THE HIV LEGAL NETWORK APPLAUDS R. v. NDHLOVU SUPREME COURT DECISION
For immediate release – The following can be attributed to the HIV Legal Network.
October 28, 2022 – Today the Supreme Court of Canada struck down legislation that has, since 2011, required that people convicted of aggravated sexual assault, the offence under which HIV non-disclosure is primarily charged, be added to Canada’s Sex Offender Registry, in many cases for life. We applaud this important decision.
For context: in R. v. Ndhlovu, a young man pleaded guilty to two counts of sexual assault and was sentenced to prison and automatically added to the Sex Offender Registry for life, even though he had no previous convictions and was deemed low risk to reoffend. He appealed this automatic, lifetime registration, claiming that this violated his Charter rights. The HIV Legal Network and the HIV and AIDS Legal Clinic Ontario (HALCO) intervened in the case arguing that mandatory sex offender registration is a blunt tool with a significant impact on a person’s liberty. When applied to people living with HIV — disproportionately comprising Indigenous People, Black people, and gay, bisexual, and other men who have sex with men — it exacerbates and perpetuates harmful marginalization. And today, the Supreme Court agreed with our position that such mandatory orders violate human rights.
A rich body of case law clearly demonstrates the gross disproportionality and overbreadth of Canada’s sex offender registry regime when it is applied to people convicted for HIV non-disclosure. In our intervention, we shared instances in which a sentencing judge could reasonably find registration — especially lifetime registration — to be both unnecessary for the state to guarantee against recidivism and gratuitously punitive to the person declared a sex offender.
With today’s decision, the Supreme Court of Canada recognized the “considerable” reporting requirements of the regime, which affect privacy and liberty. In their words, “The scope of the personal information registered, the frequency at which offenders are required to update their information, the ongoing monitoring by the state, and, of course, the threat of imprisonment make the conditions onerous.”
We are heartened that the Court recognized these factors in finding mandatory registration and lifetime registration overbroad and unconstitutional. This has huge implications for people living with HIV convicted for non-disclosure. Today’s decision now allows people living with HIV to seek to be removed from the registry if they can demonstrate that the regime’s impacts on their liberty bears no relation or is grossly disproportionate to the objective of the law. While we continue to wait for HIV non-disclosure to be removed from the reach of the laws of sexual assault, today’s decision is an important step towards ensuring the rights and dignity of all people living with HIV in Canada.
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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.
Janet Butler-McPhee, Co-Executive Director
HIV Legal Network
Telephone: +1 647-295-0861