Consensus Statement (Page 1/3)

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Canada’s approach to HIV criminalization is unscientific, unjust and undermines public health.

People living with HIV in Canada continue to be singled out for criminal prosecutions, convictions and imprisonment for allegedly not disclosing their HIV status to sexual partners. People have been charged and convicted even when there has been little to no possibility of HIV transmission. Canada has the third-largest absolute number of recorded prosecutions for alleged HIV non-disclosure in the world, and one of the highest rates of prosecution in the world.

Police and prosecutors rely most frequently on the charge of aggravated sexual assault, one of the most serious offences in the Criminal Code. Conviction carries a maximum penalty of life imprisonment and mandatory designation as a sex offender. Canada’s approach has come under repeated criticism domestically and internationally, including from United Nations expert agencies, human rights bodies, judges, women’s rights advocates and scientists.

The criminal law must be used only as a measure of last resort and must be limited in its scope and application.

In the very rare case in which someone intentionally transmits HIV, criminal charges may be appropriate. However, in the vast majority of cases, other interventions, including under existing public health law, may offer a better alternative, meaning there is no need to resort to the criminal law. Unlike criminal charges, these other interventions can and should be tailored to individual circumstances, should involve community organizations with expertise in HIV issues, and should be supportive rather than punitive. To be consistent with human rights, any such intervention must be based on the best available evidence, be proportionate to an objectively reasonable assessment of risk, and be no more intrusive or restrictive than necessary.

In accordance with international guidance, criminal prosecutions should be limited to cases of actual, intentional transmission of HIV.

In keeping with basic principles of criminal law, any prosecution should require all of the following:
  • proof that the person intended to transmit HIV;
  • proof that the person engaged in sexual activity that was likely to transmit the virus;
  • proof that HIV was actually transmitted; and
  • in the case of a conviction, a penalty that is proportionate to the actual harm caused.