On October 21, CAAN co-hosted a consultation on limiting HIV criminalization in partnership with the HIV Legal Network and HALCO (HIV & AIDS Legal Clinic of Ontario). This consultation was part of the larger cross-Canada consultation by the Canadian Coalition to Reform HIV Criminalization (CCRHC) that ran over the last two months. The CCRHC surveyed community members about two possible reforms to the Criminal Code that would limit HIV criminalization. For more information about these possible reforms, please visit CCRHC’s website. (Please note that the survey is now closed).
What did we talk about?
India Annamanthadoo (HIV Legal Network) shared background on the legal reforms proposed by CCHRC. Wider consultation began in August and continued via online surveys and live sessions. The goal of these consultations was to understand the details, risks, and benefits of the proposed changes. These discussions and the survey results will help inform the creation of a community consensus statement, which will form the basis for advocacy with the federal government to limit HIV criminalization.
Ryan Peck (HALCO) explained how, globally, Canada is one of the leading countries that criminalize people living with HIV and is one of the only countries to apply charges of aggravated sexual assault for HIV non-disclosure. The history and trends of prosecution were shared, beginning from 1989 to the present day. This background provided context for the discussion of the two possible criminal code reforms proposed by the CCHRC:
Option 1: Change the interpretation and application of existing laws that have been used to prosecute HIV-related cases
Option 2: Create a new HIV-specific offence that applies in limited circumstances and that also prevents use of other, existing offences
Trevor Stratton (CAAN) moderated an open discussion of the experiences of HIV criminalization and how these 2 options impact Indigenous communities. Some of the concerns we heard from participants were:
- “I fear that law will always target certain people, so I would want it to be harder for convictions to be made. This also requires a lot more from AASOs (Aboriginal AIDS Service Organizations) regarding knowledge translation and sharing information.”
- “As Indigenous People, we’ve been fighting all kinds of laws and criminalization, not just HIV.”
Some of the suggested solutions we heard from participants were:
- “Can you imagine if there could be a circle for IPHAs to sit as a legal arm that can address issues of HIV? Jurors don’t have the knowledge to handle these cases well.”
- “Restorative justice is an Indigenous Way of Knowing and Doing. We must consider the role of community in what happens to an incarcerated person.”
Many of the suggested solutions we discussed can be linked to the Missing and Murdered Indigenous Women and Girls’ Calls to Justice. This includes:
5.11: Expand restorative justice programs.
5.16: Create community-based and Indigenous-specific options for sentencing.
7.1: Fully recognize Indigenous practices, worldviews, culture, language, and values.
9.1: Acknowledge the impacts of colonialism, racism, bias, and discrimination.
CAAN will continue to advocate for the rights of Indigenous Peoples Living with HIV and commit to partnerships with organizations with expertise in this field, such as the HIV Legal Network and HALCO. More specifically, knowledge shared at this consultation will be used to partner with the HIV Legal Network and create a position paper on the criminalization of HIV. (CAAN membership resolution, 2018). We welcome insights of how CAAN could further support, lead, or contribute to knowledge translation of legal issues affecting Indigenous People Living with HIV and/or People Living with Hep C.
To learn more:
HIV and the Criminal Law in Canada Update (December 2018)
Responding to the Criminalization of HIV Transmission or Exposure: Resources for lawyers and advocates (2020)
The HIV Legal Network, HALCO, and CAAN were part of the coalition that intervened at the Supreme Court in 2012 regarding R. v. Mabior.The coalition released this statement regarding the Supreme Court’s approach to HIV non-disclosure: