The Canadian Minister of Justice instructs federal state prosecutors in the north that they should no longer prosecute anyone for not disclosing their HIV status to a sexual partner who is not at risk of transmitting the virus.
The new rules, which will come into effect on Saturday, will not be transferred to the provinces – only in the territories where federal prosecutors have legal powers.
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It does not seem that the federal government planned to push the provinces to follow, hoping instead that a policy change would be an example to them.
The new Torrent Rules for Crown Lawyers are an effort to ensure that criminal laws maintain scientific evidence of the virus and the conditions under which it can not be disseminated. The wording of the Directive states that there is no public interest in not prosecuting HIV against "behavior that medical science shows does not pose a risk of serious harm to others".
A human immunodeficiency virus can eventually lead to AIDS, a syndrome that stops the immune system and makes a person highly vulnerable to bacteria and viruses. HIV can not be cured, but it can often be suppressed until the virus is virtually undetectable.
The directive published in its preamble Friday afternoon remarks that people from marginalized populations – such as indigenous, homosexual and black people – are more likely to have HIV and are illegally affected by non-disclosure laws.
The Supreme Court of Canada ruled that consent to sexual activity may be abolished if the accused person has not detected or lied about his HIV status. The crown must show that the partner would agree to sex if he were aware of his position.
Most often, this leads to accusations of an accelerated sexual assault if sexual contact either has transmitted the virus to the complainant or has made the alleged victim a significant risk of becoming a suspect.
The 2004 Supreme Court ruling clarified that there is a realistic risk of transmission if it is a condom and the HIV positive person has a "low viral load".
Justice Minister Jody Wilson-Raybould for state prosecutors said cases should not happen where viral load suppression – defined as less than 200 copies of virus per milliliter of blood – is being suppressed. The Advocate General should generally not prosecute if he was using a condom or a partner who only deals with oral sex.
And where Crown Lawyers advocate cases, Wilson-Raybould will ask her attorney for possible lighter charges, especially if they are "lower levels of guilt".
The Directive does not apply to cases before courts – only those who land at Crown Prosecutors' Stands from this weekend.