Canada's Justice Minister is instructing federal prosecutors in the North that they should no longer prosecute anyone for failing to disclose their HIV status to a sexual partner where there is no risk of transmitting the virus.
The new order of march for Crown lawyers aims to ensure that the criminal law follows the scientific evidence about the virus and the conditions under which it can not be disclosed. The wording of the directive says there is no public interest in pursuing HIV disclosure processes "for conduct that medical science shows does not pose a risk of serious harm to others."
The new rules that come into effect on Saturday will not be transferred to the provinces – only in territories where federal prosecutors have jurisdiction.
It does not look like the federal government's plans to force provinces to follow suit, hoping instead that change in policy will work as an example for them.
Disproportionately affected marginalized populations
The human immunodeficiency virus can lead to AIDS, the syndrome that shuts off the immune system and makes the person highly vulnerable to bacteria and viruses. HIV can not be cured, but can often be suppressed to the point where the virus is virtually undetectable.
The directive released late Friday afternoon in its preamble that people from marginalized populations – such as indigenous, gay and black – are more likely to have HIV and are disproportionately affected by non-disclosure laws.
The Supreme Court of Canada has ruled that consent for sexual activity can be overturned if the person charged has not disclosed or lied about their HIV status. The Crown should prove that the partner would not have consented to have sex if he was aware of the person's status.
Most often this leads to a charge of aggravated sexual assault if the sexual contact or transmitted the virus to the complainant or put the alleged victim at significant risk of hiring him.
Jody Wilson-Raybould's guidance to prosecutors says that cases should not proceed where there is a suppressed viral load – defined as less than 200 copies of the virus per milliliter of blood. In general, a Crown attorney should not prosecute if a condom was used, or if the partners only practiced oral sex.
And where Crown lawyers insist on cases, Wilson-Raybould is urging his lawyers to pursue lighter charges when appropriate, especially if there are "lower levels of censorship."
The directive does not apply to cases before the courts – only to those who arrive at the tables of Crown Prosecutors as of this weekend.