If a person charged with a crime is found to be HIV-positive, that could be enough for police to disclose that very personal and sensitive information to the public.<\/p>\n
That\u2019s one takeaway from an Ontario Court of Appeal decision that advocates say is cause for concern for those living with HIV or AIDS, which continue to attract stigma and misunderstanding despite evolving science.<\/p>\n
The province\u2019s top court overturned a lower court decision last week, ruling that that Durham Regional Police did not breach former youth pastor Kris Gowdy\u2019s constitutional rights following his 2012 arrest for Internet child luring when they disclosed in a news release that he was HIV-positive.<\/p>\n
Gowdy was arrested after arriving at the home of someone who had been posing as a 15-year-old boy online, to perform oral sex, only to discover the individual was a police officer. Police searched his car and discovered documentation and medication proving he was HIV-positive. The arrest and Gowdy\u2019s HIV status were widely reported on at the time, making international headlines.<\/p>\n
Writing for a unanimous three-judge panel, Justice David Watt said the police force\u2019s actions in disclosing Gowdy\u2019s HIV status were \u201cclearly in retrospect not advisable.\u201d<\/p>\n
But the judges held that the release of that information did not violate Gowdy\u2019s right to security of the person because there had been no finding at trial that the disclosure had a psychological effect on Gowdy beyond the impact already caused by the charge he was facing.<\/p>\n
They also concluded that provincial privacy legislation contains an exemption for municipal institutions to release personal information that they have lawfully gathered if it is for a \u201cconsistent purpose.\u201d<\/p>\n
In this case, Watt said that the \u201cconsistent purpose\u201d was to further the investigation \u201cby inviting responses from other sexual partners of Gowdy\u201d who may be at risk of transmission.<\/p>\n
\u201cThe police had reasonable suspicion; reasonable grounds to believe further offences had been committed was not required for the purpose of the media release,\u201d Watt said.<\/p>\n
The court dismissed Gowdy\u2019s appeal of the conviction, but allowed the Crown\u2019s appeal. The court substituted Gowdy\u2019s two-year conditional sentence, which he served at home, with a one-year jail term, although it said he should not be re-arrested because he had already served his sentence.<\/p>\n
As noted by the Court of Appeal, the lead investigator in the case did not seek legal advice or the permission of the police chief or his designate before issuing the news release, did not seek medical advice to find out the likelihood of transmission of the virus through a sexual activity such as fellatio, and did not seek to confirm Gowdy\u2019s assertion that his medication had rendered his viral load so low that it made transmission unlikely.<\/p>\n
Gowdy also never admitted in his interview with police that he had had sexual contact with individuals who were unaware of his HIV status, the court said.<\/p>\n
\u201cThe lead investigator testified that, to his knowledge, he had never before investigated someone with HIV in his 23 years of policing,\u201d Watt wrote. \u201cThe investigating officer acknowledged he did not consider the Charter rights of Kris Gowdy before requesting the media release.\u201d<\/p>\n
Richard Elliott, executive director of the Canadian HIV\/AIDS Legal Network, one of the interveners in the appeal, said in an interview with the Star that police should have turned their minds to what the actual risks of transmission may have been in this case.<\/p>\n
\u201cI can’t think what that \u2018reasonable suspicion\u2019 is actually founded on. I don’t think the suspicion is a reasonable one, all the information the officer had was that this accused was HIV-positive,\u201d Elliott said.<\/p>\n
\u201cThis is a case in which merely finding out someone has HIV was seen by police as sufficient for putting out a press release, basically engaging in a fishing expedition.\u201d<\/p>\n
He also described the court\u2019s interpretation of the \u201cconsistent purpose\u201d exemption as \u201cvery, very liberal,\u201d saying it sets an \u201cextraordinarily low bar\u201d that police have to clear before releasing a person\u2019s HIV status.<\/p>\n
The case highlights what advocates say is a lack of proper training for officers in dealing with HIV-positive individuals and the absence of clear statutes governing the disclosure of such information by police.<\/p>\n
Durham police spokesman Dave Selby declined to comment on the court\u2019s decision.<\/p>\n
\u201cIn general, I can say that we regularly review our policies to ensure they are consistent with all applicable laws and judicial decisions. We will review this decision carefully, as well,\u201d he said in an email. \u201cWe will continue to respect the fundamental privacy rights of all citizens while balancing our community safety responsibilities.\u201d<\/p>\n
Gowdy\u2019s appeal lawyer, Russell Silverstein, said his client is considering whether to seek leave to appeal to the Supreme Court of Canada.<\/p>\n
\u201cWhen it comes to one\u2019s HIV status, different considerations apply, it\u2019s not the same as telling the world that the accused is suffering from cancer or some other disease,\u201d he told the Star.<\/p>\n
\u201cYou can\u2019t say that the release of such information is per se a Charter breach, it\u2019s going to depend on the circumstances, and the question is: what should the appropriate test be for the disclosure of that particular information?\u201d<\/p>\n
A former pastor with the Free Methodist Church of Canada, Gowdy posted an ad on Craigslist in 2012 looking for men interested in receiving oral sex, specifying he was looking for \u201cunder 35, jocks, college guys, skaters, young married guy.\u201d<\/p>\n
A detective with the OPP\u2019s Child Sexual Exploitation Section homed in on the use of the words \u201cyoung,\u201d \u201cskater,\u201d and \u201cunder 35\u201d in Gowdy\u2019s ad, and began an online conversation with him, posing as a 15-year-old boy.<\/p>\n
Shortly after agreeing to meet the \u201cboy\u201d for oral sex, Gowdy was arrested. He maintained in court that he never actually believed the person he was conversing with was 15 years old.<\/p>\n
Gowdy, a former pastor with the Free Methodist Church of Canada, had kept his sexual orientation secret from his family and church, his 2014 trial heard. He had no prior criminal record and there were no complaints about inappropriate behaviour from the ministries where he had worked as a pastor.<\/p>\n
\u201cI regret incredibly my actions, they were foolish and inappropriate,\u201d Gowdy told the Star in an interview in 2014. \u201cIt feels to me like there should be some kind of reprimand to these officers at the minimum.\u201d<\/p>\n
At trial, Justice Michael Block found that the release of Gowdy\u2019s HIV status violated his constitutional rights. He circumvented the mandatory minimum sentence of one year in jail for the luring offence, and instead imposed a two-year conditional sentence, which Gowdy served at home. Gowdy\u2019s name was to remain on the sexual offender registry for 20 years.<\/p>\n
\u201cMr. Gowdy had a right to make his own choices concerning the disclosure of his HIV status,\u201d Block said. \u201cNo doubt he would have chosen his own method and different timing if he ever determined to inform those near to him. Absent evidence of serious risk of transmission and rigorous compliance with statute, no one had the authority to make that decision for him.\u201d<\/p>\n
By JACQUES GALLANT<\/p>\n
TheStar.com<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"