Beyond Disclosure: The Urgent Call to Decriminalize HIV in Canada

In an era where scientific understanding of HIV has dramatically advanced, Canada's criminal justice system continues to operate under outdated laws, sparking fervent calls for reform from human rights advocates, legal experts, and people living with HIV (PLHIV). These laws, which criminalize the non-disclosure of HIV status, are increasingly seen as unjust, unscientific, and a significant barrier to public health efforts.

At the heart of the debate is the incongruity between modern science and legal precedent.

With the advent of effective antiretroviral therapy (ART), individuals living with HIV who achieve and maintain an undetectable viral load cannot transmit the virus – a concept widely recognized as U=U (Undetectable = Untransmittable). Despite this medical consensus, Canada's legal framework often fails to account for this reality, leaving PLHIV vulnerable to prosecution even when the risk of transmission is negligible or non-existent.

The Supreme Court of Canada's 2012 rulings, while attempting to clarify the issue by establishing a 'realistic possibility of transmission' threshold, have still been criticized for their ambiguity and for placing an undue burden on individuals to prove the absence of risk.

This has led to a patchwork of interpretations across different courts and a chilling effect on PLHIV, forcing many to choose between disclosing deeply personal health information or facing potential criminal charges, regardless of actual risk.

Advocates argue that these laws disproportionately target marginalized communities, including Black people, Indigenous people, and people who use drugs, who already face systemic discrimination.

The fear of criminalization acts as a powerful deterrent to HIV testing, treatment, and open discussion, effectively undermining public health goals. Instead of fostering an environment where individuals feel safe to seek care and manage their health, the current system exacerbates stigma and drives the epidemic underground.

The push for reform is not new.

As early as 2019, the House of Commons health committee issued a report urging legislative changes to align with scientific evidence. Experts like Dr. Sean Rourke, a leading researcher, have highlighted how the laws are based on a 1989 understanding of HIV, failing to incorporate decades of scientific progress.

The focus, they argue, should shift from a punitive, criminal justice approach to a supportive, public health model that emphasizes prevention, testing, and access to treatment.

Real-life cases illustrate the human cost of these outdated laws. Individuals have faced severe criminal charges, including aggravated sexual assault, for non-disclosure, even when there was no intent to harm and no actual transmission occurred.

These prosecutions often result in significant prison sentences and a lasting criminal record, severely impacting lives and further marginalizing vulnerable populations.

Human rights organizations, backed by the latest scientific evidence, are calling for a complete overhaul of the legal system.

They advocate for legislative changes that would effectively decriminalize HIV non-disclosure when there is no realistic possibility of transmission, or when an individual's viral load is undetectable. This paradigm shift would not only reflect current medical understanding but also uphold the human rights and dignity of people living with HIV, fostering a more just and equitable society for all.