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Ontario's new position on HIV prosecutions a 'betrayal': activists

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Ontario's new position on HIV prosecutions a 'betrayal': activists

The Supreme Court will release its decision on HIV nondisclosure in the Mabior case later this year. IMAGE 1 OF 2
Crown says risk of infection should not be a factor in criminal cases
Lawyers for the province of Ontario have taken an extreme position on HIV nondisclosure, backtracking on two years of progress, activists say.
 
In a 68-page factum filed with the Ontario Court of Appeal, crown attorneys argue that HIV-positive people should face criminal charges for not disclosing their HIV status before sex — even if there is little risk of HIV transmission.
 
Their position, if adopted, would criminalize HIV-positive people who don't disclose but use condoms or who have low viral loads. It could also affect prosecutions for unprotected oral sex and other low-risk conduct. That would mean “open season on anyone who has sex,” says Tim McCaskell, a long-time AIDS activist.
 
“If people have to disclose when there's no risk, what does that mean? If I kiss someone without disclosing my HIV status, that's assault? If I shake someone's hand, that's assault?” says McCaskell. “If so, then it's simply discrimination against people who have HIV and AIDS.”
 
The factum is an abrupt about-face for the province. In February 2011, then-attorney general Chris Bentley agreed to work with a coalition of HIV organizations, known as the Ontario Working Group on Criminal Law and HIV Exposure (CLHE). Their goal was to create prosecutorial guidelines, which would have reined in prosecutions for low-risk sexual encounters.
 
The guidelines never materialized. But John Gerretsen, who replaced Bentley as attorney general in October 2011, withdrew Ontario from an HIV case heard by the Supreme Court of Canada in February 2012. It was hailed as a good-faith attempt to work with the HIV community and a sign of the province's ongoing commitment to the working group.
 
But that's all been put in jeopardy by the crown's factum, says lawyer Cécile Kazatchkine, of the Canadian HIV/AIDS Legal Network. She describes it as “an attack on people living with HIV” and a “betrayal” of the CLHE's work with the province.
 
“We are very concerned with the position the Crown has taken. It's a very radical position, and it's deeply concerning,” Kazatchkine says. “And it would make prosecutorial guidelines completely irrelevant.”
 
 
In a short, written statement, a spokesperson for the Ministry of the Attorney General said it would be inappropriate to comment on either the Supreme Court case or their factum at the Ontario Court of Appeal, since both matters are still before the court. But the ministry also said it would be suspending work on prosecutorial guidelines for the time being.
 
"It would be premature to address prosecutorial guidelines ahead of this ruling," Brendan Crawley wrote, referring to the Supreme Court decision. 
 
But the province's position — withdrawing from the Supreme Court case, then submitting its fiery factum to the Ontario Court of Appeal — is perplexing from a strategic point of view, activists say. The Ontario Court of Appeal will be bound by the decision of the Supreme Court. If the province wanted the court to drop risk analysis from these types of cases, it would have been better served arguing its case at Canada's top court.
 
So, did Ontario have a change of heart between February and now? What's more likely, McCaskell says, is that there are competing factions at the ministry.
 
When the province withdrew from the Supreme Court case, he says, the attorney general was responding to “an enormous amount of pressure. The attorney general did his job.
 
“Then, when we got this factum, it looked like the attorney general has gone into hiding,” he says. “What it looks like now is that the cowboys in the Crown attorneys' office are running the show.
 
“It's out of line with what the attorney general [Chris Bentley] said he was going to do. And it's out of line with what the Supreme Court said 20 years ago. They're making up the law as they go along.”
 
 
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Comments

yeah, right
hey Marcus, your so-called journalism is a lie and that is the result of an activist/fat kid guarding the cookie jar. btw: HIV kills (which you blatantly lied about in one of your tweets months ago). on average, people with it die 12 years sooner.
yeah, right
hey Marcus, your so-called journalism is a lie and that is the result of an activist/fat kid guarding the cookie jar. btw: HIV kills (which you blatantly lied about in one of your tweets months ago). on average, people with it die 12 years sooner.
Yes...
I saw the Cinderella comments quickly overshadowing the very serious issue of what HIV+ and Gay Men are threatened with. Brutal State Persecution! I am not in favour of persecution of any minority. I fully support Trans pursuing their rights. With that said, there is a point to be made that all resources should now be put towards ensuring that Gay Men are not, as some would suggest and I'm not going to argue, be placed in the death camps (or what are also called prisons). Historically speaking one could argue this is where we are headed with such a stupid and barbaric legal process. This is a very serious danger. Next to the Holocaust, this is the greatest threat to all LGBT2S had ever had to face in modern history. AIDS will pale in comparison. I am a little shocked at the silence of the gay community at this very real attack against them all. It is to say the least a deafening quietness, so I wonder, who are the real bigots? Or is it simply stupidity? Or perhaps, the us against them take? THAT never works. But then again, I warned the "advocates" what supporting criminalization of HIV and playing nice with the oppressors would do (and here we are) and I was dismissed then. I now send out a warning to you all, this is not to be taken lightly, you are at significant threat by this turn of events.
no cock gay sex?
Rich wrote: you may even have had sex with a trans gay man and not realized it if they didn't disclose.------ It really is amazing how formerly cock-centred gay men have apparently abandoned the penis as central to man to man sex to the point where "disclosure" is needed because genitals are not part of the gay sex. I must have been a cock hound since their cock were central to the sex I had with thousands of men back in the day (so was my cock btw). Now you're saying there is the new no cock gay sex. What an strange de-phallused world for young gay men now.
Cinderella...
... sure is one ugly step-sister. I'm not trans, but have you ever wondered why trans people would have problems with gay guys like yourself Cinderella? What do trans people have to do with criminalizing non-disclosure anyways? Sure trans people can also be arrested for non-disclosure if they're HIV+, especially if they're gay men. Some gay men are trans too, you may even have had sex with a trans gay man and not realized it if they didn't disclose. You are the most pathetic sort of a minority person, one whose a bigot towards other minorities so they can feel less so themselves. Go back to washing the floors Cinderella, no place at the ball for someone as ugly inside as you. Everyone staying in their own little identity castles attacking others helps no one, not even themselves. Seriously though and I don't mean this part as an insult, get professional help to deal with your issues instead of putting them on display. No one is perfect and everyone needs professional help to deal with their own issues/problems at some time or another. This may be your time, your comment attacking trans people came right out of nowhere. Btw trans people are lobbying themselves for their rights, they certainly aren't sitting around waiting for gay guys like yourself to do anything to help them out, they are doing it for themselves. Being an ally increases political capital, it doesn't diminish it. Though I guess if you want to cosy up to anti-trans bigots it doesn't help, but why would anyone whose suffered bigotry want to join the bigots anyways?
Caveat Emptor 2/2
The gay community also needs to realize that its political capital has always been very limited and that its political capital has become even more limited recently
and that it should use that political capital selectively to benefit the majority of mainstream gay guys than to fritter it away on silly projects such as so-called “trans rights” and so on.

Trannies are very homophobic and always demand a lot from the gay community
but never ever give anything back
so perhaps it is time for the gay community to recognize that it needs to look after itself first rather than to waste its increasingly scarce political capital and legal defense funds on inherently useless projects such as so-called “trans rights”.

If the trannies want special rights for themselves then they can lobby for them on their own and the gay community does not need to waste its time on such nonsense.

I can assure you that when they start arresting gay guys wholesale
and railroading them into jail on flimsy pretexts and imprisoning them en masse
those precious pathetic self-aggrieved and self-entitled trannies will not waste a single tear on us no matter how much we have helped them in the past.

The best use of gay political capital and legal defense resources right now
is to beat back the criminalization of HIV
and that should be the gay community’s top priority
because it will benefit the maximum number of GLB people
and be a far better use of scarce GLB political and legal resources
than wasting them on a very tiny gang of pathetic and very homophobic trannies
who will never run out of things to complain about and demand no matter what we do for them.
Caveat Emptor 1/2
It should be up to the Crown to prove that an accused person deliberately intended to hurt someone by infecting them with HIV or any other STIs
because otherwise they have no grounds to prosecute an HIV+ person criminally
for assault or intent to harm someone.

An accused person is innocent until proven guilty
and without proving intent to harm beyond reasonable doubt there can be no conviction for assault or intent to harm
so the burden of proof is on the Crown to prove that an accused HIV+ person
intended to harm others or was criminally reckless in having sex with others.

I was a pedestrian who almost got wiped out 5 years ago by an idiot
who decided to charge a red light at 120+km/hr and caused a huge traffic accident but they prosecuted him only under the Highway Traffic Act
and not under the Criminal Code.

They just took the attitude that it was easier to convict him for running a red light
than to convict him for attempted manslaughter.

Even if he had actually succeeded in killing me he still would not have been prosecuted criminally.

Likewise the justice system is notorious for going easy on drunk drivers
who hurt and kill other people.

The real reason for criminal prosecution of HIV+ guys who have sex with others
is to begin the process of recriminalizing and repathologizing homosexuality itself under the guise of supposedly protecting the public from HIV infection.

If you have sex with anyone who is not your legal spouse then you should always assume that person has some sort of STI and use safer-sex techniques religiously:- Caveat Emptor.

I notice that the legal system does not prosecute people with obvious colds and flu who travel on public transit and visit public libraries and so on and who are quite diligent in spreading those germs to other people
so basically the same legal standards for prosecution which apply to dissemination of the common cold and to influenza should also apply to HIV and other STIs.
Madness
I would argue, as I have elsewhere, that if we are to criminalize HIV non-disclosure, then it seems to me we must necessarily criminalize non-disclosure of all infections that can be life-threatening. This would include Flu, which kills more people than HIV in Canada and the US. This, of course, would be clearly absurd. In my view, only non-disclosures with clear intent to harm might qualify for prosecution. The law needs to distinguish between non-disclosure with intent to harm (very rare), and non-disclosure without intent to harm (very common). There is a difference, and the law must reflect this. The alternative is to prosecute non-disclosure of any potentially life-threatening infection. If that is the future then they better start building more prisons NOW.
The Innocent
I have a conflicted approach to the criminialization of people living with HIV/AIDS.
My straight sister and her child did not ask to be infected. She was engaged to the man that infected her, but she CHOSE to sleep with him while waiting test results without protection.
My sister doesn't see herself as a victim, but rather as someone that AFFECTED her child's life without malice by passing her illness on.
So does this mean that she should face charges? Where do we draw the line on helping/hindering people living with HIV.

Someone asked what the big deal is - in 2012. It shouldn't be. Every person who sleeps with someone takes responsiblility for what they do. It's time people owned up to that..

Let's stop the pointing fingers at people. Forget about locking them up, the person that chooses to sleep with someone without protection is JUST AS GUILTY as the person who infects them, and deep down we know this.

Trudeau said the government had no business being in the bedrooms of Canadaians, when and why did this belief change.
Collaborators, turning us all in...
Canadian HIV/AIDS Legal Network and HALCO are just 2 (of a seemingly never ending group of ASO's and advocates)who are bound and determined it seems to send all HIV+ people (especially Gay Men!) to the DEATH CAMPS. I can only look at their ACTIONS as a point of reference to see their eventual goal coming to fruition step by step, hmmn, like NAZISM. (supporting criminalization of HIV as one step, among others) Do I care what they say? No. I care what they DO! Historically they would be called collaborators.

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