Canadian Coalition to Reform HIV Criminalization
Canadian Coalition to Reform HIV Criminalization (CCRHC)
Coalition canadienne pour réformer la criminalisation du VIH (CCRCV)

Open letter to the Government of Canada on the need to reform the law on HIV non-disclosure

The Hon. David Lametti
Minister of Justice & Attorney General of Canada
284 Wellington Street
Ottawa, Canada K1A 0H8

The Hon. Jean-Yves Duclos
Minister of Health
House of Commons
Ottawa, Canada K1A 0A6

June 27, 2023

Dear Minister Lametti and Minister Duclos:

As researchers, clinicians, and experts with knowledge and experience working on HIV, we call on the Government of Canada to move forward swiftly, in consultation with the HIV sector and communities of people living with HIV, on much-needed Criminal Code reform related to HIV non-disclosure.

It is well established that the overly broad use of the criminal law against people living with HIV in cases of HIV non-disclosure is not in line with the current scientific understanding of HIV transmission. There is also ample evidence that HIV criminalization does little to achieve public heath goals and, in fact, harms people living with HIV and works at cross-purposes with HIV prevention, testing, and treatment efforts.

As the law currently stands, many people living with HIV in Canada remain at risk of criminal charges and conviction for HIV non-disclosure, even in circumstances where there is little to no possibility of transmission. We welcome the increasing recognition among some policymakers, prosecutors, and courts in Canada that people living with HIV who have a suppressed viral load cannot transmit HIV and thus should not be prosecuted. But recognition alone is not sufficient to limit the misuse of the criminal law. This point should be clarified in law across the country.

We also note with deep concern that some courts have refused to accept that practicing safer sex by using a condom or having only oral sex should preclude criminal liability. Condom use reduces the possibility of transmission from negligible (at most) to zero, as HIV cannot pass through an intact condom. Furthermore, the possibility of transmission associated with oral sex varies from none to negligible depending on the circumstances .Criminalization should not occur in cases where people take responsibility for protecting their partner by practicing safer sex and where the risk of transmission is negligible. This flies in the face of scientific evidence on HIV and public health efforts.

Consequently, we feel the need to reiterate the conclusions first stated nearly a decade ago in the Canadian consensus statement on HIV and its transmission in the context of criminal law (2014), which were subsequently reaffirmed by experts around the world in the Expert consensus statement on the science of HIV in the context of criminal law (2018). Statistically speaking, it is widely accepted that HIV is a difficult virus to transmit. Laws related to HIV should align with the overwhelming scientific and medical evidence about the possibility of HIV transmission in different circumstances, accounting for relevant factors including viral load, condom use, and other safer sex practices. In particular, we stress that criminal charges relating to HIV non-disclosure are never justified in the case of activities that pose a negligible possibility of transmission, including: oral sex; spitting or biting; anal or vaginal sex with a condom; and anal or vaginal sex without a condom while having a low or suppressed viral load. Multiple large studies have shown that if a person with HIV is taking antiretroviral therapy and has a low or suppressed viral load, the chance of transmission from oral or anal or vaginal sex without a condom is zero. Moreover, we underline that the availability of antiretroviral therapies has dramatically improved the average life expectancy of people living with HIV and helped transform HIV into a chronic manageable health condition. This, too, must be recognized by the law.

In addition to medical science evidence on HIV transmission, there is substantial social science research establishing the harms and human rights violations stemming from HIV criminalization. Research shows that HIV criminalization amplifies HIV stigma and places people living with HIV into situations where they face discrimination as well as threats of and experiences of violence and harassment.

Black, Indigenous, and gay communities have been disproportionately affected by prosecution or the threat of prosecution. Likewise, HIV criminalization compounds gender inequality for women living with HIV, exposing them to increased risk of violence, threats, and coercion. Notably, a number of studies, including in Canada, have concluded that criminalization deters people from getting tested and knowing their HIV status, as well as from accessing care and treatment, thereby hindering effective public health responses to the HIV epidemic. “Over-criminalization of HIV non-disclosure” also has the effect of fueling misinformation and stigma — as already previously recognized more than six years ago by your government — and gives the public an inaccurate and misleading impression of the actual possibility of HIV transmission. Criminalization is bad for human rights and runs counter to public health efforts to adequately and effectively respond to HIV.

As evidence continues to mount, so too does the need to act without further delay to end the harms of HIV criminalization in Canada. It is necessary to meet Canada’s commitments to the made-in-Canada and now globally accepted UN 95-95-95 by 2025 Target for the global roll out of antiretroviral therapies as the essential tool to “End AIDS as a Pandemic by 2030.” Equally important are the “social enablers” of an effective HIV response: UNAIDS’s Global AIDS Strategy 2021-2026, endorsed by Canada and all other member states at the UN General Assembly, calls on countries to eliminate punitive laws, policies, and practices that perpetuate inequalities and undermine human rights, including the criminalization of HIV. Canada can and should play a role in reaching the 2025 targets in this regard as well. Many international actors in the field of health and human rights (e.g. UNAIDS, UNDP, the UN Special Rapporteur on the Right to Health, the Global Commission on HIV and the Law, the UN Committee on the Elimination of Discrimination Against Women, and the International Commission of Jurists) have repeatedly described punitive laws, including HIV criminalization, as major barriers to HIV prevention, care, and support, and have urged that they be repealed or reformed.

We call on the Government of Canada to end the current overly broad use of the criminal law against people living with HIV in this country. We urge you to do so in accordance with the best available evidence. Finally, we call on you to meaningfully involve and consult knowledgeable experts and the communities most affected throughout the legislative drafting process.

Mona Loutfy, MD FRCPC MPH,
Scientist at the Women’s College Research Institute, Staff Physician at the Women’s College Hospital, Associate Professor at the University of Toronto (Division of Infectious Disease, Department of Medicine)

Julio SG Montaner MD FRCPC,
Executive Director and Physician in Chief at the British Columbia Centre for Excellence in HIV/AIDS, Head of the HIV/AIDS Program at St. Paul’s Hospital, Providence Care, and St. Paul’s Foundation Chair in AIDS Research and UBC-Killam Professor at the University of British Columbia (Faculty of Medicine)

Colin Hastings
Assistant Professor at the University of Waterloo (Department of Sociology and Legal Studies)

Eric Mykhalovskiy
Professor at York University (Department of Sociology)

Andrea Krüsi
Assistant Professor at the University of British Columbia (Department of Medicine) and Research Scientist at theCentre for Gender & Sexual Health Equity

Martin French
Associate Professor at Concordia University (Department of Sociology and Anthropology)

_______________________________________________________________

Susan Ackland, MD, Immunodeficiency clinic, St. Paul’s Hospital (Vancouver, BC)

Barry Adam, Distinguished University Professor Emeritus at University of Windsor (Department of Sociology and Criminology)

Mary Louise Adams, Professor at Queen’s University (Department of Sociology and School of Kinesiology and Health Studies)

Michael Adia, MSW, RSW, HIV Social Worker (Toronto, ON)

Jeffrey Aguinaldo, Associate Professor at Wilfrid Laurier University (Department of Sociology)

Jonathan Angel, Professor at the University of Ottawa (Faculty of Medicine)

Gordon Arbess, MD, CCFP, Staff Physician and Clinical Director of the HIV/AIDS Program at St. Michael’s Hospital, Faculty and Program Director for the HIV/AIDS Enhanced Skills Residency at the University of Toronto (Faculty of Medicine)

Jordan Arseneault, Coordinator (RéactHIVIH) at AIDS Community Care Montreal (Montreal, QC)

Sarah Aspinall, retired Registered Nurse (Surrey, BC)

Charlene Aubé, Director at Intervention Régionale et Information sur le Sida – Estrie (Sherbrooke, QC)

Jean Bacon, Executive Director at Ontario HIV Treatment Network (Toronto, ON)

Anna Banerji, MD, Associate Professor at the University of Toronto (Faculty of Medicine – Pediatrics, Infectious Disease, Public Health)

Jean-Guy Baril, MD, Physician at the Centre Hospitalier de l’Université de Montréal and Associate Professor at the Université de Montréal (Department of Family Medicine)

Rolando Barrios, Medical Doctor and Senior Medical Director at the B.C. Centre for Excellence in HIV/AIDS(Vancouver, BC)

Ahmed Bayoumi, MD FRCPC, Professor at the University of Toronto (Institute of Health Policy, Management and Evaluation)

Marissa Becker, Professor at the University of Manitoba (College of Medicine)

Pascal Bédard, Pharmacist at the Centre Hospitalier Universitaire Sainte-Justine (Montreal, QC)

Sylvain Beaudry, Community Worker at COCQ-SIDA (Montreal, QC)

Guillaume Bégin, Executive Director at the Comité du travail de rue d’Alma (Alma, QC)

Joanna Binch, Nurse Practitioner (Ottawa, ON)

Laura Bisaillon, Associate Professor at the University of Toronto (Department of Health and Society)

Emily Bobe, General coordinator at the Centre d’Action Sida Montréal (Montreal, QC)

Katarina Bogosavljevic, PhD Candidate at the University of Ottawa (Department of Criminology)

Geneviève Boily, Scientific Advisor

Isabelle Boucoiran, Obstetrician-Gynecologist and Associate Professor at the Université de Montréal

David Brennan, Professor at the University of Toronto (Faculty of Social Work)

Bluma Brenner, Assistant Professor at McGill University (Faculty of Medicine) and principal investigator at the Lady Davis Institute

Jason Brophy, Pediatric Infectious Diseases Physician at Children’s Hospital of Eastern Ontario and Assistant Professor at the University of Ottawa

Zabrina Brumme, Professor at Simon Fraser University (Faculty of Health Sciences)

Michelle Burke, Infectious Disease/HIV Nurse (Kingston, ON)

Amanda Butt, Research Manager at Memorial University of Newfoundland (School of Pharmacy)

Adrienne K. Chan, MD, MPH, FRCPC, Physician at the Anita Rachlis Clinic and Associate Professor at the University of Toronto (Faculty of Medicine)

Louise Charest, MD, Physician at Clinique l’Actuel (Montreal, QC)

Nicolas Chomont, Associate Professor at the Université de Montréal (Department of Microbiology)

Chad Clarke, Steering Committee Member of the Canadian Coalition to Reform HIV Criminalization (Chatham, ON)

Éric A. Cohen, Professor at the Université de Montréal (Faculty of Medicine) and Director of Human Retrovirology at the Montreal Clinical Research Institute (IRCM)

Hélène Côté, Professor at the University of British Columbia (Department of Pathology and Laboratory Medicine)

Serge Côté, Nurse at the Centre Hospitalier de l’Université de Montréal (Montreal, QC)

Ilyse Darwish, Infectious Diseases Physician (Montreal, QC)

Gregory Deans, Infectious Diseases Physician and Clinical Assistant Professor at the University of British Columbia(Faculty of Medicine)

Kora DeBeck, Associate Professor at Simon Fraser University (School of Public Policy)

Carla Doyle, PhD Candidate at McGill University (Department of Epidemiology)

Lucie Dufour, Clinical Nurse (Gatineau, QC)

Denielle Elliott, Associate Professor at York University (Departments of Anthropology and Social Science)

Olivier Ferlatte, Assistant Professor at the Université de Montréal (School of Public Health, Department of Social and Preventive Medicine)

Sarah Flicker, Professor and York Research Chair in Community-Based Participatory Research at York University(Faculty of Environmental and Urban Change)

Jorge Luis Flores, Research Assistant in Epidemiology at McGill University

Kate Frohlich, Professor at the Université de Montréal (School of Public Health, Department of Social and PreventiveMedicine)

Claude Fortin, Microbiologist-infectiologist at the Centre Hospitalier de l’Université de Montréal

Michelle Fortin, Executive Director at Options for Sexual Health (Vancouver, BC)

Richard Fung, Professor Emeritus at OCAD University (Faculty of Art)

Marilou Gagnon, Professor at the University of Victoria (School of Nursing)

Robert Gair, Pharmacist (Vancouver, BC)

Freddy Gauthier, Professor and Doctor at the General Military Hospital of Kinshasa (Camp Kokolo)

Sadie Gilker, Research Assistant (Vancouver, BC)

Daniel Grace, Associate Professor at the University of Toronto (Dalla Lana School of Public Health)

Troy Grennan, Infectious Diseases Physician (Vancouver, BC)

Charlie Guiang, MD, CCFP, FCFP; Associate Professor at the University of Toronto (Department of Family and Community Medicine)

Adrian Guta, Associate Professor at the University of Windsor (School of Social Work)

Sheliza Halani, MD, Resident Physician (Toronto, ON)

David Hall, Family Physician, B.C. Centre for Excellence in HIV/AIDS, Vancouver Coastal Health, Providence HealthCare, and Clinical Instructor at the University of British Columbia

Marianne Harris, MD, Clinical Trials Physician at the B.C. Centre for Excellence in HIV/AIDS (Vancouver, BC)

Trevor Hart, PhD, C Psych, Professor and Director of the HIV Prevention Lab at Toronto Metropolitan University(Department of Psychology)

Jennifer Hawkes, Clinical Pharmacist (Prince George, BC)

Kanna Hayashi, St. Paul’s Hospital Chair in Substance Use Research and Associate Professor at Simon Fraser University (Faculty of Health Sciences)

Sarah Hayes, Registered Dietitian at the Children’s Hospital of Eastern Ontario – Immune Deficiency (Ottawa, ON)

Amila Heendeniya, Physician and Adjunct Professor at the University of Manitoba (Department of Internal Medicine)

Karen Herland, Faculty Member at Concordia University (Montreal, QC)

Suzanne Hindmarch, Associate Professor at the University of New Brunswick (Department of Political Science)

Robert Hogg, Professor at Simon Fraser University (Faculty of Health Sciences)

Dave Holmes, Professor and University Research Chair at the University of Ottawa (Faculty of Health Sciences)

Sue Hranilovic, Primary Health Care Nurse Practitioner, (Toronto, ON)

Mariève Hurtubise, Psychologist, infectious diseases programme at the Children’s Hospital of Eastern Ontario(Ottawa, ON)

Zahra Jamal, Occupational Therapist (Toronto, ON)

Océane Jasor, Assistant Professor at Concordia University (Department of Sociology and Anthropology)

Caroline Jeon, MD, CCFP (Toronto, ON)

  1. Evin Jones, Executive Director at the Pacific AIDS Network (BC)

Stephen Juwono, MSc student at McGill University (Department of Epidemiology)

Angela Kaida, Professor at Simon Fraser University (Faculty of Health Sciences)

Rupert Kaul, Clinician Scientist at the University of Toronto (Department of Immunology)

Deborah Kelly, Professor at Memorial University of Newfoundland (School of Pharmacy)

Jennifer Kilty, Professor at the University of Ottawa (Department of Criminology)

Nicole Kimball, Registered Nurse at Positive Living Program (Saskatoon, SK)

Gary Kinsman, Professor Emeritus at Laurentian University (Department of Sociology)

Marina Klein, Professor at McGill University (Faculty of Medicine)

Rod Knight, Assistant Professor at the Université de Montréal (School of Public Health, Department of Social and Preventive Medicine)

Denise Kreutzwiser, Pharmacist (London, ON)

Nathan Lachowsky, Associate Professor at the University of Victoria (School of Public Health and Social Policy)

Vincent Roy Landry, Executive Director at the Centre des R.O.S.É.S. de l’Abitibi-Témiscamingue (Rouyn-Noranda, QC)

Stéphanie Laporte, Coordinator at the National Mentorship Program on HIV and Hepatitis (Montreal, QC)

Darren Lauscher, PLWH and Community Researcher (Vancouver, BC)

Elizabeth Lavoie, Nurse Practitioner at Byward Family Health Team (Ottawa, ON)

Annie Lemay, MD, Physician at Clinique l’Actuel and Centre de santé Tulattavk de l’Ungava (Montreal/Nunavik, QC)

Benoît Lemire, Pharmacist at McGill University Health Centre (Montreal, QC)

Mathieu Maheu-Giroux, Associate Professor and Canada Research Chair in Population Health Modeling at McGill University (Department of Epidemiology, Biostatistics, and Occupational Health)

Eli Manning, Associate Professor at Dalhousie University (School of Social Work)

Frances Maranger, PhD Student at York University (School of Gender, Sexuality and Women’s Studies)

Suzanne Marcotte, B.pharm M.Sc, Pharmacist and Clinical Researcher at Centre Hospitalier de l’Université de Montréal (Montreal, QC)

Evelyn Marquis, Registered Nurse (Ottawa, ON)

Jorge Martinez-Cajas, MD FRCPC, Physician and Assistant Professor at Queen’s University (Department of Medicine and Department of Biomedical and Molecular Sciences)

Leigh McClarty, Postdoctoral Fellow at the University of Manitoba (Institute for Global Public Health)

Alexander McClelland, Assistant Professor at Carleton University (Institute of Criminology and Criminal Justice)

Janine McCready, MD FRCPC, Physician and Lecturer at the University of Toronto (Faculty of Medicine)

Ryan McNeil, Associate Professor at Yale University (School of Medicine)

Liam Michaud, PhD Student and Researcher at York University (Socio-Legal Studies)

Ken Monteith, Executive Director at COCQ-SIDA (Montreal, QC)

Nick Mulé, PhD, Professor at York University (School of Gender, Sexuality and Women’s Studies & School of Social Work)

David A.B. Murray, Professor at York University (Department of Anthropology & School of Gender, Sexuality and Women’s Studies)

Melanie Murray, MD, PhD, FRCPC, Physician and Assistant Professor at the University of British Columbia (Department of Medicine)

Jacqueline Myers, Pharmacist (Regina, SK)

Shari Nakamura, Clinical Pharmacist (Vancouver, BC)

Viviane Namaste, Professor at Concordia University (Simone de Beauvoir Institute)

Naomi Nichols, Associate Professor and Canada Research Chair in Community-Partnered Social Justice at Trent University (Department of Sociology)

Valerie Nicholson, Community Researcher at Simon Fraser University (Vancouver, BC)

Pam Nickel, Clinical Pharmacist – HIV program (Edmonton, AB)

Folasade Olaniyan, Medical Student (Edmonton, AB)

Caitlin Olatunbosun, Pharmacist (Edmonton, AB)

Michael Orsini, Professor at the University of Ottawa (Institute of Feminist and Gender Studies & School of Political Studies)

Zoë Osborne, Community-Based Research Coordinator at Simon Fraser University (Vancouver, BC)

Tim O’Shea, Associate Professor at McMaster University (Department of Medicine)

Joanne Otis, Professor at the Université du Québec à Montréal (Department of Sexology)

James Owen, MD CCFP, Physician and Assistant Professor at the University of Toronto (Department of Family and Community Medicine)

Mike Palamarek, Sessional Assistant Professor at York University (School of Gender, Sexuality and Women’s Studies)

Sarah Partridge, MD (Ottawa, ON)

Sophie Patterson, Physician and Clinical Lecturer in Public Health at Simon Fraser University & Lancaster University(Faculty of Health Sciences)

Santiago Perez Patrigeon, Assistant Professor at Queen’s University (School of Medicine)

Peter Phillips, Physician at St. Paul’s Hospital (Division of Infectious Diseases) and Clinical Professor at the University of British Columbia (Faculty of Medicine)

Neora Pick, Infectious Diseases Physician and Clinical Professor the University of British Columbia (Faculty of Medicine)

Andrew Pinto, Family Physician and Associate Professor at the University of Toronto (Department of Family andCommunity Medicine)

Saba Poursasan, Research Coordinator (Hamilton, ON)

Keven Provencher, Primary Care Nurse Practitioner at Clinique Médigo (Gatineau, QC)

Maria Pilar Ramirez Garcia, Associate Professor at the Université de Montréal (Faculty of Nursing)

Flo Ranville, HIV Support Worker at Options for Sexual Health (Vancouver, BC)

Stanley Read MD FRCPC, Physician at the Hospital for Sick Children and Professor Emeritus at the University of Toronto (Faculty of Medicine)

Erin Ready, HIV Clinical Pharmacy Specialist at St. Paul’s Hospital Ambulatory Pharmacy (Vancouver, BC)

Linda Robinson, HIV Pharmacist (Windsor, ON)

Aestus Rogers, Registered Nurse (Toronto, ON)

Jean-Pierre Routy, Doctor at the McGill University Health Centre (Montreal, QC)

Chris Sanders, Associate Professor at Lakehead University (Faculty of Sociology)

Dana Seif, PhD student at York University (Gender, Feminist, and Women’s studies)

Tessa Senneker, Pharmacist (Kingston, ON)

Kate Shannon, Professor at the University of British Columbia (Faculty of Medicine & Centre for Gender & Sexual Health Equity)

Malika Sharma, MD FRCPC MEd, HIV/Infectious Disease Physician and Assistant Professor at the University of Toronto(Faculty of Medicine)

Naureen Siddiqui, Infection Preventionist (Toronto, ON)

Ameeta Singh, Clinical Professor at the University of Alberta (Faculty of Medicine)

Nicholas Sosulski, PharmD (Fort St. John, BC)

James Stannah, PhD Candidate at McGill University (Faculty of Epidemiology, Biostatistics and Occupational Health)

Tracey Stevenson, Registered Nurse at Kingston Health Sciences Centre (Kingston, ON)

Marcia Stirling, Registered Nurse (Hamilton, ON)

Mylène St-Pierre, Director at Bureau de lutte aux infections transmises sexuellement et par le sang (Victoriaville, QC)

Carol Strike, Professor at the University of Toronto (Dalla Lana School of Public Health)

Bonnie Sydora, Registered Nurse at Fraser Health (Surrey, BC)

Darrell Tan MD FRCPC PhD, Clinician-Scientist at St. Michael’s Hospital (Toronto, ON)

Chris Tatham, Assistant Professor at the University of Guelph (Department of Sociology and Anthropology)

Réjean Thomas, Doctor and Founder of Clinique l’Actuel (Montreal, QC)

Lee Tracy II, Registered Nurse (Toronto, ON)

Michel J. Tremblay, Deputy Vice Rector of Research, Creation, and Innovation at Université Laval

Alice Tseng, Associate Professor at the University of Toronto (Faculty of Pharmacy)

Ross Upshur, Professor at the University of Toronto (Dalla Lana School of Public Health)

Tina Ustad, Pharmacist (Vancouver, BC)

Emily van der Meulen, Professor at Toronto Metropolitan University (Department of Criminology)

Mara Waters, Infectious Diseases Resident (Toronto, ON)

Cynthia Wright, Associate Professor at York University (School of Gender, Sexuality and Women’s Studies)

Beverly Wudel, Infectious Diseases Physician (Saskatoon, SK