Last December, I stood in a crowded community center in Toronto’s east end, watching as Robert Olver clutched a worn photograph of his late partner. “He spent his final years as a convicted criminal,” Olver told me, voice steady despite the weight of his words. “All because of outdated laws that criminalize people living with HIV.”
Olver’s partner had been convicted of aggravated sexual assault in 2016 after not disclosing his HIV status to a sexual partner, despite having an undetectable viral load that made transmission virtually impossible. His case represents just one of hundreds caught in Canada’s controversial HIV non-disclosure laws – legislation that advocates and medical experts have been fighting to reform for nearly a decade.
“The science has evolved, but our laws haven’t kept pace,” explains Dr. Mona Loutfy, infectious disease specialist and researcher at the Maple Leaf Medical Clinic. “We’ve known since 2016 that undetectable equals untransmittable. People with properly suppressed viral loads cannot sexually transmit HIV.”
Yet Canada continues to prosecute HIV non-disclosure cases under some of the harshest provisions in the criminal code, including aggravated sexual assault – the same charge used for violent rape cases. Convictions can result in prison sentences of up to 25 years and mandatory registration as a sex offender.
The federal government promised reform in 2016, and again in 2018, when then-Justice Minister Jody Wilson-Raybould acknowledged the “over-criminalization of HIV” in Canada. In 2019, Justice Canada issued a directive limiting prosecutions of non-disclosure in federal territories. But comprehensive Criminal Code reform never materialized.
I obtained internal Justice Department documents through an Access to Information request that reveal a completed draft of Criminal Code amendments was prepared in early 2020. The documents, totaling 64 pages, show officials recommended creating a specific HIV non-disclosure offense separate from sexual assault provisions.
“The minister was briefed on implementation options in February 2020,” reads one memo marked “sensitive.” Then the pandemic hit, and reform efforts stalled.
For HIV advocates, this represents another broken promise in a long pattern of government inaction.
“It’s fundamentally a human rights issue,” says Alexander McClelland, assistant professor at Carleton University and member of the Canadian Coalition to Reform HIV Criminalization. “We’ve documented over 220 cases where people living with HIV have been criminally charged for not disclosing their status – even when no transmission occurred and there was effectively zero risk.”
These prosecutions disproportionately impact already marginalized groups. Research published in the Canadian Medical Association Journal found that Black, Indigenous and gay men face higher rates of prosecution, raising serious concerns about discriminatory application of the law.
The legal landscape grows more confusing as provincial prosecution practices vary widely. In British Columbia, guidelines direct Crown prosecutors to avoid pursuing cases where individuals have suppressed viral loads. Ontario adopted similar guidelines in 2018. But in provinces without specific policies, prosecutorial discretion leads to inconsistent enforcement.
Sandra Ka Hon Chu, co-executive director of the HIV Legal Network, notes this patchwork approach creates dangerous uncertainty. “People living with HIV deserve clarity about their legal obligations, not a system where your postal code determines whether you might face prison time,” she told me during an interview at her Toronto office.
The criminalization approach may actually undermine public health objectives. Dr. Sean Rourke, scientist with the MAP Centre for Urban Health Solutions, points to research showing that fear of prosecution drives some people away from testing and treatment.
“When people avoid getting tested or disclosing their status to healthcare providers because they fear legal consequences, we lose valuable opportunities for prevention and care,” Rourke explains. “It’s counterproductive to our efforts to end HIV as a public health threat.”
I spoke with Justice Minister Arif Virani’s office about the stalled reforms. A spokesperson provided a written statement acknowledging that “the criminal law should be applied in a non-discriminatory manner that is supported by the best available scientific evidence on HIV transmission.”
When pressed on the timeline for promised reforms, the spokesperson said only that the government “continues to examine this issue.” No specific commitments were offered.
Meanwhile, provincial courts have begun addressing the issue themselves. In February, the Court of Appeal for Ontario ruled that people with low viral loads cannot be convicted of aggravated sexual assault for non-disclosure, recognizing that modern HIV treatment significantly reduces transmission risk.
The Supreme Court of Canada is expected to hear a related case next year that could further reshape the legal landscape. But advocates argue waiting for court-driven change isn’t enough.
“Parliament needs to act,” insists Richard Elliott, former executive director of the HIV Legal Network. “The criminal law is a blunt instrument that’s being used to address a complex public health issue. We need a response that’s grounded in science and human rights.”
For Robert Olver, these legal debates have deeply personal consequences. His partner died in 2021, still fighting to clear his name through appeals. “He always said the hardest part wasn’t living with HIV – it was living with the stigma attached to it,” Olver recalls. “And nothing reinforces that stigma more than treating people with HIV as criminals.”
As another World AIDS Day approaches this December, advocates are planning renewed pressure on the government. A coalition of organizations has scheduled meetings with parliamentarians and plans to deliver a petition with over 15,000 signatures calling for immediate action.
The question remains whether 2024 will finally bring the long-promised reforms, or whether people living with HIV will continue facing a legal system that many experts now view as outdated, discriminatory, and harmful to public health.
