LETTERHEAD (if coming from an organization)
11 July 2012
The Honourable John Gerretsen, Attorney General
Ministry of the Attorney General
McMurtry-Scott Building
720 Bay Street, 11th Floor
Toronto, ON M7A 2S9
Dear Minister Gerretsen:
Re: Non-disclosure of HIV positive status: Crown’s position in the R v. Fand R v. M appeals at the Court of Appeal for Ontario
I are writing to you to express our utter dismay at and profound sense of betrayal by the Ministry of the Attorney General, you and your government. We are deeply concerned with the legal position taken by the Crown in two cases currently before the Court of Appeal for Ontario—R. v. F and R v. M—which were adjourned pending the Supreme Court of Canada’s (SCC) decision in two other HIV non-disclosure cases. The Crown is seeking to criminalize all people living with HIV unless they disclose their HIV status (and can prove they have done so) to all sexual partners, at all times, regardless of the HIV transmission risk associated with the sexual act.
We supported the Call for Prosecutorial Guidelines, made by the Ontario Working Group on Criminal Law and HIV Exposure (CLHE). In December 2010, then Attorney General Chris Bentley agreed to develop prosecutorial guidelines for criminal cases involving allegations of non-disclosure of sexually transmitted infections, including HIV. The Crown’s legal position makes prosecutorial guidelines largely irrelevant. It is clear that you, your Ministry and your government have rejected a measured, just and evidence-informed approach to the complex legal and social issues presented by HIV non-disclosure. You have failed to live up to the commitment made by your predecessor, your Ministry and your government.
The Crown’s position amounts toa witch-hunt against all people living with HIV in Ontario. Indeed, that attack is well underway. There are numerous cases in which Ontario Crown prosecutors, contrary to the law established by the SCC, are pursuing convictions against people whose conduct posed no significant risk of HIV transmission. Crown prosecutors are even pursuing cases where there was no risk at all. This injustice must end.
Your position is a complete rejection of current scientific research that unequivocally demonstrates that HIV is a very difficult infection to transmit. Furthermore, it is a total repudiation of international expert guidance on this issue from UNAIDS and the Global Commission on HIV and the Law. And it reinforces Canada’s shameful, ever-expanding reputation as an international pariah committed to placing the criminal law at the centre of the state’s response to HIV prevention.
The Crown’s all-or-nothing position is especially troubling given the context, realities, and complexities involved in HIV non-disclosure prosecutions. Systemic and institutional racism in Ontario’s criminal justice system have been well documented. Yet prosecutions of people living with HIV from African, Caribbean and Black communities, many of whom are immigrants and refugees, have been all-too-common and resulted in sensational and racist media coverage. Prosecutions against women and gay men living with HIV have been steadily increasing. Yet a growing number of feminist commentators are decrying the troubling distortion of sexual assault law in HIV non-disclosure cases, even as sexual violence against women continues to be epidemic and is often poorly handled by the criminal justice system. Finally, the increase in prosecution of gay men is not surprising given the historic, and ongoing, mistreatment of the LGBTQ communities in the criminal justice system.
We call on you, as Minister, to immediately meet with representatives from CLHE and to withdraw the absolutist position put forward by the Crown. We further call on you to instruct the Crown to take a position before the courts grounded in the significant risk test and an appreciation of our current scientific understanding of HIV infection and HIV transmission.
Sincerely,
cc:
The Hon. Dalton McGuinty, Premier of Ontario
The Hon.Deb Matthews, Minister of Health and Long-Term Care
The Hon. Chris Bentley, Minister of Energy
The Hon. Glen Murray, Minister of Training, Colleges and Universities
The Hon. Kathleen Wynne, Minister of Aboriginal Affairs and Minister of
Municipal Affairs and Housing
The Hon. Laurel Broten, Minister of Education and Minister Responsible
for Women’s Issues
The Honourable Eric Hoskins, Minister of Children and Youth Services
Dr. Arlene King, Chief Medical Office for Health for Ontario
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