The Canadian Justice Minister instructed federal prosecutors in the North not to prosecute anyone more so as not to disclose their HIV status as a sexual partner when there is no risk of transmitting the virus.
The new Crown Attorneys' marching order is aimed at complying with criminal law with scientific evidence of the virus and the conditions under which it can not be disseminated. The wording of the directive states that there is no public interest in prosecuting persecution for non-disclosure of HIV for behavior that medical science demonstrates does not pose a risk of serious harm to others.
The new rules that come into force on Saturday will not be transferred to provinces – only in the territories where federal prosecutors have jurisdiction.
It does not seem that the federal government is planning to force the provinces to follow the case instead of hoping that the change in policy will act as an example to them.
Marginalized populations are disproportionately affected
Human immunodeficiency virus may eventually lead to AIDS, the syndrome that stops the immune system and makes a person very vulnerable to bacteria and viruses. HIV can not be cured, but can often be suppressed to such an extent that the virus is virtually undetectable.
The directive publishes on Friday afternoon in its preamble that people from marginalized populations – such as indigenous people, gays and blacks – are more likely to have HIV and are disproportionately affected by disclosure laws.
The Supreme Court of Canada ruled that consent to sexual activity may be void if the accused fails to reveal or deceive his or her HIV status. The crown must prove that the partner would not agree to have sex if he or she knew about the status of the person.
Most often, this leads to an accusation of aggravation of sexual abuse if the sexual contact either delivers the virus to the complainant or puts the victim alleged to have a significant risk of contracting with it.
Justice Minister Jody Wilson-Reybold's directive says that cases should not be taken where there is a depressed viral load – defined as less than 200 copies of the virus per milliliter of blood. In principle, there should be no prosecution of a crown attorney if a condom is used or partners who deal only with oral sex.
And when Crown's attorneys continue to deal with lawsuits, Wilson-Raibau wants her attorneys to make lighter accusations when appropriate, especially if they have "lower levels of guilt."
The directive does not apply to cases before the courts – only for those who start this weekend at the Crown Prosecutor's Office.