Canada has long been among the global “hotspots” for prosecuting people accused of HIV non-disclosure, exposure, or transmission of HIV. As of the end of 2020, there have been at least 224 confirmed prosecutions. Most cases have not involved any allegation that HIV was transmitted or that the accused person had any intent to transmit it. Bound up with judgments about “immoral” sexual behaviour, the criminalization of HIV non-disclosure is yet another example in Canada’s long history of unhelpful and ineffective measures of punishment and enforcement in response to communicable diseases, targeting poor and racialized communities. The broad use of the criminal law in relation to HIV has been repeatedly recognized as a concern for many reasons, not only by civil society organizations, but also increasingly by policymakers in Canada. There is growing momentum for change, including through necessary reforms to the federal Criminal Code.
This brief was developed out of concern that, in the process of legislatively limiting HIV criminalization, lawmakers could end up expanding the criminal law to other communicable diseases. These discussions now take place against the backdrop of heightened concern about infectious diseases, in particular because of the ongoing COVID pandemic. This context could lead some policymakers to suggest expansion of the criminal law in some respects, albeit for a range of reasons. Such an approach would be ill-advised.
This briefing paper is intended to be use of to both lawmakers and advocates in ensuring careful, focused legislative reforms to address HIV criminalization. To that end, it:
- summarizes the current use of the criminal law in Canada in relation to HIV, the harms this causes to human rights and
public health, and efforts to limit such criminalization, including through changes to the Criminal Code;
- discusses key punitive aspects of the legal responses to COVID and some concerns they raise, and draws some lessons from this recent experience; and
- outlines why and how legislators should act to legislatively limit the current unscientific and discriminatory criminalization of HIV (and certain other STIs) in Canada, without expanding the law to criminalize other infectious diseases.