HIV law reform: Chad Clarke and Colin Johnson discuss HIV decriminalization
Anger! Disappointment! Betrayal! Equivocation! Disquietude! These are the emotions that overwhelm Chad Edward Clarke on any given day, yet he remains committed to his cause: to change the way that the Canadian justice system has dealt with HIV non-disclosure through criminalization. Chad was recently awarded the first HIV is Not A Crime Leadership Award by the Canadian Coalition to Reform HIV Criminalization (CCHRC) and shares his story below with one of the coalition’s steering committee members, Colin Johnson.
Colin Johnson: Chad, I know that you’ve told your story many times before, but it needs to be heard. Let’s start with the basics: could you please introduce yourself?
Chad Clarke: My name is Chad Edward Clarke; Edward to honour my grandfather who I call Papa Jack. I was born 52 years ago in Alberta. Somewhat of a rabble-rouser, I had more than a passing familiarity with the justice system. To get away from Alberta and start a new life, I moved to Toronto and worked in the gay village at various jobs. I’m a person living with HIV, convicted for HIV non-disclosure, an activist for HIV legal reform, a member of the steering committee of the CCRHC and past member of the PASAN (Prisoners with HIV/AIDS Support Action Network) board of directors.
Colin Johnson: You’ve been busy! Back in Alberta and when you first moved to Toronto, you must have had plans for your future. Please share.
Chad Clarke: Ironically, I wanted to be in the military or become a police officer. Serve and protect, something I’m still trying to do today with my activism.
Colin Johnson: Chad, why and how did you become an advocate for HIV decriminalization?
Chad Clarke: February 12, 2009, was the worst day of my life! Prior to this day, life was good. I was working at a job I liked. I was engaged to my childhood sweetheart and was planning to propose to her two days later on Valentine’s Day (the ring was in my pocket). All this changed with a phone call from the South Simcoe Police Service informing me that there was a Canada-wide warrant for my arrest on a charge of aggravated sexual assault, one of the most serious charges in Canadian law. “My life is over!!!!!” was the thought that went through my head. The charge had been laid by an ex-girlfriend who had tested positive for HIV. The accusation was that I hadn’t disclosed my HIV status with her when we were together.
I informed the police that I would turn myself in after saying goodbye to family, with the understanding that I would be released after paying my own bail. Sitting in my car the following morning, I considered running away and even contemplated suicide but decided to see it through because the police “promised” that I would be released on bail. Instead, when I arrived at the police station I was handcuffed and arraigned. Not only was my bail denied by the justice of the peace, but my charges were read out in open court, allowing other prisoners to hear. The humiliation continued, as I was placed in a separate cell under protective custody, which is usually reserved for rapists, informants and serial killers.
I was depressed. I felt wronged, but the worst of it was not having access to my medications and the threats from other prisoners and the guards. It took PASAN advocating on my behalf for two and a half weeks for me to get my HIV medication, Atripla, which I take once a day.
Colin Johnson: Sorry for making you relive all of that and thank you for sharing. What was the outcome of your case?
Chad Clarke: The Crown wanted 10 to15 years. So, I did dead time (each day in jail was counted as two as I awaited trial) while my lawyers looked for a good judge, at least one who would be more impartial. In the end, I took a deal. I had no choice really. I pled guilty to aggravated sexual assault and was sentenced to four years. With credit for time served, I would spend another two and a half years in prison.
Colin Johnson: Once that was over, how did you feel?
Chad Clarke: But it wasn’t over. I didn’t realize that I was now on the sex offender registry for life. Actually, two registries: the National Sex Offender Registry managed by the RCMP and the Ontario registry. I’d like the Minister of Justice to explain why I am on the registry for life while a serial rapist can get five to ten years on the registry for a first offence.
Colin Johnson: Chad, what do you wish the Government of Canada understood about HIV criminalization?
Chad Clarke: That criminalization only increases the stigma already surrounding HIV. It makes people reluctant to get tested or go on treatment for fear of being ostracized within their communities.
It’s worse for some communities, like African, Caribbean and Black and Indigenous communities, all of which are disproportionately charged with HIV non-disclosure. It’s also harmful for newcomers to Canada who often aren’t aware of the laws and face deportation as a result of conviction.
I want the Government of Canada to understand that being on the sex offender registry makes it impossible to get a job, to have a life, not to mention the effect on one’s mental health. I have post-traumatic stress disorder (PTSD) now!
Colin Johnson: What do you want to see the Government of Canada do in terms of law reform?
Chad Clarke: I want to see HIV non-disclosure dealt with as a public health issue and as a human rights concern. People have been convicted even when there was no transmission or intent to transmit. That’s not justice. I only think criminal law should be involved when transmission and intent to harm are proven. I want to see people who have been convicted of HIV non-disclosure removed from the sex offender registry. I want law reform now! There have been three ministers of justice and three ministers of health since our advocacy began and still our community waits.
Colin Johnson: And for yourself?
Chad Clarke: I want my life back. I want compensation for my PTSD and for the four years I spent in jail.
Colin Johnson: Chad I’d like to thank you for sharing your time. I know it can’t be easy, but your story and the story of your activism need to be told. Last question: what does it mean to you to be receiving the first HIV is Not A Crime Leadership Award from the CCHRC?
Chad Clarke: To the Coalition: thank you! It’s an honour to know that I’m heard.
Chad Clarke has been living with HIV for more than 15 years. His personal experience of prosecution and imprisonment has transformed him into a passionate leader and activist working against the discriminatory criminalization of HIV non-disclosure. Chad’s voice has been a spark that has inspired many to get involved in the movement for change.
He has been actively involved in the HIV response as a member of the board of directors of the Canadian Positive People Network and the Prisoners HIV/AIDS Support Action Network (PASAN). In 2019, he was an invited witness and the only criminalized person invited to speak to the House of Commons on Justice and Human Rights for their study on the criminalization of HIV non-disclosure. He is a current member of the Steering Committee of the Canadian Coalition to Reform HIV Criminalization.
Colin H Johnson is a Black Gay man who has lived with HIV for the past 40 years. He has been an advocate for African, Caribbean and Black communities for decades, with a focus on Queer folk and substance use. Presently, he works as a consultant to governments, universities and community organizations on issues ranging from bloodborne infections, harm reduction, decriminalization of drugs, racism, colonization and gender identities.
He is the co-chair of the Toronto Harm Reduction Alliance (THRA) and sits on the steering committee for the Canadian Coalition to Reform HIV Criminalization (CCRHC). He recently joined the anti-black racism committee for the City of Toronto. He speaks publicly about HIV and drugs to address stigma. He graduated with a certificate in accessibilities for Ontarians with disabilities from Toronto Metropolitan University. For relaxation, he is an avid fan of Formula 1 racing and soccer.