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Ontario will limit its prosecution of HIV non-disclosure cases

The updated policy says Ontario’s Crown attorneys will not prosecute cases of HIV-positive individuals who do not disclose if they meet specific conditions including treatment, suppressed viral load and safe sex practices.

Ontario Attorney General Yasir Naqvi is shown in this Oct. 2 file photo. In a joint statement Friday from Naqvi and Health Minister Eric Hoskins, Ontario announced that Crown attorneys will no longer prosecute cases of HIV-positive individuals who don’t disclose their status to their sexual partner, where the individual has a suppressed viral load for six months.

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Ontario Attorney General Yasir Naqvi is shown in this Oct. 2 file photo. In a joint statement Friday from Naqvi and Health Minister Eric Hoskins, Ontario announced that Crown attorneys will no longer prosecute cases of HIV-positive individuals who don’t disclose their status to their sexual partner, where the individual has a suppressed viral load for six months.

The Ontario government announced Friday, World AIDS day, that Crown attorneys will no longer prosecute cases of HIV-positive individuals who don’t disclose their status to their sexual partner, where the individual has a suppressed viral load for six months.

The announcement was in direct response to the federal justice department’s report titled “Criminal Justice System’s Response to Non-Disclosure of HIV,” also released Friday, which concludes that the criminal law should generally not apply to individuals who are on HIV treatment (which suppresses their viral load and makes transmission unlikely), are not on treatment but use condoms, or engage only in oral sex. Viral load refers to the amount of HIV virus in a person’s blood.

“The realistic possibility of transmission test is likely not met in these circumstances,” the report concludes. “A person living with HIV who takes their treatment as prescribed is acting responsibly.”

Ontario has been criticized by advocates as being a world leader in unjustly prosecuting HIV-positive individuals, typically charging them with aggravated sexual assault for failing to disclose their HIV status to their sexual partner. Cases have included individuals who had a suppressed or undetectable viral load, but because they had also not used a condom, they were considered to have violated the law by failing to disclose their status.

Friday’s statement from the provincial government was issued jointly by Ontario Attorney General Yasir Naqvi and Health Minister Eric Hoskins.

“The scientific conclusions (in the federal report) reflect the growing body of evidence that shows that there is no realistic possibility of transmission of HIV if a person is on antiretroviral therapy and has maintained a suppressed viral load for six months. Ontario endorses the (Public Health Agency of Canada) scientific analysis included in the federal report,” the ministers said.

“The Supreme Court of Canada has said that the scientific understanding of risk of transmission as well as advances in medical treatment, may evolve over time, and allowed for the law to evolve accordingly. Therefore in light of this compelling science, for cases where an individual has a suppressed viral load for six months, Ontario’s Crown prosecutors will no longer be proceeding with criminal prosecutions.”

They also said that in early 2018, their ministries would establish a joint roundtable with members of the HIV/AIDS community, health officials and others to hear their views on the topic.

“We believe strongly that HIV should be considered with a public health lens, rather than a criminal justice one, wherever possible,” the ministers said. “We must continue to work towards reducing the stigma and discrimination of people living with HIV/AIDS and their families.”

While the decision to prosecute a case is a provincial responsibility, it is up to the federal government to amend the Criminal Code.

Federal justice minister Jody Wilson-Raybould said the report released by her office Friday “clearly demonstrates” that the criminal justice system must adapt to reflect the scientific progress made regarding HIV/AIDS.

“Our government is taking action to help reduce the stigmatization of persons living with HIV, including undertaking an evidence-based approach to addressing HIV non-disclosure in the criminal justice system,” she said in a statement.

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