TORONTO — The Liberals hope to address the criminalization of HIV non-disclosure if re-elected in the fall, the federal justice minister said Friday as advocacy groups pushed the government to make changes to the law.
HIV non-disclosure has led to assault or sexual assault charges because it's been found to invalidate a partner's consent — the rationale being that if someone knew a person had HIV, they wouldn't consent to sexual activity because of the risk of transmission.
Advocates say the justice system lags behind the science on the issue, with a growing body of evidence saying there is no realistic possibility of transmission of HIV if a person is on antiretroviral therapy and has had a suppressed viral load for six months.
A parliamentary committee has been examining the issue for months and is expected to release a report with recommendations next week. Justice Minister David Lametti said the Liberals want to address the matter but won't have time to act before the October election.
"Our legislative runway is over," Lametti said after speaking at a symposium on HIV criminalization in Toronto. "The house will rise at some point, perhaps as early as next week ... I hope that our government will be re-elected so we'll be able to hit the ground running."
Lametti said the Liberals, if returned to power, could explore options that include drafting a criminal law provision that targets intentional transmission of HIV.
"We need to look at the criminal law ... and look at what's within our jurisdiction ... and trying to achieve that balance, as a number of people in the room have stated, in trying to draft a criminal law provision which targets only intent and not criminalize everything else," he said.
Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network, said he's concerned that the timing of the committee's report — so close to the federal election — could mean its recommendations get lost.
"It's unfortunate that it's taken this long, several-year process since the last election, to get to the point of actually having a committee report with some recommendations that could then inform possible legislation," he said. "The issue, however, isn't going to go away for people living with HIV ... we will continue to press for Criminal Code reform."
In 2017, then-federal justice minister Jody Wilson-Raybould said she would examine how the criminal justice system dealt with people who do not disclose their HIV status to sexual partners.
Late last year, the government instructed federal prosecutors in the North that they should no longer prosecute anyone for not disclosing their HIV status to a sex partner where there is no risk of transmitting the virus. The rules apply only in the territories where federal prosecutors have jurisdiction.
Elliott said he's hopeful that the Justice and Human Rights committee's report will include a recommendation to establish a consistent policy for prosecutors at the provincial level.
Agencies advocating for de-criminalization of HIV non-disclosure agree that the law needs to change and it is a public health issue, not something that should be dealt with as sexual assault, he said.
"There is just a vast overreach in the Criminal Code as it's been interpreted and applied," he said. "Parliament needs to fix that and that will remain the case after the coming election."
Shawn Jeffords, The Canadian Press