Criminalization Creep : Legal developments and community responses to criminal prosecutions for HIV non-disclosure in Canada

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1 Criminalization Creep : Legal developments and community responses to criminal prosecutions for HIV non-disclosure in Canada CPHA Centenary Conference 2010 Cécile Kazatchkine Policy Analyst Canadian HIV/AIDS Legal Network 1

About the Canadian HIV/AIDS Legal Network The Canadian HIV/AIDS Legal Network (www.aidslaw.

2 About the Canadian HIV/AIDS Legal Network The Canadian HIV/AIDS Legal Network ( promotes the human rights of people living with and vulnerable to HIV/AIDS, in Canada and internationally, through research, legal and policy analysis, education, and community mobilization. The Legal Network is Canada s leading advocacy organization working on the legal and human rights issues raised HIV/AIDS. 2

3 Criminal law and HIV non-disclosure In Canada, a PHA can be prosecuted for not disclosing HIV-positive status before engaging in an activity that represents a significant risk of HIV transmission People can be prosecuted even when no sexual partner was infected Criminal law is applied to exposure and HIV transmission 3

4 Numbers Approx 70,000 people diagnosed with HIV in Canada since More than 100 criminal prosecutions for HIV transmission and exposure from 1989 to 31 December 2009 Significant increase in number of prosecutions since Average approx 10 per year Most of the people who have been charged are men: 90% - Roughly one quarter of the men charged have been Black (African or Caribbean). Vast majority of charges and convictions against HIV+ men who had sex with women - Around 10 cases of HIV+ women who have had sex with men. - Around 18 cases against HIV+ MSM. The majority of charges are in Ontario: 45% 88% of the people we know were convicted have been sent to jail Mykhalovskiy, Betteridge et al The Criminalization of HIV non-disclosure in Canada: A Preliminary Analysis of Trends and Patterns. 4

5 HIV non-disclosure cases, Canada, (n=104) Mykhalovskiy, Betteridge et al The Criminalization of HIV non-disclosure in Canada: A Preliminary Analysis of Trends and Patterns. 5

6 The law The rule in R. v. Cuerrier Supreme Court of Canada (1998) - Non-disclosure transforms consensual sex into an assault when: - Non disclosure exposed an individual to a significant risk of HIV transmission - And that the individual would not have consented to sex had he/she known of his/her sexual partner s HIV status 6

7 Lack of clarity in the law: what constitutes a significant risk under criminal law? - unprotected vaginal (and anal?) sex = duty to disclose (Cuerrier) Is there a condom defence? - The Supreme Court of Canada suggested there would be no legal duty to disclose when a condom is used (Cuerrier) - Several trial courts decisions are in favour of not criminalizing people who use a condom (Edwards, Nduwayo, Agnatuk-Mercier, DC, Smith, Imona-Russel) - But this not true for all courts' decisions (Mabior Trial Court, Wright Court of Appeal) - Law is still developing 7

8 Lack of clarity in the law: what constitutes a significant risk under criminal law? - What about oral sex? - A judge agreed with a Crown Prosecutor that unprotected oral sex was low risk, and could not be an aggravated assault (Edwards) - But a PHA convicted by a jury of aggravated sexual assault for unprotected oral sex (Aziga) - In Hamilton, the Crown recently decided to stay criminal charges of aggravated sexual assault concerning unprotected oral sex (Zela) - Law is not clear 8

9 Lack of clarity in the law: what constitutes a significant risk under criminal law? What about undetectable viral load? A factor to be taken into account? Divergences among the Courts: Trial courts decisions - Mabior : No duty to disclose when undetectable viral load + use of condom contested in appeal - DC : Accused s undetectable viral load not taken into account contested in appeal Court of appeal s decision - Wright : Accused s viral load, when is known, is very relevant to the determination of criminal liability New issue: the law is still developing 9

10 Lack of clarity in the law: what constitutes a significant risk under criminal law? The Vancouver case: May 2010 A man was acquitted in British Columbia in a case involving unprotected anal sex Key findings: - The accused did not disclose his status - They had unprotected anal sex 3 times - The accused was the receptive partner - According to the Crown s expert evidence there was no significant risk of HIV transmission in the particular circumstances of the case Not every unethical act invokes the heavy hand of the criminal law (Justice Lauri Ann Fenlon) 10

11 Some examples of community responses Some activists and advocates are working together to restrict the expansive use of criminal law Canadian HIV/AIDS Legal Network actions: - Tracking and analysing criminal cases - Providing information and building capacity (among PHAs, ASOs, Public Health, judges, lawyers) - Advocacy and intervention before Courts in strategic cases The Ontario working group actions: - Developed of a position statement et Media talking points - Engages a campaign to call for prosecutorial guidelines in Ontario in case of HIV non disclosure 11

12 Call for prosecutorial guidelines in Ontario in cases of alleged HIV non-disclosure The Ontario working group on criminal law and HIV exposure is calling for prosecutorial guidelines in cases of HIV non-disclosure in Ontario We are calling on Ontario s Attorney General to immediately undertake a process to develop prosecutorial guidelines for cases involving allegations of HIV non-disclosure. Prosecutorial guidelines can influence police and Crown Counsel decisions about whether or not to charge or prosecute cases, and how cases are prosecuted. 12

13 For more information Canadian HIV/AIDS Legal Network HALCO Cocq-sida Ontario working group: 13

14 Thank you for your attention! Thank you to - Stéphanie Claivaz- Loranger from COCQ-sida - Ryan Peck from HALCO - Ross Harvey from BCPWA - Glenn Betteridge - Eric Mykhalovskiy for their contribution to this presentation Cecile Kazatchkine Policy Analyst Canadian HIV/AIDS Legal Network Phone : (poste 231) ckazatchkine@aidslaw.ca 14

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