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THE HIV LEGAL NETWORK AND HALCO DISAPPOINTED BY
R. v. SHARMA SUPREME COURT DECISION
The following can be attributed to the HIV Legal Network and the HIV & AIDS Legal Clinic Ontario (HALCO).
November 4, 2022 — Toronto, ON —The Supreme Court of Canada today released a decision in R v. Sharma, a case that considers the constitutionality of Criminal Code provisions that make conditional sentences (also known as house arrest) unavailable for certain types of offences. Ms. Sharma, an Indigenous woman convicted of a drug trafficking offence, argued that the provisions violated her rights to liberty and equality under the Charter. A 5-4 majority of the Court ruled that the conditional sentence restrictions were constitutional. We are disappointed by this decision, as it upholds the overly broad imposition of prison sentences for the least serious criminal conduct and creates new barriers to enforcing equality rights.
The HIV Legal Network and HALCO jointly intervened both at the Ontario Court of Appeal and the Supreme Court of Canada. We did so to highlight how conditional sentence restrictions deny the human rights of people living with HIV who are convicted of aggravated sexual assault. In Canada, people living with HIV can still be charged, prosecuted, and are disproportionately convicted for not disclosing their HIV-positive status to a sexual partner, even if there was no realistic possibility of transmission and indeed no transmission occurred. The conditional sentence restrictions dealt with in Sharma apply to aggravated sexual assault because it carries a maximum sentence of life imprisonment — meaning a conditional sentence remains unavailable to people convicted of aggravated sexual assault for HIV non-disclosure.
In our intervention, the HIV Legal Network and HALCO reviewed HIV non-disclosure case law to show that the conditional sentence restrictions cast too wide a net. Many of the offences covered by the conditional sentence restrictions capture conduct that falls along a spectrum of seriousness. We argued that the law is overbroad when applied to non-disclosure cases, especially when HIV is not transmitted, when there is no intent to transmit HIV, and/or there is zero or negligible risk of HIV transmission. The ultimate effect of this overreach of the law is more prison sentences for the least serious HIV non-disclosure offences.
We also know that Indigenous, Black, and 2SLGBTQ+ people are disproportionately affected by the criminalization of HIV non-disclosure. The majority’s decision makes it more difficult for a sentencing judge to craft a fit sentence for a particular person that takes into account the circumstances of the offence, systemic prejudice, and difficult life circumstances.
The criminalization of people living with HIV in Canada is an ongoing and pressing issue; Canada has historically been a world leader in such prosecutions. In fact, more than 100 organizations across Canada have now signed onto the second Community Consensus Statement calling for law reform in this country. The Government of Canada has also recognized that “the over-criminalization of HIV non-disclosure discourages many individuals from being tested and seeking treatment, and further stigmatizes those living with HIV or AIDS,” and now has an open, virtual consultation on this urgent issue. Moreover, the Truth and Reconciliation Commission of Canada has called on the federal government to amend the Criminal Code to allow judges to depart from restrictions on the use of conditional sentences.
Robin Nobleman, counsel for the HIV Legal Network and HALCO, notes “Today’s decision makes law reform on the issue of HIV non-disclosure all the more urgent, to address both the criminalization of people living with HIV and the over-incarceration of Indigenous people, Black people, and other members of marginalized communities.”
Sandra Ka Hon Chu, co-executive director of the HIV Legal Network, adds: “It’s now even more pressing for Parliament to pass Bill C-5, which would repeal the provisions challenged in this case and allow for a fairer and more appropriate use of conditional sentences. Otherwise, we will continue to contend with the shameful reality of gross overrepresentation of Black people, Indigenous people, and people who use drugs in prison.”
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About the HIV Legal Network
The HIV Legal Network (www.hivlegalnetwork.ca), formerly the Canadian HIV/AIDS Legal Network, promotes the human rights of people living with, at risk of, or affected by HIV or AIDS, through research and analysis, litigation and other advocacy, public education, and community mobilization.
The HIV & AIDS Legal Clinic Ontario (HALCO) (www.halco.org) is a community-based legal clinic that provides free legal services for people living with HIV or AIDS in Ontario.
Sandra Ka Hon Chu, Co-executive director, HIV Legal Network
Robin Nobleman, Staff lawyer, HALCO
(416) 340-7790 ext. 4043