HIV criminalization and the Canadian government’s failed law reform project: Another. Incredible. Disappointment. Surprise!

The Government of Canada has broken its promise to reform the laws that criminalize people living with HIV. In November 2024, the Federal Justice Minister’s office informed the Canadian Coalition to Reform HIV Criminalization (CCRHC) that the federal government’s long-promised initiative addressing the “overcriminalization” (their term) of HIV was not going to move forward. This announcement came after almost a decade of difficult work on the part of the HIV community. Blood, sweat and tears and some lives were lost while we worked on developing a workable consensus statement that would satisfy a majority of Parliament.

The government squandered time, money, people’s energy and people’s lives. By conducting a public consultation on “reforming the criminal law regarding HIV non-disclosure” only to appear like they were doing something, when in fact they weren’t, the government failed to address the harms associated with stigma, discrimination and criminalization! It has failed to address the way our current Criminal Code harms people and communities affected by HIV. “Silence = Death” is an iconic slogan in the history of AIDS activism and we can not be silent on our incredible disappointment with the government’s inaction.

A backdrop of struggle

Back in July of 2024, I sat down with fellow CCRHC steering committee member Colin Johnson to discuss HIV criminalization and to urge the government to act. Our CATIE Blog article, entitled “HIV law reform”, began by listing some of the emotions that I was feeling at the time: “Anger! Disappointment! Betrayal!” I still feel these emotions as I write this follow-up blog post.

I feel like I’m playing a game of chess with this government and once again we’re locked in a stalemate. Our current feelings of disappointment are experienced against the backdrop of 44 years of struggle.

While there have been notable improvements in Canada for people living with HIV/AIDS, for example in antiretroviral medicines, in some respects we are backsliding. According to the Public Health Agency of Canada, we saw 2,434 new HIV diagnoses in 2023, a 35.2% increase from the previous year.

Consultation games

In the face of rising HIV cases, it makes sense to ask how the government is funding the HIV response. Short answer: it’s not funding it enough.

In 2003, more than 20 years ago, the House of Commons Standing Committee on Health recommended that $100 million per year be allocated to support the HIV response in Canada. While funding did increase, it fell short of this recommendation. The government promised to spend $84.4 million annually as of 2008, but in reality, this figure has been frozen at about $73 million. This means over $123 million promised for the HIV response was never delivered. This lack of funding has had a crippling effect on the services and community organizations working to respond to and prevent HIV.

In 2019, the Standing Committee on Health, once again, recommended $100 million per year to fund the HIV response in Canada. But, we’re still waiting!

On the one hand, the government is clearly not spending enough on the HIV response. But on the other hand, how much money was spent on the nationwide consultation that was destined to go nowhere? We already had so much data showing that the criminal law needed to be changed. For example, back in 2019 the Standing Committee on Justice and Human Rights tabled a report calling on the government to change the criminal code.

The CCRHC even developed proposed language for reforming the Criminal Code. We didn’t need this expensive consultation.

A consequence of inaction

As I write this, people living with HIV are still being convicted of serious criminal offences and sentenced to years in prison for allegedly not disclosing their HIV status to sexual partners, even in situations where there was little to no risk of transmission.

Beyond the horrible, violent ways that HIV criminalization harms individuals—too numerous and too painful for me to recount here (see Alexander McClelland’s book on this topic)—we know that it has also caused significant harmful consequences for our wider communities. To quote a recent publication in the Canadian Journal of Public Health, HIV criminalization 

“…is applied in uneven and discriminatory ways, hinders public health HIV prevention efforts, and has damaging effects on the everyday well-being, safety, security, and rights of people living with HIV. Studies also show that the mainstream press reinforces damaging, racist, stigmatizing messages about HIV in its coverage of criminal non-disclosure cases.”      

If anyone reading this thinks they might be in favour of a criminal law response to HIV, let me ask you this: how many cases of HIV has the criminal law ever prevented? To answer this question, I’ll offer this quote from an article in the journal of Critical Public Health: “One of the defining features of the literature is the absence of a single study demonstrating that HIV criminalization has a positive impact on HIV prevention.”

HIV criminalization is killing people. I tell you this based on my own personal experience. As a criminalization survivor, I sometimes feel like I am being inexorably, slowly, killed by a brutal system that has abandoned me to poverty, precarious housing, stigma, discrimination and ongoing criminalization. I served my time, but there are so many other ways that my life is still criminalized today because of the unjust Criminal Code that persecuted me in the first place, and because of the government’s inaction and failure to right this historic wrong.

From inaction to action

I don’t want to end this piece with the government’s inaction. Instead, I want to leave us with a call to action. In the coming federal election, we can ask how parties and leaders will address community calls for criminal law reform. We can ask them to commit to taking real action: we don’t need another public consultation that goes nowhere.

Also, we can inform ourselves and others about the harms of HIV criminalization. I don’t know exactly where this quotation comes from, but it’s one that my friend, the late Cindy Stine, once told me: “If you don’t know your rights… you don’t have any!”

As we head into this next election, we as a community can keep HIV criminalization on the political agenda. We know that HIV criminalization harms public health—it harms everyone. Time to ACT UP!

I encourage you to stand with me by joining the Canadian Coalition to Reform HIV Criminalization. HIV IS NOT A CRIME!!

 

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 is a current member of the steering committee of the Canadian Coalition to Reform HIV Criminalization.

Colin 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. 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.