JUST Committee Report

New Democratic Party Dissenting Report on the Justice Committee Report on the Decriminalization of HIV Non-Disclosure in Canada

The NDP dissents from Justice Committee Report on the Decriminalization of HIV Non-Disclosure in Canada despite the fact that this is overall a good report that we would like to have been able to support without reservation. We would like to thank the many witnesses whose stories and insightful analysis laid out both the injustice resulting from the criminalization of HIV non-disclosure and the perverse public health outcomes resulting from this criminalization.  The overwhelming consensus among witnesses as outlined in the majority report was that our current policies are both a source of great injustice to individuals and, at the same time, actually make the fight to end the HIV/AIDS epidemic more difficult by discouraging people from getting tested.

The NDP voted against this report for two reasons.  First, the majority of the committee has recommended a new criminal offence on transmission of communicable diseases presumably in the effort to avoid creating an HIV specific offence in the Criminal Code.  In doing so the majority has opened the door to criminal sanctions for those with other diseases such as TB and Hepatitis C, rather than recognising that all communicable diseases including HIV are better dealt through existing public health measures.

Second, the NDP voted against the report because it departs from the consensus position endorsed by more than 170 community organizations that prosecutions for HIV non-disclosure should only take place when the behaviour in question was intentional and resulted in actual transmission of the virus.  These are the only grounds for sanctions supported by medical science.  The majority on the committee failed to recommend that criminal sanctions be limited to intentional and actual transfer of the virus.  Instead they have chosen vague language that would leave the door open to adding recklessness or negligence as other types of behaviour that might be subject to criminal sanction. 

The report evades the question of what exactly would constitute reckless or negligent behaviour in terms of HIV non-disclosure.  However, criminalization of things like reckless or negligent behaviour would add an element of moral opprobrium to the question of non-disclosure which is sure to have a disproportionate impact on marginalized people.  What might seem reckless or negligent behaviour in some contexts, might in real life situations seem behaviour necessary to protect oneself from violence or even necessary for survival.  This undoubtedly would often be the case for those in violent interpersonal relationships, those engaged in sex work, those from the intravenous drug using community and others with limited resources for self-protection

Despite our dissent, the NDP is pleased to see that the majority report has included recommendation dealing two important pillars for eradicating HIV/AIDS, for which we have been advocates:   

1) making the eradication of HIV the primary public policy goal of making amendments to remove HIV non-disclosure from the Criminal Code, though the majority report recommends removing HIV non-disclosure only from the sexual assault provisions of the Code; and

2) calling for interim action to reduce the harm resulting from criminalization of HIV non- disclosure while waiting for longer process of criminal law reform to take place. The report calls on the federal government to immediately convene a federal provincial working group with the goal of arriving at common prosecutorial directives for all provinces and territories that would limit prosecutions for HIV non-disclosure while awaiting reform of the Criminal Code.  The NDCP would go farther in specifying that in the interim prosecutions should be limited only to cases of intentional behaviour resulting in actual transmission of the virus.

The NDP is disappointed that the majority did not recommend calling for an examination of other sections of Criminal Code which inhibit public health efforts to eradicate HIV, including criminalization of sex work and possession of small amounts of scheduled drugs for personal use. New Democrats do however support the principle contained in Recommendation 4, that a mechanism should be established to review unjust convictions and criminal prosecutions which have taken place under the current provisions regarding non-disclosure of HIV.

New Democrats would also like to have seen a clearer recommendation in the majority report that the next government set up a working group to consult closely with the HIV/ AIDS community including its most marginalised members, on two possible questions. First, should

HIV non-disclosure come under the preview of the Criminal Code at all or would the fight better be left to public health measures. If HIV non-disclosure is to be removed from the reach of the Criminal Code then how best can legislative changes be drafted to achieve this goal. Second, if instead HIV non-disclosure is to remain within the purview of the Criminal Code, where should it be placed to make sure that the extreme penalties now incurred under sexual assault provisions are to be avoided and how should a new offence of HIV non-disclosure be drafted so that it is clearly limited to cases of intentional and actual transmission of the virus?

Science tells us that if we can achieve the UNAIDS goal of 90/90/90 (90% of Canadians knowing their HIV status, 90% in treatment, and 90% with a suppressed viral load) then we can beat HIV/AIDS.   New Democrats believe action to decriminalize HIV non-disclosure is an essential first step in this fight to eradicate HIV/AIDS and that we have no time to lose in making sure we take all necessary measures to win that fight.