Advocates have demanded change for decades. Canada\u2019s government says there\u2019s no path forward for legal reform <\/p>\n\n\n\n
Since 1989 in Canada, more than 200 people have faced charges related to HIV non-disclosure. Here, a person can be charged for not disclosing their positive HIV status to someone they\u2019ve had sex with, even if they have no intention of harming the other person, and even if they don\u2019t transmit the infection. While activists have been fighting for nearly a decade to have these laws repealed, the federal government announced last year they would not be moving forward with efforts to decriminalize HIV non-disclosure. Xtra<\/em> has spoken with the people at the front of the fight for decriminalization\u2014and the people that these antiquated laws affect. <\/p>\n\n\n\n These are their stories.<\/p>\n\n\n\n On November 5, 2024, a phone call that didn\u2019t even last five minutes ended almost a decade of work to decriminalize HIV non-disclosure in Canada. Despite previously indicating that the law might be changed, a representative from the Justice Minister’s office told advocates that there would be no path forward to reform a set of policies that criminalize HIV non-disclosure in the country.<\/p>\n\n\n\n Never mind that for the past eight years, various promises<\/a> had been made. Since 2016, Ottawa has acknowledged the overcriminalization of HIV non-disclosure in Canada. This recognition prompted hearings, consultations and studies that advocates had hoped would lead to reforming the country\u2019s criminal code.<\/p>\n\n\n\n Despite not having HIV-specific legislation, Canada has some of the highest numbers of reported cases of HIV criminalization<\/a> in the world\u2014a burden, advocates say, that is felt disproportionately by LGBTQ2S+, Black and Indigenous peoples. <\/p>\n\n\n\n According to a 2022 report by the HIV Legal Network<\/a>, from the first prosecution in 1989 until the end of 2020 in Canada, 206 people faced charges related to HIV non-disclosure in 224 separate cases. Of those cases, only the outcomes of 187 cases were known: 70 percent ended in convictions, and 83 of those convictions resulted from a guilty plea, rather than a guilty verdict following trial. <\/p>\n\n\n\n Although HIV non-disclosure prosecutions affect people of all genders in Canada, 89 percent of people charged are men, and nine percent are women. Of all prosecutions, an estimated 22 percent were Black men. Of the women charged, 33 percent were Indigenous.<\/p>\n\n\n\n On the day of the government\u2019s phone call in November, Andr\u00e9 Capretti picked up the call on behalf of the Canadian Coalition to Reform HIV Criminalization<\/a> (CCRHC), an organization founded in 2016 that calls on the federal government to engage in legal reform and limit HIV criminalization.<\/p>\n\n\n\n \u201cIt was, of course, very frustrating to hear. It felt like we had been taken for a ride and our time was wasted,\u201d he says. <\/p>\n\n\n\n Capretti, who\u2019s also a policy analyst and a lawyer at the HIV Legal Network<\/a>, says that, at the time, he hadn\u2019t been feeling optimistic, given the delays he and his fellow advocates had experienced while awaiting the federal government\u2019s answer. In a way, he says, the phone call was a form of closure. However, he also felt frustrated\u2014as an advocate but also on behalf of the people who are in the crosshairs of the criminalization of HIV non-disclosure in Canada.<\/p>\n\n\n\n \u201cThis is their everyday lived realities, and these are the risks that they face when they are in intimate relationships or choose to engage in sexual encounters with people,\u201d he says. <\/p>\n\n\n\n \u201cIf they\u2019re frustrated, disappointed or feel let down, that\u2019s all completely valid.\u201d<\/p>\n\n\n\n Tammy Jones still remembers the afternoon in July 2007 when she was arrested. (Xtra has given her a pseudonym to protect her privacy.) <\/em>She was doing her chores and affirmations at a recovery home in Abbotsford, B.C., when she heard a knock at the door. <\/p>\n\n\n\n \u201cTammy Jones?\u201d a police officer asked.<\/p>\n\n\n\n \u201cYeah,\u201d Jones answered.<\/p>\n\n\n\n \u201cWe have a warrant for your arrest.\u201d<\/p>\n\n\n\n The police didn\u2019t explain what crime she\u2019d committed. Jones thought to herself: Was it drug-related? Prostitution? <\/em>Before going to the recovery house, Jones had worked as a sex worker in Vancouver and had been battling drug addiction.<\/p>\n\n\n\n Months before her arrest, a man with whom she\u2019d had a relationship was diagnosed as HIV-positive. He confronted her and blamed her for transmitting the virus to him. At the time this ex-partner was diagnosed, Jones had been living with HIV for six years. She was on medication to treat her HIV, and sexual contact with him had always involved the use of condoms\u2014her partner, she said, was aware of her positive status. But then, one night, Jones alleges, her ex-partner assaulted her while she was sleeping. He didn\u2019t use a condom.<\/p>\n\n\n\n On the day of her arrest, Jones was driven about an hour away to Vancouver. When she arrived at the police station, she heard the cops saying: \u201cShe\u2019s a sex offender.\u201d She was confused by this remark initially, but she soon learned she was being charged with aggravated sexual assault for HIV non-disclosure.<\/p>\n\n\n\n Jones eventually met with a lawyer, who encouraged her to take a plea deal to shorten her sentence from eight years to three. She accepted the deal and was given a statutory release after serving two and a half years. But her guilty plea also meant that her name would be added to the national sex offender registry. <\/p>\n\n\n\n Jones and I first met in Vancouver last spring. While the sun was out, a slight breeze made us shiver. Jones cried as she remembered what had happened during her arrest and eventual release. She told me the lawyer who represented her didn\u2019t put up a fight. She said she didn\u2019t understand the implications of accepting the guilty plea\u2014and didn\u2019t grasp that she\u2019d be registered as a sex offender\u2014until after she got out of prison.<\/p>\n\n\n\n As we sat on a bench in the Olympic Village neighbourhood, Jones spoke so softly that the wind sometimes overpowered her voice. Recalling that day in 2007 and its implications to her life almost two decades later, she said: \u201cThey make me out to be this scary person, and I\u2019m not that person. I\u2019m not who they think I am.\u201d<\/p>\n\n\n\n Jones said she feels there\u2019s an irony\u2014and an injustice\u2014to being labelled as a sex offender when, she said, she was sexually assaulted by a family member as a kid, as well as by the man who laid the charges that led to her arrest. She turned to alcohol and drugs to cope with the trauma of both these abuses.<\/p>\n\n\n\n For people like Jones, who\u2019s been on the sex offenders list for almost 20 years now, the brunt of the label reverberates in various aspects of her life, limiting her employment opportunities and holding her from achieving the future she dreams for herself.<\/p>\n\n\n\n Despite the severity of punishment HIV-positive Canadians can face for non-disclosure, there is no specific law that explicitly prohibits the non-disclosure of HIV status in Canada. Instead, legal precedents have developed through court decisions. Courts have relied on existing criminal offences, such as criminal negligence causing bodily harm and aggravated sexual assault, to convict people who are HIV-positive<\/a> and who have failed to inform their sexual partner of their status.<\/p>\n\n\n\n While arrests related to non-disclosure date back to 1989, it wasn\u2019t until 1998 when the Supreme Court of Canada ruled<\/a> that people must disclose their HIV status before engaging in sex with a new partner that posed a significant risk of bodily harm. Failing to do so, the court ruled, could be interpreted as a form of fraud that invalidates consent. In the court\u2019s eyes, if a person has sex without disclosing their status, that sex is seen as non-consensual, similar to coercion in sexual assault cases.<\/p>\n\n\n\n Capretti, the lawyer at the HIV Legal Network, says that before a case is seen as an act of fraud, it needs to have two elements: proof that a person lies or hides or does not disclose their status, and an element of harm. \u201cThere\u2019s physical harm from contracting HIV,\u201d Capretti says. \u201cBut the law also considers the risk of exposing someone to HIV, even if they don\u2019t get it, as harm.\u201d<\/p>\n\n\n\n According to him, the legal framework in Canada still relies on outdated understandings of how HIV is transmitted, which can lead to unjust criminalization. He says people with a suppressed viral load pose no risk of transmitting the virus, yet the law still requires disclosure in situations where the actual risk is minimal. This disconnect, he says, leads to unjust charges and perpetuates stigma against those living with HIV. <\/p>\n\n\n\n In more recent history, the 2012 Supreme Court ruling, R. v. Mabior<\/em><\/a>, <\/em>has shaped how cases of alleged HIV non-disclosure are treated in the country. In this case, a man was charged with nine counts of aggravated sexual assault based on his failure to disclose his HIV\u2011positive status to nine complainants, although none of them contracted HIV. The Supreme Court ruled in that case that people living with HIV have a legal responsibility to disclose their status if they have a \u201crealistic possibility\u201d of transmitting the virus. (According to the ruling, an HIV-positive person is not required to disclose their status if they use a condom and<\/em> have a viral load below 1,500 copies\/ml.)<\/p>\n\n\n\n This precedent has since been interpreted differently in various parts of the country, Capretti says. For example, in 2018, a directive was issued to limit charges for HIV non-disclosure<\/a> in the Northwest Territories, Nunavut and Yukon, ending the use of sexual assault laws in these cases; instead, they could be prosecuted on simple assault or other charges like criminal negligence. It also specified that individuals with a suppressed viral load (under 200 copies\/ml) should not be prosecuted for HIV exposure, as they are unlikely to transmit the virus. Capretti says using simple assault and other charges, as opposed to a sexual assault charge, is important to continue to fight stigma related to HIV. <\/p>\n\n\n\n \u201cThe whole country\u2019s legal landscape has failed to evolve alongside the scientific advances in HIV research.\u201d<\/p><\/blockquote><\/figure>\n\n\n\n In Ontario, B.C., Alberta and Quebec, prosecutors have been instructed not to charge individuals with a suppressed viral load, whether or not they used a condom. Policies differ on how long a person\u2019s viral load must be suppressed\u2014Ontario requires at least six months, while B.C., Quebec, and Alberta allow four to six months. There is no minimum time limit in the three territories, and information from other provinces is limited.<\/p>\n\n\n\n \u201cThe state of the law in Canada is inconsistent,\u201d Capretti says. \u201cIt means that someone in Ontario would have different legal obligations than someone in Manitoba, someone in New Brunswick, or someone in British Columbia.\u201d If a person travels outside their home province, they would be subject to the rules of the province in which sexual contact occurs.<\/p>\n\n\n\n On top of this, he says the type of sex a person has is significant because of the different levels of risk associated with HIV transmission. A partner who is receptive during anal sex, for example, has a higher risk of contracting HIV than someone who engages in oral sex. <\/p>\n\n\n\n \u201cThat\u2019s relevant because certain provinces have prosecutorial directives,\u201d Capretti says. He gives B.C. and the Territories as an example. There, someone who has oral sex without disclosing their status would not be prosecuted.<\/p>\n\n\n\n These policy differences mean that while the whole country\u2019s legal landscape has failed to evolve alongside the scientific advances in HIV research, some regions lag further behind than others.<\/p>\n\n\n\n While HIV prevention and treatment have greatly improved in the past decade, non-disclosure laws have not moved at the same pace. Daily antiretroviral medications now allow those who take them to lessen the amount of HIV in the blood to the point that the virus is undetectable through testing\u2014and therefore untransmittable to anyone else. When taken correctly, HIV drugs that prevent infection, such as pre-exposure prophylaxis (PrEP) and Post-Exposure Prophylaxis (PEP)<\/a>, can also help those who are exposed to HIV avoid contracting the virus. In May last year, Health Canada approved APRETUDE<\/a>, the first long-acting injectable for HIV prevention. Earlier this year, Quebec became the first province to offer injectable PrEP for free<\/a>. <\/p>\n\n\n\n These massive scientific advancements have saved lives and transformed what it means to be diagnosed with HIV today. Still, Canada\u2019s judicial system largely fails to take the usage of these drugs into account.<\/p>\n\n\n\n Capretti says this ultimately undermines public health by discouraging testing and treatment. In the recent national HIV estimates<\/a>, 65,270 Canadians are living with HIV. Of this number, it\u2019s estimated that around 10 percent don\u2019t know their status. <\/p>\n\n\n\n HIV activist Muluba Habanyama says criminalizing HIV non-disclosure impacts treatment in Canada. She warns that fear of criminal charges may lead people to avoid testing. \u201cIf you don\u2019t want to risk criminalization, you might not want to know your status.\u201d <\/p>\n\n\n\n Habanyama was born with HIV and has long fought against HIV stigma. She recalls being eight when her mother told her: \u201cYou\u2019re Black, you\u2019re female and you\u2019re living with HIV. You have to work three times [harder] to get half of what others have.\u201d <\/p>\n\n\n\n The criminalization of HIV non-disclosure, according to Habanyama, creates a dilemma where people may avoid testing to escape legal risks, which in turn harms public health efforts. \u201cIt\u2019s sad that people feel they have to pick one or the other,\u201d she says. \u201cI don\u2019t think we should be a country that promotes that.\u201d<\/p>\n\n\n\n Removing this barrier to testing is particularly urgent, as HIV is on the rise in Canada. According to the most recent data, 1,848 new infections occurred in Canada in 2022, a 15 percent increase from 2020. That means five people were infected with HIV in the country each day. <\/p>\n\n\n\n \u201cOn the one hand, the public health response is encouraging people to get tested, and then on the other hand, it\u2019s putting them in jail.\u201d<\/p><\/blockquote><\/figure>\n\n\n\n Canada has failed to meet its testing, treatment, and prevention targets. The country initially pledged to achieve a 90-90-90 target by 2020, meaning 90 percent of people living with HIV know their status, 90 percent of HIV-positive people have access to treatment and 90 percent of people receiving treatment are undetectable. However, by 2022, Canada had still not met those goals. The new target is to reach 95-95-95 by 2025<\/a>.<\/p>\n\n\n\n Brook Biggin, director of Education, Knowledge Mobilization, and Policy at the Community-Based Research Centre<\/a> (CBRC), an organization that promotes the health of people of diverse sexualities and genders, says the government\u2019s investment in reaching undiagnosed individuals is a major focus of the public health response in Canada.<\/p>\n\n\n\n \u201cOn the one hand, the public health response is encouraging people to get tested, and then on the other hand, it\u2019s putting them in jail. And so it\u2019s contradictory,\u201d he says. \u201cUntil that\u2019s resolved, I think Canada\u2019s HIV response will continue to be hobbled.\u201d<\/p>\n\n\n\n Biggin got involved in HIV awareness advocacy shortly after being diagnosed with HIV in 2011. Eight years later, he spoke in front of the Standing Committee on Justice and Human Rights<\/a> during one of its meetings to study the criminalization of HIV non-disclosure.<\/p>\n\n\n\n \u201cI do not believe that we would have the rights that we have today as queer and trans people if it weren\u2019t for people living with HIV,\u201d he says. \u201cI think it\u2019s incumbent on us as queer people who gain so much from people living with HIV over the years to return the favour.\u201d<\/p>\n\n\n\n In the 2022 report from the HIV Legal Network examining key trends and patterns of HIV criminalization in Canada, 27 percent of all the HIV non-disclosure cases from 1989 to 2020 involve gay, bisexual and other men who have sex with men (GBMSM). GBMSM are still the demographic that makes up the highest proportion of new HIV cases in the country, and according to the report, they also represent the highest risk of prosecution.<\/p>\n\n\n\n \u201cI see criminalization as unhelpful and counterproductive to all the advances that have been made in science,\u201d says Sean Hosein, science and medicine editor at CATIE<\/a>, a national organization that aims to strengthen Canada\u2019s response to HIV, hepatitis C and drug use.<\/p>\n\n\n\n Hosein was working in Toronto as a community educator when the AIDS crisis erupted. He turned his attention to HIV education and advocacy in 1986, motivated by the impact of HIV on his friends and community. Hosein watched some fall ill to the virus, and others die. \u201cI have lost people, and it still hurts,\u201d he says. \u201cI want to try and make sure that doesn\u2019t happen to other people.\u201d<\/p>\n\n\n\n Biggin would like to see more people respond this way. \u201cIt\u2019s a shame that so many years have passed and that we, as a community, have, in some ways, been relatively silent about this injustice that\u2019s facing people living with HIV,\u201d he says. <\/p>\n\n\n\n \u201cLeaders in the early days of the AIDS crisis demonstrated that when something\u2019s not right, when marginalized people within our communities are struggling, we have to respond.\u201d<\/p>\n\n\n\n On June 3, 2011, Chad Edward Clarke\u2019s family picked him up as he was released from prison in Ontario. He walked right past his teenage son. He didn\u2019t recognize him; he had grown taller since the last time he saw him almost four years prior.<\/p>\n\n\n\n \u201cDad!\u201d his son called. \u201cWhat are you doing?\u201d<\/p>\n\n\n\n Clarke had been incarcerated for more than three years after a former partner said she contracted HIV from him. He was charged with aggravated sexual assault and was put on the national sex offender registry for life.<\/p>\n\n\n\n His uncle and son had come to pick him up, and the trio drove away from the prison along the highway. As he looked around the areas they passed by, Clarke started to cry\u2014it was the first time in more than three years that he saw the wide roads from a vast window and not through the peephole of the van they used to transport him on the way to court or the hospital.<\/p>\n\n\n\n Clarke\u2019s uncle took him and his son to some of their favourite spots in Toronto, including a sandwich place he had missed and a harbour by Lake Ontario. As they stood by the water, Clarke and his son hugged. They skipped rocks. Clarke accidentally threw his ring, a Celtic knot, a homage to his Irish heritage, right into the lake.<\/p>\n\n\n\n \u201cI guess it\u2019s time for new beginnings, Dad,\u201d his son said.<\/p>\n\n\n\n He was right; it was a new beginning in Clarke\u2019s life. That year, he promised to fight so that other people would not experience what he and his family had been through.<\/p>\n\n\n\n Thirteen years later, in April 2024, Clarke spoke to me from his home in Chatham, Ontario. He told me about his family and how his home keeps him grounded. He then showed me a new tattoo he said he had just gotten the day before: a red ribbon that passes through another tattoo of a jail cell.<\/p>\n\n\n\n \u201cIt\u2019s the cell I was in,\u201d he said. \u201cThe red ribbon is the blood that runs through my body, which caused me to experience injustice in Canada.\u201d<\/p>\n\n\n\n Since 2011, Clarke has become an advocate, sharing his story throughout his journey. Six years ago, he even testified in front of the justice committee about the effects of the criminalization of HIV non-disclosure on him. He said he\u2019s seen multiple cabinet shuffles and different ministers of justice come and go, yet there\u2019s not much political will to change.<\/p>\n\n\n\n In a run-in with former minister of justice David Lametti in Ottawa, Clarke said he told the minister: \u201cI\u2019m tired of the lip service, \u2018When are you going to fix this and give me my life back?\u2019\u201d <\/p>\n\n\n\n Clarke said the minister acknowledged his remark and said only: \u201cThose are strong words, Chad.\u201d That acknowledgment did not translate into meaningful action, Clarke said, which fuelled his determination to continue fighting for justice and reform in the system.<\/p>\n\n\n\n Being on the national sex offender registry has limited Clarke\u2019s ability to find full-time employment and move through life. It\u2019s also affected his family, as well as his children\u2019s mental health. He knows sharing his story is essential, but he admits reliving it puts his mental health in a regressive state too.<\/p>\n\n\n\n \u201cHow many more times do I have to pull this scab off?\u201d he asks.<\/p>\n\n\n\n In 2019, after meeting with scientists, researchers, and legal and public health experts, the House of Commons Standing Committee on Justice and Human Rights released a report that recommended the federal government limit the use of criminal law in dealing with HIV non-disclosure. It suggested that HIV non-disclosure should not be an offence punishable by sexual assault charges. The committee also recommended that the government limit the prosecution to extreme cases where it can be shown that a person intentionally transmits HIV with malicious intent.<\/p>\n\n\n\n In October 2022, the Department of Justice launched a consultation website to solicit input on possible criminal law reforms related to HIV non-disclosure\u2014part of the federal government\u2019s first 2SLGBTQI+ Action Plan<\/a>, launched in August of that year. <\/p>\n\n\n\nThe phone call<\/h4>\n\n\n\n
The human cost of a cruel policy<\/h4>\n\n\n\n
Tricky legal ground <\/h4>\n\n\n\n
A changing scientific landscape<\/h4>\n\n\n\n
How criminalization affects LGBTQ2S+ people <\/h4>\n\n\n\n
A string of broken promises <\/h4>\n\n\n\n