Jamie Sarkonak: Good on Liberals for calling off HIV decriminalization review

The answer to rising infection rates is not a looser approach to the law

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Published Dec 26, 2024  •  Last updated 6 minutes ago  •  4 minute read

A woman looks at one of the scarves tied to the Halifax Public Gardens fence placed there by the AIDS Coalition of Nova Scotia on Dec. 1, 2023. Photo by Ryan Taplin /Saltwire

There was a time when HIV was a death sentence. Nowadays, it’s a life sentence of antiretroviral medication. Which is why the Liberals, since 2016, have been thinking of softening the law on HIV non-disclosure.

That is, until the end of November, when Justice Minister Arif Virani’s office confirmed to the Star that no reforms were on the way. It’s a blow to the longtime efforts of HIV advocacy groups who have some valid concerns about the law, but it’s probably for the best.

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The law as it stands now requires people with HIV with a “realistic possibility of transmission” to disclose their status to their sexual partners. It’s a matter of giving proper consent: if a person is about to engage in potentially risky sexual behaviour, they should be aware so they can make an informed choice whether to continue. No HIV disclosure, no consent — and consentless sex is how one winds up with a sexual assault charge, and possibly an aggravated sexual assault charge.

Those with HIV do not need to tell their partners about their status, however, if they use condoms during sex and have a low or undetectable viral load. Transmission risk in those cases is low enough that disclosure isn’t required, so said the Supreme Court of Canada in 2012.

HIV advocates have insisted that the law as it stands is still unfair, and the Liberals, for a while, were willing to hear them out. The HIV Legal Network calls the status quo a “misuse of the criminal law“ and says that low-risk, HIV-positive individuals are still being unfairly prosecuted under the existing rules.

The Canadian Coalition to Reform HIV Criminalization has a list of reform asks which include a call for criminal charges to not apply to HIV-positive individuals who don’t understand how the virus is transmitted. That is, ignorance as a defence. It also wants to see HIV non-disclosure be treated as a non-sexual offence, and hopes to end the practice of deporting non-citizens with HIV-related convictions.

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Put another way, these groups are asking for fewer guardrails at a time when HIV is blazing through Canada at far greater rates than before. In Alberta, the number of new, reported annual infections once hovered at 200 to 300 per year, but shot up to 500 in 2023. Immigration and drug use are likely factors driving the increase. The same period saw a 120 per cent infection increase in Montreal, where immigration was the dominant cause. It makes sense; Canada is a good place to settle if one has a lifelong, expensive-to-treat viral infection — which is likely why at least 251 people, 15 per cent of attendees at a Montreal AIDS conference last year, claimed asylum.

The answer to all this is not a looser approach to the law.

To the disappointment of advocacy groups, decriminalization has only inched along in recent years: in 2017, Ontario prosecutors were directed to not prosecute HIV non-disclosers who are on antiretrovirals and have kept viral levels low for six months at minimum. In 2018, the feds gave a similar instruction to federal prosecutors. The next year, B.C. set a viral load threshold for prosecution. Frustration with this is understandable, as patchwork rules are often confusing to the general public.

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Ottawa began taking the temperature for further changes in 2022, with the release of the Liberals’ LGBT action plan. The feds committed to consulting the public on “limiting prosecutions of persons who fail to disclose their HIV status before otherwise consensual sexual activity.” Which wasn’t much of a commitment, but to their credit, they followed through with an online public consultation.

The consultation results, released in 2023, found that of the 980 respondents who opted in, which included individuals and organizations and other professionals, 85 per cent didn’t think HIV non-disclosure should count as a sexual assault. Fifty per cent believed that cases of HIV non-disclosure should be sanctioned by the Criminal Code only if the accused intended to transmit the virus. Similarly, 43 per cent of respondents wanted the Criminal Code to apply only to cases where HIV was actually transmitted — which would excuse reckless and dangerous instances of exposure that didn’t infect anyone new.

Some respondents — just over one-quarter, estimated the government — indicated in their written responses that they wanted to see total decriminalization of any HIV-related crime. It’s an extreme position, as it would give HIV spreaders fully aware of their infection the freedom to infect as they please, condemning unaware partners to a life of medication. Unfortunately, such people do exist, and we’re very wise to have laws that work to stop them.

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Less than one per cent were opposed to changing the existing law, primarily because the law in their view was already reasonable. Their sentiments, which were consistent with the position of Conservative MPs studying the matter in the House of Commons back in 2019, are probably much closer to that of the general population.

Peruse the comments section under any news story about Canadian cases of HIV non-disclosure and you’ll find loads of people bristling at the idea of taking more guardrails off. Indeed, they seem to want more: low viral load or not, people generally believe that they should have fair warning if they’re about to expose themselves to infection — even in cases where the odds of transmission are sliver-thin.

Now is probably not the time for change. Advocates will always want more, but in a time where HIV is on the rise, we’re best off keeping the rules as they are. For once, the Liberals made the right call.

National Post

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