleaned from public health have been put on the record in court by the Crown at bail hearings and trials in non-disclosure cases.

The provincial government has previously acknowledged that while it’s not an official policy or guideline, Shea’s guide has been used to assist other Crown attorneys, although it’s unclear which parts are still consulted given that the science and case law have evolved since 2010.

“Many roads lead to Karen Shea. I don’t think she’s the only destination, but she is clearly on the turnpike as one of those stops,” said Elliott at the Canadian HIV/AIDS Legal Network.

Shea declined to comment to the Star.

Crown attorneys take into account scientific developments and new case law when considering to prosecute a case, said a spokesperson for the Ministry of the Attorney General, who confirmed that the ministry’s criminal law division has a “group of experienced prosecutors who are available to provide advice on HIV exposure cases,” but didn’t say who is part of that group.

The last time the Supreme Court ruled on HIV non-disclosure, in a 2012 case known as R v. Mabior, it found that disclosure was not necessary if the individual had a low viral load and a condom was used.

But Chief Justice Beverley McLachlin, writing for a unanimous court, also said that the double requirement “does not preclude the common law from adapting to future advances in treatment and to circumstances where risk factors other than those considered in this case are at play.”

The meaning of that statement has played out in Canadian courtrooms since 2012, including in a recent Brantford non-disclosure case, where the Crown argued that Mabior requires low viral load andcondom use to avoid disclosure obligations, but the judge found otherwise.

The case involved a man, C.B., who has a low viral load but did not disclose to two women before having condomless sex. He was subsequently charged with two counts of aggravated sexual assault. Neither complainant was infected with HIV.

The trial took place in April, four months after Wilson-Raybould announced the federal government would target the over-criminalization of HIV non-disclosure.

Testifying for the defence, Dr. Philippe El-Helou, director of the HIV Clinic at McMaster University, said that in all of his years treating HIV patients, “he has not seen a transmission occur from a carrier who has an undetectable viral load,” Ontario Court Justice Robert Gee wrote in his decision.

The judge acquitted C.B. of all charges.

“The question becomes: Is condom use the only way to raise a reasonable doubt about the risk of transmission in a person with a low viral load or, if at the time Mabior was decided in 2012 it was the only way, has the science advanced to the point where it no longer is?” Gee wrote in a ruling released last month.

“The defence takes the position that the Supreme Court’s decision was not intended to establish an absolute and fixed rule that a low viral load and condom use was the only way to raise a reasonable doubt about the possibility of transmission.”

Gee sided with the defence, accepting El-Helou’s evidence that given C.B.’s undetectable viral load, “the risk of transmission in this case was as close to zero as can be measured.”

It is exactly the kind of case that advocates have long demanded be kept out of courtrooms in the first place, and why they hope sound prosecutorial guidelines would be of great help to Crown attorneys.

Chad Clarke has become an outspoken advocate since leaving prison in 2011, marching in the streets and speaking at numerous HIV/AIDS conferences. What he would most like to see is his name taken off the sex offenders’ registry.

He said he has post-traumatic stress disorder that goes “through the roof” every year when he has to sign in with police, one of the conditions of being on the registry. He lives on a fixed income, applying for jobs is difficult, and family relationships are strained.

“If you want to keep the charges against me, I’ll live with that, but take me off that damn sex offenders’ registry, because every day that I look at myself in the mirror, I see myself as a sex offender, and that’s not cool,” he said.

“I would like to personally see that instead of sticking this person in jail, you get them a point of care, you get them on medication right away, you get them mental health care, because trust me, mental health (issues) will go with you the rest of your life if you have HIV.”