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Crown applies to intervene in HIV criminalization case

Crown applies to intervene in HIV criminalization case

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A 'kick in the face' for those working on the issue, say activists
Ontario’s attorney general has applied to intervene in a Supreme Court of Canada decision that activists say could make it easier for courts to convict HIV-positive Canadians who don’t disclose their status to sexual partners.
 
In a document submitted on Sept 9, the attorney general’s office noted there was “uncertainty and unfairness” in current laws. 
 
It is calling for a consent-based framework rather than the current legal approach, which has been applied unevenly and has allowed judges to convict HIV-positive Canadians even when they haven’t passed on the virus.
 
“This is a kick in the face for people working on this issue,” says Tim McCaskell, a member of the AIDS Action Now steering committee. “This basically makes disclosure a requirement for any kind of interaction. As we know from Bill Clinton, it’s difficult to know what’s sex and what’s not. If we give someone a peck on the cheek, is it sex?”
 
McCaskell is frustrated with Ontario Attorney General Chris Bentley, who last year told Xtra he would consult members of the community about creating prosecutorial guidelines to ensure less confusion in the courts.
 
In several instances, people have been charged with assault or aggravated assault for spitting or scratching someone, while others have been charged with attempted murder because they did not disclose their HIV status before a sexual encounter, even when a condom was used. 
 
“This goes in the completely opposite direction,” says McCaskell of the request to intervene in two cases from Courts of Appeal in Manitoba and Quebec, which will be appealed at the Supreme Court. “This would mean that if significant risk was no longer a criterion, then any HIV person who didn’t disclose in almost any circumstances could be prosecuted.”
 
Current Canadian law around HIV criminalization dates back to the 1998 Supreme Court Cuerrier decision, which ruled that knowingly exposing a sexual partner to HIV amounts to aggravated assault. This means people living with HIV have a legal duty to disclose if they could expose a partner to a significant risk of transmission.
 
However, prosecutorial guidelines to define what constitutes a significant risk have never been formalized, which has led to unfairness, something Bentley's office recognized in the application.
 
A 2010 decision in the Manitoba Court of Appeal acquitted an HIV-positive man for sexual encounters in which a condom was used, or when a condom was not used but he had an undetectable viral load. The Court found neither was a “significant risk.”
 
Similarly, a Quebec Court of Appeal acquitted an HIV-positive woman who had sexual intercourse on one occasion without disclosing her status. Neither decision is binding in the rest of Canada and prosecutors in both cases applied for an appeal to the Supreme Court.
 
Bentley's office has applied to intervene in these cases, asking to remove the criterion of “significant risk.”
 
It stated in its application “the issues at the heart of these appeals are very important to the administration of justice.
 
“The task for the Court in these cases will be to devise a workable test that provides clarity, protects the public as best as possible and promotes certainty about the meaning of consent to sexual activity.”
 
The application notes that Ontario has a large number of criminal prosecutions and the highest number of HIV-positive people in Canada.
 
Cecile Kazatchkine, a policy analyst with the Canadian HIV/AIDS Legal Network, calls the decision to intervene in these cases a “radical move” that would lead to more HIV-positive people behind bars and have no impact on HIV prevalence rates.
 
“It would provide more clarity, but it would provide even more unfairness as well,” she says. “It could possibly amount to discrimination against people living with HIV. It means everyone living with HIV in Canada who cannot prove they disclosed their status may be at risk of going to jail, even in cases where they used reasonable precautions to protect their partner.”
 
She says Bentley has disregarded scientific advancements since the original 1998 Supreme Court decision.
 
“It is quite contradictory and doesn’t make sense,” she says.
 
Not true, says Glen Murray, Liberal MPP for Toronto Centre and a founding member of the Canadian AIDS Society.
 
“I’m very sensitive to this,” says Murray, who asked activists to have patience with the attorney general. “It’s a very complex set of decisions, a complex science, because you’re talking about levels of risk that are interpreted differently.”
 
Murray says Bentley has assured him that his office will listen to the concerns of McCaskell’s steering committee and pursue evidence-based guidelines.
 
Bentley’s office refused to comment until after the application has been reviewed.
 
“We are in a difficult situation because we are in a writ period,” says Murray. “I can’t act directly in my elected post because we’re in an election right now.”
 
But McCaskell thinks Ontario should immediately withdraw its request for intervention at the Supreme Court or intervene for a scientifically accurate assessment of significant risk.
 
Anything else, he says, is unacceptable.
 
“If you give somebody a blowjob in the park and then you get charged with sexual assault because you didn’t give the guy your medical resumé? This is bizarre, but that’s exactly what this is opening up.”
 
 
Attorney General's Application

Comments

New infections can only come from HIV+ people
So what if you've seen me before. What I say makes sense. What you say is abstract idealism that you are trying to force on an unwilling population. Your idealisms are facilitating the spread of HIV. INFORMED CHOICE -- IS THE ONLY REAL CHOICE of engaging in sex with a partner. If a choice is made to engage with someone in sex, because the HIV+ person lied or withheld their status, that is called fraud. Fraud is an indictable offence --as it should be. There is still risk associated with HIV+ sex. Even if the risk is 1 in one million, the unlucky one has a lifetime of misery. Do you want to foist onto anyone else what what happened to you? There are still new infections happening they can only come from HIV+ people. Does that not make sense to you?
TO: STOP HIV
-------One can get HIV only from someone who has HIV. Only HIV+ people can stop the spread of HIV, one way or another.--------Hmnn? The world has heard this before. I've heard this before! I KNOW YOU,I've SEEN YOU before.
Only HIV+ people can stop the spread of HIV
“Zero Detectable Is Unifectable.” Nice slogan. Are you a medical researcher with proof of that slogan and corroborated by all HIV researchers in the world? Are there people who are HIV+ who are not “Zero Detectable”? Whatever the case another slogan has more moral and legal relevance: “Informed Consent.” And just in case, if “Zero Detectable” is 1 million to one chance of “infectable,” would you take the chance of infecting another human being? Does your moral compass point to “self-centred”? Gay=2% of the population but = 61% of new infections. The infections come from somewhere. Obviously there is “INFECTABLE” happening. It is truly unfortunate that you have HIV. I know through my closest friends who are HIV+ how many ways you are suffering. But HIV has to be stopped. One can get HIV only from someone who has HIV. Only HIV+ people can stop the spread of HIV, one way or another.
Condemnation of the Criminalization of HIV
I walked into HALCO as a former client: Do you condemn the criminalization of HIV. Yes or No. I walked into my doctor: Do you condemn the criminalization of HIV. Yes or No. I walked into Pride Toronto and I asked do you condemn the criminalization of HIV. Yes or No. I walked into the 51 Precinct and I asked: Do you condemn the criminalization of HIV: Yes or No. I walked into the Metropolitan Community Church and I asked: Do you condemn the criminalization of HIV. Yes or No. More Nos than Yeses. My doctor naturally but then the medical community in Canada has not really stood up to witness to the facts. Zero detectable is unifectable. Canada is a frightening place for people with HIV to live. You need to all apply for refugee status in th USA, they will probably accept you. Most definitely because of recent history with Ontario and it's totally corrupt legal system.
Asking nicely has not stopped the infections.
GAY = 2% of the population = 61% of new HIV infections. That is ridiculous. Asking nicely has not stopped the infections. We need a new approach. The social and physical threat of jail may work better than some abstract fear of catching an invisible virus. The AIDS/HIV associations who teach the public should give more explicit instructions in their messages. Half the population does not have the intelligence to understand subtle messages. They need concrete instruction. HIV+ people should not have unprotected sex and should not allow anyone to have unprotected sex with them even if the other one is willing. People have the right to know if they are engaging in sex with someone who is HIV+ That is called informed choice.
To - Moral Obligation
Ridiculous.
Psychos preying on Idiots
GAY = 2% of the population = 61% of new HIV infections. We did this to each other. Neither the current Canadian government nor historical fascist governments did this to them. We did this to each other. When I see these figures and I hear HIV+ lobbyists whining about bruised egos, it makes me mad. The bottom line: 1. WE GET HIV FROM SOMEONE WHO HAS HIV. 2. ANYONE WHO KNOWINGLY HAS A COMMUNICABLE DISEASE HAS A MORAL OBLIGATION TO NOT SPREAD IT. 3. PRROTECT YOURSELF. HIV is no longer a death sentence but a lifelong sentence of some suffering. Still not glamourous. The HIV organizations' messages have not worked well enough. Lowered “risk” of infection means green-light to some people. There are still Psychos preying on Idiots out there. Drugs and booze lowers inhibitions and helps spread diseases. We need more help. The Government and courts must intervene with judicial sentences. Let's see if that will work in actuality not projections and conjectures. The main objective is to get rid of HIV. If we can't do it socially, if the scientists can't do it yet, we need help from the courts and Harper's new jails.
I suggest the Gay's
consider the risk they are being placed in with the conservatives new crime bill. Perhaps a history book or two might get you thinking?
2% of Population = Gay = 61% of new HIV infections
“examining what can be done to reverse the high rates of new HIV infection among Black gay and bisexual men....The epidemic continues to affect Black America disproportionately: Forty-four percent of all new infections occurred among African Americans, who make up only about 13 percent of the population. And gay and bisexual men, who make up only an estimated 2 percent of the population, accounted for 61 percent of all new HIV infections in 2009. Young Black gay and bi men -- "men who have sex with men" (MSM), in public health jargon -- ages 13 to 29 experienced the greatest increases, with infection rates skyrocketing by more than 48 percent.” ________ http://www.thebody.com/content/64066/reversing-the-alarming-hiv-increase-among-black-ga.html _____ HIV has to be stopped regardless of bruised egos!!!
Accountibilaty
For crying out loud! How much more of this progressive Ontario Liberal government can we take. They have squashed sex ed changes, fail to support GSAs in Catholic schools, Trans rights in the Human Rights code and now advance the effort to criminalise HIV. As a gay man this indicates to me, they are only slightly better than Hudak. At least Hudak won't tell me he is my friend then stab me in the back. Please attend the 519 debate tonight and demand Glen Murray defend our interests rather than the queerphobic Liberal government.

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