JUST Committee Report

Conservative Party of Canada – Dissenting Report

Conservatives have concerns surrounding the proposed repeal of legislation that provides a serious punishment for the non-disclosure of HIV status.  We believe that the Directive issued by the former Minister of Justice and Attorney General regarding this matter is enough to ensure that prosecutions do not proceed when they are not in the interest of public safety.  We would encourage provinces to adopt a similar directive.

While we accept witness testimony that deliberately attempting to infect one’s partner is infrequent, it still occurs.  Victims must have recourse, and law enforcement must have tools for these situations.  Repealing criminal consequences for the deliberate, negligent or reckless attempts to spread HIV is not something that Conservatives can support.

We therefore recommend that:

1. HIV non-disclosure should be prosecuted under the Criminal Code where: (1) there is either a falsehood or failure to disclose HIV; and (2) there is a realistic possibility of transmission[1];  or (3) where actual transmission occurs.
2. HIV non-disclosure should not be prosecuted where: (1) the person was taking HIV treatment as prescribed and has maintained a suppressed viral load of less than 200 copies per ml, because there is no realistic possibility of transmission.[2]  HIV non-disclosure should generally not be prosecuted where: (1) the person was taking HIV treatment but has not achieved a suppressed viral load; (2) used a condom; (3) engaged only in oral sex; or (4) was taking treatment as prescribed, because there is likely no realistic possibility of transmission.[3] The foregoing is consistent with the November 30, 2018 Directive of the Attorney General of Canada.
3. Factors respecting when HIV non-disclosure should be prosecuted should be modified as advances are made in science and medical treatment having regard for the standard of a realistic possibility of transmission.
4. The Attorney General of Canada should work with provincial Attorneys’ General to develop a common prosecutorial directive for HIV non-disclosure consistent with the November 30, 2018 Directive.