I would first like to thank you for this opportunity to speak to the committee on such an important issue today. I'm perfectly bilingual, so if there are any questions, they can also be in English, though I'll do my speech in French.
Members of the committee, I appear before you today on behalf of my employer, the Ontario AIDS Network, or OAN for short, as a person living with HIV. I am the national coordinator of the positive leadership development institute program, known as PLDI, a leadership program for HIV-positive people with a focus on empowerment. The program is currently available in three provinces.
Since the beginning of the HIV/AIDS epidemic, people living with HIV have been on the front lines, battling against the epidemic. Consider, for instance, the Denver principles and the greater involvement of people living with HIV/AIDS, known as the GIPA principle.
The time has come for those in power to stop isolating and penalizing people living with HIV, many of whom are already marginalized. I am not a lawyer or an expert on the differences in federal and provincial jurisdiction, but I can safely say one thing. Existing law on the non-disclosure of HIV status is, as you probably know, unfair and counterproductive to the objectives of increasing testing and ending the epidemic, as set out in the UNAIDS 90-90-90 target, not to mention the objectives beyond that time frame.
I will now address the usefulness of the federal directive.
While the OAN and I recognize that the Attorney General's 2018 directive for federal prosecutors and 2017 report are steps in the right direction—for which we are grateful—the directive has yet to be fully implemented and is merely a first step.
Even if every province were to adopt a directive identical to the federal government's 2018 directive, it is our view that the Criminal Code would still need to be amended, as Ontario's then Attorney General Yasir Naqvi and then Minister of Health and Long-Term Care Eric Hoskins called for in December 2017, in a joint statement:
It is our hope that with this new report, Minister Wilson-Raybould [now the Honourable David Lametti, Minister of Justice and Attorney General] will take immediate action and consider reforms to the Criminal Code to align with new scientific evidence and reduce the stigma of HIV/AIDS in Canada.
We join the Canadian Coalition to Reform HIV Criminalization in calling on the federal government to consider reforms to the law. Given that criminal law is a federal domain, the OAN maintains that the federal government has a duty, as well as the necessary latitude, to do more than simply propose a directive that applies in just the three territories.
Yes? Is there a problem?
In the current landscape, Ontario is, to my knowledge, the only province that has adopted part of the federal directive addressing the U = U Consensus Statement. That is far from optimal. Clearly, the OAN's position is consistent with that of many stakeholders, who maintain that individuals travelling to different parts of the country would be subject to different directives.
If I understand correctly, under the current circumstances, someone living with HIV who uses a condom with a partner receiving preventive treatment, or pre-exposure prophylaxis, would be at risk of prosecution because of the inconsistencies in the various directives. The same is true of the federal directive, which lacks clarity and does not totally rule out the possibility of prosecution in a similar scenario.
In 1967, while justice minister, Pierre Elliott Trudeau proclaimed that there was no place for the state in the bedrooms of the nation, and that statement still holds true as regards our discussion today. Any involvement of the criminal justice system should be limited to cases involving intentional or actual transmission of HIV. The justice system should not penalize an individual for failing to disclose their HIV status under the pretext that they are committing fraud.
In terms of the best way to address non-disclosure of HIV status, I would point to the fact that all UN member states pledged to promote a social and legal environment supportive of and safe for voluntary disclosure of HIV status, further to the 2006 Political Declaration on HIV/AIDS. Canada has yet to follow through on that pledge. The current context of criminalization does not encourage HIV-positive people to come forward publicly and thus become role models. Nor does it protect individuals when disclosing privately. Under the current circumstances, people may enter into a loving relationship from a place of mistrust, which is absurd.
With the tremendous strides made on the treatment front, stigmatization and criminalization are now the biggest issues of concern, according to any group of people living with HIV—or PLWHAs—in any context. Criminalization is an integral part of the stigma we continue to face. The OAN maintains that the best way to address the issue of non-disclosure of HIV status is through education, reduced stigmatization and, of course, access to treatment. Through its positive leadership development institute program and special workshops, the OAN addresses not only the issue of disclosure by people living with HIV, but also leadership building to inspire role models for the community.
The OAN stands with the endorsers of the Community Consensus Statement in calling on all three levels of government to support the development of resources and training to address misinformation, fear and stigma related to HIV. Training should be conducted by experts in HIV and be extended to judges, police, Crown prosecutors and prison staff nationwide. Better co-operation with the criminal justice system and public health authorities hinges on education and stigma reduction.
The federal government should ensure greater alignment between its directive and provincial directives on criminal prosecution, but that is only part of the solution. The OAN recognizes that aligning provincial directives with the federal directive poses a challenge and therefore echoes the Canadian Coalition to Reform HIV Criminalization in calling for Criminal Code reforms along with sound prosecutorial guidelines, including for provincial Crown attorneys. The two are not mutually exclusive, and both are, in fact, necessary.
Ending the over-criminalization of HIV requires legislative reforms to remove the non-disclosure of HIV from sexual assault provisions and ensure it applies only in cases of actual and intentional transmission.
Although PLWHAs like myself are grateful for the progress that's finally been made on an issue that is so vital to us, our peers and our communities, we urge elected officials to go one step further and amend the Criminal Code, in keeping with expert recommendations such as those of the Canadian Coalition to Reform HIV Criminalization.
Together, let's put a stop to this. Let's make sure that the unfair and ineffective discrimination against marginalized populations comes to an end. Let us work together effectively to put an end to this epidemic.
Thank you for listening.
Good morning. My name is Kyle Kirkup. I am an assistant professor at the University of Ottawa Faculty of Law.
Over the past decade I have published a series of peer-reviewed articles about the criminal law's regulation of gender and sexuality in Canada, including the criminalization of HIV non-disclosure. I have also written expert reports on LGBTQ human rights issues for the Office of the Correctional Investigator, the Ontario Human Rights Commission and the Ontario Association of Chiefs of Police.
My main point this morning is this. Canada targets people living with HIV for non-disclosure at one of the highest rates in the world. Our current approach leaves people living with HIV with considerable confusion about when they are legally required to disclose their status. It targets marginalized communities, including women. It fuels stigmatizing messages about people living with HIV. As well, it ultimately undermines public health.
To be sure, the federal prosecutorial directive issued in late 2018 was a step in the right direction in order to limit unjust prosecutions.
Now the federal government should take the next logical step, one recommended by a coalition of civil society organizations across Canada. HIV non-disclosure should be removed from the reach of the Criminal Code in all but the clearest of cases where there is the intentional and actual transmission of HIV.
I want to start by just briefly laying out the history of HIV non-disclosure in Canada. In the aftermath of the HIV/AIDS epidemic, it would have been open to Parliament to enact new Criminal Code offences to target HIV non-disclosure or transmission. It chose not to do so. Therefore, beginning in the 1980s, we saw judges graft instances of HIV non-disclosure onto existing Criminal Code offences, varying from common nuisance to administering a noxious substance to criminal negligence causing bodily harm to aggravated assault to aggravated sexual assault and even, in extreme cases, to murder.
This ill-defined, ad hoc approach left people living with HIV with considerable confusion about the precise circumstances under which they were legally required to disclose their status.
After over a decade of legal confusion, the Supreme Court issued its decision in Cuerrier in 1998. Here, the court held that people living with HIV had a legal duty to disclose their status whenever there was a so-called “significant risk of serious bodily harm”. Failure to do so constituted fraud within the meaning of paragraph 265(3)(c) of the code, which would transform what would otherwise be consensual sex into aggravated sexual assault. We know that aggravated sexual assault is one of the most serious offences in the Criminal Code. It carries with it the maximum punishment of life imprisonment as well as a mandatory designation as a sex offender.
Following the decision, the confusion did not end, however. Risk of HIV transmission is a notoriously difficult concept to apply, engaging questions about which sexual activities were performed, whether a condom was used, whether the person living with HIV had a low viral load, whether either partner had any other sexually transmitted infections, and a constellation of other factors.
Therefore, again, in 2012 the Supreme Court tried to clarify this legal standard in a case called Mabior, this time explaining that people living with HIV had a legal duty to disclose their status whenever there was “a realistic possibility of transmission”. The court went on to explain that, at least in the context of penile-vaginal sex, if the accused person had a low viral count and a condom was present, there was no legal duty to disclose their status.
In the face of this legal regime, and after years of advocacy done by people living with HIV, we started to see the emergence of long overdue prosecutorial guidelines, because this legal standard continued to be very difficult to apply in practice. In 2016, former minister of justice and attorney general Jody Wilson-Raybould stated publicly that the criminalization of HIV non-disclosure “further stigmatizes those living with HIV”.
Then, two years later, she issued the directive to the Director of Public Prosecutions, which sets out four guiding principles designed to govern prosecutorial decision-making: first, not to prosecute people with suppressed viral loads; second, not to prosecute people where condoms were used or where only oral sex was performed, unless there were other risk factors present; third, to use non-sexual offences with lower levels of blameworthiness in appropriate circumstances; and fourth, to determine if public health authorities had provided services to a person accused of not disclosing their status when determining whether a prosecution would be in the public interest.
While this directive is a step in the right direction, and one that promises to help guide similar kinds of directives being constructed by provincial attorneys general across the country, it is important to underscore the limited jurisdiction of this directive. It only applies to prosecutions done in Yukon, the Northwest Territories and Nunavut.
Despite efforts to clarify the law and issue prosecutorial directives, people living with HIV continue to experience profound harms as a direct consequence of HIV non-disclosure. While the harms are expansive, I want to emphasize at least four. These harms lead me to conclude that statutory amendments are needed.
First, confusion remains about when people living with HIV are legally required to disclose their status. Indeed, the current state of HIV non-disclosure is antithetical to a fundamental precept of criminal law, one that I teach my students in my first-year class. Individuals ought to be able to clearly know what steps they ought to take to avoid contravening the Criminal Code.
Second, there is strong empirical evidence to suggest that the burden of criminalization is not distributed evenly across our communities. In particular, black and indigenous people are disproportionately targeted by criminal prosecutions. On this point, I would direct the committee to review the Canadian HIV/AIDS Legal Network’s 2017 report entitled “HIV Criminalization in Canada: Key Trends and Patterns” that tracks every known prosecution for HIV non-disclosure beginning in the late 1980s and finishing in 2016.
Third, HIV non-disclosure prosecutions fuel stigmatizing messages about people living with HIV. For example, in many instances, HIV non-disclosure prosecutions are subjected to intense media coverage. In 2010, for example, the Ottawa Police Service issued a press release for a man they already had in custody, publishing his name, photo and details of his sexual orientation and his medical condition. Issuing this press release led to a series of sensationalist stories in newspapers such as the Ottawa Sun that continued throughout the trial process. These stigmatizing stories are yet another collateral consequence of the misguided approach to HIV non-disclosure in Canada.
Lastly, the criminalization of HIV non-disclosure runs the risk of undermining public health. By way of a concrete example, health care providers may be placed in the unenviable position of having to provide legal information to people living with HIV about how to avoid coming into conflict with the criminal law. This is simply not the role they ought play.
Ultimately, Canada has the unfortunate distinction of prosecuting people living with HIV for non-disclosure at one of the highest rates in the world. The approach causes very real harms. To be sure, the federal prosecutorial directive issued in late 2018 was a step in the right direction, but the directive is not enough.
The federal government should now begin the process of removing HIV non-disclosure from the reach of the Criminal Code in all but the clearest of cases where there is intentional and actual transmission of HIV. If Parliament undertakes the project of legislative reform, it will be critical to ensure that experts, especially those who have been targeted by unjust prosecutions, are meaningfully consulted. Once and for all, it is time to move away from the misguided approach of criminalizing HIV non-disclosure in Canada.
Thank you to the Chair and the members of the justice committee.
I'm currently a doctoral student at Concordia University. Later this year, I'll begin a Social Science and Humanities Research Council Banting postdoctoral fellowship in the department of criminology at the University of Ottawa. I'm also a member of the Canadian Coalition to Reform HIV Criminalization.
For my doctoral research, I was funded by the Canadian Institutes of Health Research and Concordia University to examine the experiences of people living with HIV across Canada who have been charged, prosecuted or threatened criminally in relation to alleged HIV non-disclosure. To my knowledge, this is the first qualitative research study, globally, that is focused specifically on HIV criminalization from the perspectives of the people who have lived it.
Today I'll share findings from that study. I've also provided to the committee clerk statements about the experiences of the harms of criminalization from the people who are currently incarcerated.
In speaking directly with people who have been criminally charged, my research calls into question dominant understandings of the courts and media that people living with HIV are violent perpetrators who are actively trying to transmit to others. Rather, what comes to be institutionally understood as wrongdoing is much less obviously so. Because of criminalization, complex and nuanced situations—including people's silence, fear, actual disclosure or in some cases their inability to address their own HIV status—is forced by the criminal justice system into a dichotomous narrative of victim and perpetrator.
I conducted 28 interviews with 16 people from five different provinces. I spoke with five women and 11 men. One of the women identified as a transwoman. This was a diverse group of people who comprise a wide range of experiences across the spectrum of people who are facing criminal charges in relation to HIV non-disclosure. Many of them are socially marginalized, including black and indigenous people, gay men, people who live in poverty and women with histories of street-based sex work. The youngest person I interviewed was in their mid-teens at the time of charges and the oldest was in their mid-fifties.
The interviews consisted of detailed questions about people's experiences from the time they found out they were criminally charged, to, if relevant, their arrest, court proceedings, sentencing, incarceration, release and their lives outside after their sentence. Three of these people had been threatened with criminal charges by police, while 13 had been formally criminally charged—all with aggravated sexual assault. HIV transmission was alleged to have taken place in only one of these cases.
All of the women I interviewed indicated having long histories of sexual abuse by men and discussed a context where disclosure was highly complex due to their lack of power in the relationships. A woman I spoke with was charged with aggravated sexual assault because she had been gang-raped and did not disclose to her rapists. Another woman who was threatened with criminal charges was raped at knifepoint, yet she was the one threatened with charges of aggravated sexual assault. Both had histories of sex work and authorities did not treat their accounts of their sexual assaults seriously. One of these women told me that if she's guilty of anything, she's guilty of being raped.
The charge of aggravated sexual assault was extremely confusing for people because they understood that the sex they had was consensual—outside of those two instances. A majority of the people in the study were concerned about transmitting HIV to someone else. They understood that they acted in a manner so as to protect their partners from potential transmission, such as noting that they took their medications regularly, rendering them uninfectious, or that they used condoms, or both. One woman I spoke with handed her partner a condom prior to sex, which he did not use. She is now a registered sex offender. In some cases, people had disclosed to their partners who later went to police and lied about the disclosure having taken place.
Due to being charged with a criminal sanction usually reserved for the most violent, non-consensual, actual sexual assaults, combined with being HIV-positive, the people I spoke with were confronted with intensified forms of punishment, violence and discrimination. This included denial of bail and ultimately incarceration for long periods of time on remand prior to trial or before charges were dropped or stayed, extraordinary release conditions as part of bail, or conditional release that included being mandated to present oneself to police 24 hours in advance of proposed sex with their sexual partner and having the partner consent to sex in front of police. The people I interviewed who had these conditions imposed had undetectable viral loads.
Additionally, people I spoke with told me that there was a widespread lack of knowledge of the current science of HIV by police, lawyers and courts. This put people who were criminally charged in the position of having to educate those tasked with criminalizing them about viral load and transmission. People felt that the police's stigma and ignorance was enabled by the legal context of criminalization.
All but two of the 14 people charged indicated that this was their first-ever criminal charge. Despite this, all but one of them were denied bail due to the perceived severity of the case, and were either held in remand or under house arrest for long periods.
Seven people I spoke with were prosecuted, with five of the seven pleading guilty. The reasons they indicated for taking a plea were the following: having been coerced by their lawyer into pleading despite having undetectable viral loads or having used condoms; being fearful of missing their families; or being ashamed of the charge and of having their HIV status exposed to the public. The longest sentence served was close to 15 years. The shortest sentence served was approximately two and a half years.
From the point of arrest through trial, incarceration and release, people I spoke with described a series of events that were marked by HIV-related stigma, panic, discrimination and fear. People described a range of forms of violence at the hands of government employees, namely police officers and prison staff. These included denial of health care and medication access from corrections employees. One person I spoke with almost died because guards would continually rip up his urgent requests to see a doctor in his face.
Other forms of violence included long periods of incarceration and administrative segregation as well as breaches of privacy wherein corrections officers would disclose their HIV status and charges in front of others, knowing that physical violence would or could result.
Additionally, there were assaults by police officers and corrections officers accompanied by stigmatizing comments and discriminatory behaviour. One man told me:
I was getting beaten by all the inmates because their corrections officers had disclosed my charge to people on the range. I was on an isolated range for violent murderers and would still get harassed. You know this rape charge and HIV was worse than being a murderer in their eyes. One officer pushed me to the ground naked holding me with a boot to my chest saying he would never touch a man with AIDS.
Another indigenous woman told me, “They treated me like dirt. They only touched me with gloves and would use really heavy alcohol rub afterwards. They talked down to me like I was a non-person, an AIDS person.”
Given the charge of aggravated sexual assault and the resulting registration as a sex offender, people were not able to get employment in areas where they had past experience and expertise. They were denied jobs when applying. Many were on social assistance, even though they wanted to work.
People were regularly denied housing. One person was told, “We don't rent to rapists.” The person had had their charges dropped by the crown but information about their case was widely available online.
All of the participants noted that they failed or did not meet the criteria of the various psychological tests to determine what kind of sex offender they were. A few noted that the tests themselves had caused ongoing psychological trauma. This was due to being forced to watch videos of child pornography and violent sexual assaults, as well as being coerced into defining their normal adult sexual desires as deviant or wrong, just because they had HIV.
The past charge continued to extend into their daily lives by threatening their economic security. One indigenous woman told me, “I'm not allowed to work in the school I used to. I love working with kids, but now the school won't allow me to.” One man told me “To label someone as a sex offender, that's for life. I have to carry this for the rest of my life. I think that's unfair.”
All of the people I spoke with had a very hard time psychologically coping with being understood as a violent rapist. As a result of their experiences of criminalization, all had either tried to commit suicide or had long periods of suicidal ideation. Today, a majority of the people I spoke with live with post-traumatic stress disorder, which has a wide range of impacts on their daily lives.
Through speaking with criminalized people directly, it becomes apparent that applying the criminal law, specifically the laws of sexual assault, causes greater harm, often exacerbating situations that are already marked by stigma, trauma, shame and discrimination.
Thank you to the members of the committee.
I want to take a moment to thank Alex for sharing those stories of people living with HIV, and what is some really incredible and groundbreaking research, and really important in underscoring to the members of the committee why this is an issue of such concern to people living with HIV and those of us involved in the HIV response in Canada.
The harm that follows from using the criminal law in the overly broad way that is currently being seen in Canada is real; it is deep; it damages people's lives in ways that are vastly disproportionate to whatever the perceived risks of harm may be in a variety of circumstances that are currently caught up in the scope of the criminal law.
I work for an organization called the Canadian HIV/AIDS Legal Network. I'm a lawyer, I've been with this organization for more than 25 years now, and have been co-counsel for us and other organizations as intervenors in a number of the cases that have been mentioned before the Supreme Court and a number of appellate courts across the country.
I have distributed a number of documents to you today, some of which have already been mentioned, that I would like to draw your attention to as I go through my remarks.
The first is a document that was already mentioned by Professor Kirkup, and that is this document that outlines for you the key trends and patterns in HIV criminalization from the late 1980s until the end of 2016. It analyzes all the known prosecutions, and represents the best, most comprehensive analysis of HIV criminalization cases to date in Canada.
Obviously, since it only goes until the end of 2016, it is now slightly dated. I just want to let you know that based on the tracking of cases since then, we can say that approximately 200 people have been prosecuted to date in more than 200 separate instances. Yet despite the advances in science and our understanding of HIV transmission, we continue to see prosecutions being brought in cases where there is simply no scientific basis for doing so.
As has already been mentioned, there is also a disproportionate impact of HIV criminalization on a number of different populations. Among men who have been charged, black men are disproportionately represented. Among women who have been charged, indigenous women are disproportionately represented. In the years since the Mabior decision of the Supreme Court of Canada in 2012, there has been a significant increase in the number of gay men being charged. I think it's also worth noting that of the cases we have documented, the majority do not involve alleged transmission of HIV.
We have a problem; the data shows it. The harms you've heard about as well, of this broad and consistent use of the criminal law, you've heard in the remarks that have come from Martin and from Kyle and from Alex.
I want to take a moment to draw your attention to an additional document that I've shared with you, which is a summary of the law regarding sex offender registries, because given that the charge most often used now to prosecute allegations of HIV non-disclosure is aggravated sexual assault, if a guilty plea or a conviction follows a trial, it is currently mandatory under the law that this person be designated as a sex offender, and this is presumptively for life, given the charge. There's a minimum of 20 years before you can even apply for the possibility of being removed from the sex offender registry, and you've heard from some of the other witnesses the harms that follow from being designated a sex offender.
Let's keep in mind that we're talking here about circumstances in which the sexual assault described by law is not what we normally think of as a sexual assault. These are not instances of forced or coerced sex; these are instances of consensual sexual encounters where it is alleged after the fact that the non-disclosure of certain information turns that into an offence under the law that should be treated in the law the same as a violent rape. There is a mismatch here between the reality of people's lives and how we negotiate consensual sexual relationships and how the criminal law is being deployed. The consequences are severe.
You've also heard reference—and I'll think you'll hear reference from other witnesses—to the harms that happen not just to individuals, and those have been laid out very eloquently, but the broader public harms to the public interest, including public health.
When it becomes the case that finding out your HIV status means that you risk prosecution and potentially being convicted and designated as a sex offender for life for having consensual sex with a partner, even under the broad state of the law as it stands now, for circumstances in which there was no risk of transmission, or at most, a negligible risk of transmission, that is a real disincentive to getting testing, and there is some evidence to support this concern.
It also undermines the therapeutic relationship between service providers and people looking for health services, because anything you say to a health care worker, a social worker or other support worker can be used against you as evidence in a criminal proceeding, and in fact it has been and is regularly used in these criminal proceedings. In doing so, we conscript the health system and social services into the service of prosecuting people who are looking for support, including support, in some cases, around disclosure to partners and also practising safer sex and taking other measures to prevent transmission.
This is not good public policy. At the end of the day, I would suggest, the harms of HIV criminalization, particularly the broad scope of HIV criminalization that currently is characteristic of Canadian law, significantly outweigh any purported benefits of doing so. In fact, there is an emerging consensus, which has been forged over the years in response to the broad application of the criminal law, that there is indeed a problem and there is indeed a need for change.
We were encouraged to see the former federal attorney general recognize, a couple of years ago, the problem of the over-criminalization of HIV and recognize that steps needed to be taken to address it, to limit the scope of criminalization. The Department of Justice then conducted a year-long study—which, of course, you will have seen—that reached a number of fairly sound conclusions that also reflect the need to limit HIV criminalization, because Canadian law, in the way it has evolved, is too broad and too harsh.
There's particular concern expressed in the Justice Canada report about the use of sexual assault law as a vehicle for dealing with cases of alleged HIV non-disclosure. In fact, that concern is widely shared.
I would draw to your attention a third document, a community consensus statement that has already been referred to by a couple of the witnesses. It was developed by the Canadian Coalition to Reform HIV Criminalization. You'll see on the back page of that consensus statement that 174 organizations across the country, both within the HIV sector and also, notably, beyond it have supported the calls to action that are in this community consensus statement. You'll note the variety of organizations that have supported the calls to action, in terms of both the geographic spread across the country and the number of different sectors that are represented, the number of different constituencies, that are represented here, from local HIV service organizations to legal clinics to the Native Women's Association of Canada to LGBT organizations to women's organizations and beyond. You also have a companion document that addresses some of the detail about how this community consensus statement was developed through a broad national consultation across the country.
It's not just HIV organizations and other community groups that have articulated concerns about the broad scope of the criminal law; it's also scientists. I want to draw to your attention a fourth document that I've shared with you. Published in The Journal of the International AIDS Society last year during the international AIDS conference, it is an expert consensus statement on the science of HIV in the context of the criminal law. It reviews in detail the best available science about the risks of transmission under various circumstances. You'll see on the front page the executive summary of the conclusions from those scientists. These are 20 eminent scientists from around the world. The lead author is actually the co-discoverer of the human immunodeficiency virus. It's been endorsed by another 70 leading scientists around the world as well as by the International AIDS Society, the International Association of Providers of AIDS Care and UNAIDS—so the three leading HIV scientific organizations in the world.
You'll see that a key message they articulate is that the criminal justice system often misappreciates or misunderstands the science that we have about HIV and the risks associated with various sexual activity under various sexual acts. That risk of transmission per act is actually much, much smaller than most people believe. I underscore that point because we have to remember that the criminal law, as it is being deployed in Canada, is operating on the basis that a single act that may pose a statistically negligible risk of transmission can have you treated in law as being equivalent to a violent rapist and designated a sex offender for life, with all of the harms that follow and that you've already heard about.
Scientists themselves have begun to speak out and to say, “We are concerned about the overreach of the criminal law.” This situation exists not just in Canada but elsewhere. I urge you to have regard for what the scientists are saying about the scope of the criminal law.
It's also women's organizations that have spoken out and that share the concern about the misuse of sexual assault law, for a variety of reasons. I believe, as a committee, you have also received a position paper from LEAF, Women's Legal Education and Action Fund, which articulates a number of the concerns about why using sexual assault law is problematic.
I would note that the UN Committee on the Elimination of Discrimination against Women has also specifically recommended to Canada that it limit the scope of criminal law to those cases of actual, intentional transmission of HIV, which, I should note, is consistent with the recommendations from UNAIDS and from the Global Commission on HIV and the Law.
Let me close by noting that we were grateful to see the directive from the former federal attorney general of Canada in December. As others have pointed out, that directive does indeed go some way toward limiting, at least in those jurisdictions where it's applicable, the scope of the criminal law. That is an important step forward.
However, as has also been underscored and is reflected in the community consensus statement that I've shared with you, it's not sufficient. We still need to see reforms to the Criminal Code that would oust the application of sexual assault law—because it's the wrong tool for the job—and that would limit any potential application of any criminal charge to those cases of actual and intentional transmission.
I'll stop there and would be happy to take any questions.
I'm not sure that the Justice Canada report says that the majority of those cases involved those kinds of factors. Certainly, that would not be the case based on the data we have in our database. I would also underscore that this is why it's really important that our application of the criminal law be informed by the science.
As a general principle, we ought not to be using the criminal law except as a measure of last resort and except in those cases where there is serious harm or serious risk of harm to people. Keep in mind that criminalization has been deployed in many of those cases where there has been one single act or a statistically insignificant likelihood of HIV transmission. This is why I urge you to have a look at the expert consensus statement about the possibility of HIV transmission in various circumstances.
It's also important, I think, for us to draw a distinction between conduct that we may, in some circumstances, consider to be ethically objectionable and what we should be using the criminal law to deal with, especially when we're using one of the harshest tools in the criminal law with some of the most serious consequences. We ought not to be cracking a nut with a sledgehammer; and in some cases that's what we're doing in a good number of cases where there has been no harm, no intent to harm and no statistically significant risk of harm. In those circumstances, I suggest, going to the law of sexual assault is not a particularly helpful or warranted response.
I think it's also important to underscore that advocates who have been working on this issue have not said there should never be any application of the criminal law. I think you've heard consistently from everyone so far today, and it's the consistent recommendation of UN agencies and others that in those circumstances where there is actual, intentional transmission of HIV, then there is potentially a role for the criminal law to play. In Canada, at the moment, the scope of the law is much vaster than that narrower circumstance.
Yes. I think it's a good question.
Let me draw your attention to the guidance that UNAIDS, the joint UN program on HIV/AIDS, put out in 2013 that went through, in fairly exhaustive detail, the ethical, medical and legal considerations about the use of the criminal law. I think it is helpful to look at that when we start talking about concepts of negligence or recklessness because those are very fuzzy concepts. Within negligence and recklessness there is a broad interpretation of what rises to that level of moral or mental culpability, and there is a narrower interpretation. Perhaps you want to say, well, what about reckless conduct? Then we have to get into a discussion about when conduct is reckless and when it is reckless enough that it should arguably attract criminal liability.
You will see, for example, if you look at some of the guidance to prosecutors in other jurisdictions, like in the U.K., that it actually gets into detail, some of which is starting to be reflected in prosecutorial directives here. In some circumstances, for example, we should not consider conduct to be reckless. For example, if someone has not disclosed that he or she has HIV to a sexual partner but has used a condom, is that reckless behaviour? I would submit not, particularly given, as the scientists have pointed out, an intact condom correctly used is 100% effective at blocking the spread of HIV. In such a circumstance to treat such a person equivalent in law to a violent rapist seems to me a vast overreach in the criminal law.
I think there is a grey area and we need to get into specifics about what behaviour specifically.... As you've heard from some of the witnesses, people living with HIV still live with this fear and this uncertainty about when the disclosure is actually required. When the risks are so great of falling on the wrong side of that line, i.e., you become a sex offender for life with all that follows, then I think we owe people some clarity in the law. It is a very basic principle in the criminal law, as Professor Kirkup has articulated.
Thank you very much, Mr. Chair, and thank you to the witnesses for being here today. Also, thank you for your moderation.
I have to start by saying that, 30 years after Canada lost a generation of the talents of gay men and the families lost their love, we're still dealing with the stigmatization. We're still having to organize as a community and come to Parliament to demand action from a government that is so slow to act.
I want to thank Mr. McClelland for bringing the testimony of those who are actually being impacted.
I'm glad we're here, I'm glad we have the directive and I'm glad we're doing the hearings, but I'm sad that it occurs at this point in a Parliament. We haven't even begun the process of figuring out how to reform the criminal law, so this will not happen until after the next election.
I hope one of the outcomes of these hearings is that members of Parliament are committed to this being an early piece of the agenda of the next Parliament.
I was recently in Whitehorse, meeting with Blood Ties, an organization that's a front-line service delivery group for those living with HIV. Their big concern was that, even though the prosecutorial directive is in place, there's been no education around that in the north. Therefore, the people most likely to be affected have no knowledge of the change in attitude of prosecutors.
I want to ask Mr. McClelland about that, in terms of those most likely to be affected.
Do they have knowledge that we're even moving in this direction, or is it still the stigmatization and the threat of prosecution that rules in their minds?
Okay. Thank you very much.
Members of the committee, thank you for the opportunity to appear before you today. The issue of criminalization of non-disclosure of HIV is a serious one, and I'm pleased that the Standing Committee on Justice and Human Rights is studying the matter.
As you know, Canada has the unfortunate distinction of being one of the most aggressive countries in the world in terms of the criminalization of HIV non-disclosure. This has resulted in the prosecution of a wide number of cases that, in my view, did not warrant prosecution and the application of criminal law.
It's important to note that it is now well established that the possibility of HIV transmission from an HIV-positive person with an undetectable viral load as the result of effective treatment is, according to the U.S. Centres for Disease Control, effectively no risk. That is, “U equals U”: undetectable equals untransmittable.
For that reason, it is important that the December 2018 federal directive providing prosecutorial guidance on HIV non-disclosure states that prosecution shall not proceed in cases of HIV non-disclosure “where the person living with HIV has maintained a suppressed viral load...because there is no realistic possibility of transmission”.
As you know, however, the directive only applies to federal Crown attorneys and is limited to prosecutions in the territories. There are still many regions of Canada where prosecutions may proceed, notwithstanding this federal directive.
There are also other limits to the directive. Prosecutions can still proceed even in the absence of any transmission of HIV and may proceed even under the most serious charge of aggravated sexual assault, which carries a maximum sentence of life imprisonment and mandatory designation as a sex offender.
I know many of those appearing before you today will outline in greater detail the remaining problems associated with the criminalization of HIV non-disclosure in Canada, notwithstanding the federal directive. However, today I will focus on the public health impact of the overuse of criminal law in this context.
I had the privilege of serving as the chair of a recent national working group, convened by CANFAR, the Canadian Foundation for AIDS Research. I believe each of you has been given a copy of our report, “Ending the HIV Epidemic in Five Years”, released in August of last year. The report was authored by a diverse group, including medical doctors and scientists, leaders from prominent HIV organizations and public health organizations, and people with lived experience from across Canada. The report also has the great virtue of being only eight pages long, so I would encourage you to read it.
In the report, we note that there are about 63,000 people in Canada living with HIV, but only 86% of them are diagnosed, which means there are about 9,000 individuals in Canada with undiagnosed HIV infection. For those diagnosed with HIV, only 81% are on antiretroviral treatment. This means another 10,000 individuals in Canada are diagnosed with HIV but not on treatment.
As noted in the report, we know that enhanced testing options, including point-of-care testing and self-testing, can dramatically increase rates of HIV testing. We also know that those on effective antiretroviral treatment cannot sexually transmit HIV.
If we can dramatically scale up testing options and access to care and support for treatment, we can get to the point where new infections will become rare and we can effectively end the HIV epidemic in Canada within the next five years.
That is the call to action in our report, but our report notes the many barriers that continue to exist. Point-of-care testing is dramatically underutilized in Canada, and self-testing options available in pharmacies much like a pregnancy test, now commonly available in most countries around the world, remain unavailable in Canada. All of this needs to change.
We also note that the stigma associated with HIV affects people's willingness to be tested and seek and engage in care. It affects their sense of self, community and belonging, their access to services and their ability to seek social support. The unwarranted criminalization of HIV non-disclosure greatly contributes to the ongoing stigma associated with HIV. Criminalization, often accompanied by sensationalized media reports that disproportionately focus on racialized people, damages HIV prevention efforts by discouraging HIV testing for fears that it may lead to criminal prosecution.
Criminalization erodes trust in voluntary approaches to HIV prevention and testing. It helps spread misinformation about the nature of HIV and its transmission. The overuse of criminal law compromises the ability of people living with HIV to engage in the care they need due to the fear that their HIV status and discussions with medical professionals may be used against them in criminal prosecutions.
Unwarranted criminalization has a devastating effect not only on those accused and convicted, as you have heard today; it also has a highly detrimental effect on broader HIV prevention and care initiatives. This detrimental effect was recently demonstrated in a Canadian study published in 2018 that explored the prosecution of non-disclosure of HIV status and its impact on HIV testing and transmission among HIV-negative men who have sex with men, MSM. The study interviewed 150 HIV-negative MSM and found that 7% were less or much less likely to be tested for HIV due to concerns over potential prosecution. The authors estimated that this 7% reduction in testing would cause an 18.5% increase in community HIV transmission, largely as a result of the failure of HIV-positive but undiagnosed MSM to access care and reduce HIV transmission by the use of effective antiretroviral treatment. In other words, the study demonstrated that concerns over potential prosecution reduced the number of HIV-positive people who were willing to be tested and access the care they needed to eliminate the possibility of transmission to another person. Concerns over potential prosecution deterred people from seeking testing and treatment. This was demonstrated to increase the risk of transmission to others.
In short, ending the HIV epidemic in Canada in the next five years will not happen if we continue to add to the stigma and misinformation associated with HIV by the ongoing and unwarranted overuse of criminal law measures. It will not happen if the over-criminalization of HIV non-disclosure continues to deter testing and treatment. We need to get this balance right, not only for those individuals inappropriately and unfairly caught up under Canada's current criminal law but also to advance our larger objective to end the HIV epidemic in Canada.
Good morning. Thank you for inviting me to speak to the committee today.
My name is Kerry Porth and I am the sex work policy researcher at Pivot Legal Society. Pivot is an organization located in the Downtown Eastside of Vancouver that works with communities affected by poverty and social exclusion to develop solutions to complex human rights issues.
Our work is focused in several areas, but I will limit my remarks today to my own area of expertise, which is sex work and the law. I am here to offer Pivot's qualified support for the Attorney General's new guidelines on prosecution for the non-disclosure of HIV status.
I will remind this committee that Canada has the third-largest number of recorded prosecutions for alleged HIV non-disclosure in the world. These prosecutions are disproportionately of individuals who are marginalized by poverty, race, gender expression and sexual orientation—people like our sex-working clients who continue to labour in a criminalized environment.
We are pleased to see the Attorney General taking steps to lower the number of prosecutions and to allow more consideration of individual circumstances. That being said, the directive does not go far enough. In our opinion, the decriminalization of sex work is the only way to fully respect sex workers' rights and to protect their health and safety.
We are concerned that even with the new directive, sex workers may be unfairly criminalized for HIV-related offences that are, in actuality, related to the stigma and criminalization of sex work.
We know that the criminalization of sex work, one, exposes workers to higher risks of HIV transmission. Two, it makes workers vulnerable to exploitative and risky behaviour. Three, it prevents access to health care.
On the first point, that criminalization exposes workers to higher risks of HIV transmission, in Canada the HIV burden among sex workers is highest among those who are selling or trading sex on the street. This is due to issues such as criminalization, violence, stigma and poor working conditions that limit their ability to engage in HIV prevention, including the correct use of condoms.
Most sex workers who are living with HIV contracted the disease through injection drug use or, more often, through non-commercial sex with an intimate partner.
In 2015, a comprehensive review of all HIV and sex work research over the previous six years demonstrated that biomedical and behavioural prevention efforts alone have had only a modest impact in reducing HIV infections of sex workers. Instead, the review found that structural factors played the largest roles.
Research has consistently shown that criminalization of sex work and police enforcement reduce sex workers' ability to properly screen their clients, negotiate condom use and access health services without stigma, including HIV care.
Any suggestion that sex workers were decriminalized under the Protection of Communities and Exploited Persons Act, introduced in December 2014, is wholly inaccurate. People selling or trading sex in challenging circumstances, such as those working on the streets, are limited in their ability to keep themselves safe under the new laws in much the same way as they were under the old.
For example, the prohibition on client communication means that sex workers have very little time to assess the safety of a potential client on the street because the client fears detection by law enforcement. Such workers in these circumstances have much less time to negotiate the terms of the transaction, including the use of condoms, which can leave them vulnerable to HIV.
In Canada, research has demonstrated that laws that target clients and third parties—such as managers, security and receptionists—have not reduced the rates of violence against sex workers or increased their control over their sexual health, including HIV prevention.
On the second point, criminalization makes workers vulnerable to exploitative and risky behaviour. The directive still criminalizes sexual activity if a condom is not used. This requirement differentially impacts marginalized sex workers who are vulnerable to exploitative practices, such as clients who refuse to use condoms.
In Canada, most sex workers practice safer sex at much higher rates than the general public, and this should not need to be stated, as their work requires that they have a healthy body. However, sex workers living with HIV, who are living and working in challenging circumstances, might not be aware of their current viral load but still use condoms, which are proven to be 100% effective at stopping the transmission of HIV.
There are cases, however, where clients have pressured marginalized workers, often with a significant financial incentive, to not use a condom, or have removed it during the course of a transaction, or have sexually assaulted a sex worker and did not wear a condom.
The direct criminalization of third parties, such as drivers, managers and security, is having an adverse effect on the health and safety of sex workers. It is well established in the literature and confirmed by the Supreme Court of Canada that sex workers enjoy greater safety and better health outcomes when they are able to work together in a fixed indoor location. Evidence demonstrates that safer work environments and supportive housing, which allow sex workers to work together, promote access to health services and reduce HIV risks among sex workers.
Those options are now less available, as anyone who even appears to be guilty of receiving a material benefit in the context of sex work is presumed to be guilty. This has reduced the pool of trusted third parties. Instead, people who are less averse to breaking the law and more likely to engage in exploitative practices with sex workers have stepped in to fill the void. In other words, a legal framework that casts all third parties and clients as exploitative and potentially violent, with no evidence to support that, creates an environment where violence and exploitation are more likely to occur.
Exploitative practices can include demands that sex workers take clients who don't want to use condoms. Migrant sex workers, in particular, lack connections and language skills and are at constant risk of deportation due to immigration regulations that prohibit them from working in the sex industry. As a result, they are unable to reach out to police and are afraid of accessing health care.
On the third point, sex work criminalization prevents access to health care. The directive says that people will not be prosecuted if they have a suppressed viral load, but sex workers are deterred from accessing health care and are therefore exposed to a greater risk of prosecution than other communities.
Given the structural barriers to comprehensive HIV care for marginalized sex workers, it is easy to foresee circumstances where sex workers are unaware of their current viral load, and so we have concerns about how “less blameworthy” conduct will be assessed under the new directives. The stigma regarding sex workers is profound and their conception as vectors of disease by public health bodies traces its roots in modern times to the Contagious Diseases Act of 1860 in England.
Sex workers are also confused about the criminalization—
I'd like to begin by thanking the chair, the clerk and all the committee members for inviting the Coalition des organismes communautaires québécois de lutte contre le sida, or COCQ-SIDA, to share its views on the criminalization of HIV non-disclosure, specifically in relation to the recent directive issued by the former Attorney General of Canada.
Since being tasked with responding to the criminalization of HIV exposure, the COCQ-SIDA has publicly and consistently objected to the use of criminal charges as a way to deal with the HIV and AIDS epidemic, for both public health and human rights reasons.
As a member of the Canadian Coalition to Reform HIV Criminalization, the COCQ-SIDA fully endorses the Community Consensus Statement published in November 2017 and signed by more than 170 organizations to date.
In the statement, the coalition called on the Attorney General of Canada and provincial attorneys general to develop prosecutorial guidelines based on current scientific knowledge in order to end the unjust use of the criminal law against people living with HIV.
The COCQ-SIDA therefore welcomed the federal directive providing prosecutorial guidance issued by the former Attorney General of Canada in December of last year. The directive essentially builds upon the findings of Justice Canada's December 2017 report, “Criminal Justice System's Response to Non-Disclosure of HIV”.
According to the report, the criminal law should apply neither to persons living with HIV who have maintained a suppressed viral load—in other words, under 200 copies per millilitre of blood—nor to persons living with HIV who are on treatment, use condoms or engage only in oral sex unless other risk factors are present. In both cases, there is no realistic possibility of transmission.
The federal directive goes further in limiting the use of the criminal law against people living with HIV than does the measure adopted in Ontario, which established a moratorium on prosecuting individuals for HIV non-disclosure in cases where the individual has maintained a suppressed viral load for six months, regardless of what the sexual activity was, whether a condom was used or whether the person was receiving treatment.
Now I'd like to talk a bit about the situation in Quebec. Even though the COCQ-SIDA has been calling for a directive limiting the use of the criminal law in cases of HIV non-disclosure for nearly a decade, no formal measures have been adopted or issued.
That doesn't mean, however, that nothing has been done. Efforts have been made over the years to limit prosecution in HIV-related cases. A stakeholder working group was set up to bring together representatives across sectors—government, justice, health, public safety and community. The objective was to take account of recent criminalization developments, the negative impact of criminal prosecution on public health and current scientific knowledge on HIV.
Quebec's justice ministry and Office of the Director of Criminal and Penal Prosecutions cited other reasons for not adopting a specific directive, primarily an insufficient number of reported cases. By our count, however, approximately 13 cases of HIV non-disclosure have been prosecuted since the 2012 Mabior and D.C. decisions. That said, Quebec has nevertheless made efforts to limit the use of the criminal law, including the appointment of designated prosecutors for HIV-related cases.
Despite our repeated demands, however, Quebec appears to have no plans for a clear prosecutorial directive as of now.
In the absence of a clear public directive, a person cannot know for sure whether their behaviour could lead to criminal charges. The lack of a clear directive can give rise to ill-advised situations within the provincial justice system, situations that illustrate genuine confusion or cast doubt on the appropriateness of existing guidelines. I'll give you an example.
In recent months, we've seen prosecutions being dropped after the attending physician of the accused confirmed the individual's viral load and the absence of any transmission risk. Had there been a clear directive in place, these prosecutions would have been avoided altogether, not to mention all the trouble caused to the accused. Of course, we were still glad that the prosecutions were eventually dropped.
In a mid-March decision, the Court of Appeal of Quebec held the following:
As argued by the respondent, evidence of the appellant's viral load has no bearing on the charge of aggravated sexual assault taking into account the facts of the case. Since a condom was not used during the sexual activity, the fact that the appellant's viral load was low or undetectable at the time of the events in question is not sufficient to rule out the realistic possibility of HIV transmission.
It is therefore hard to believe that, without a clear directive, the designation of prosecutors to handle HIV-related cases will ensure the consistent application of provincial law if, on one hand, viral load is considered a sufficient reason to drop a prosecution, but, on the other hand, judges on Quebec's highest court are told that viral load is not relevant in assessing whether a realistic possibility of HIV transmission exists and they maintain that idea in their decisions.
Right now, there is no way for a person living with HIV in Quebec to know whether their viral load shields them from prosecution in the event that they do not disclose their status to a sexual partner.
These issues arise because, in Canada today, the potential for government intrusion in the bedrooms of people living with HIV and their sexual practices varies significantly depending on where in the country they happen to be.
In the current context, a person could wind up in prison for engaging in sex without using a condom in Longueuil, but be shielded from criminal charges had they done the same in Whitehorse.
At the risk of overusing a concept of administrative law that lends itself well to parallels, it seems to me that people living with HIV should be able to have some reasonable expectation of outcome, to know the law as it applies to them and to have some certainty as to how the law will be applied.
It should therefore come as no surprise that the inconsistent interpretation countrywide of the realistic possibility of transmission test, established by the Supreme Court, gives rise to confusion within the community. Keep in mind the burden of that confusion falls on the shoulders of people who, very often, are already marginalized.
What comes next? Given the troubling inconsistency that prevails across the country, the federal government's work is not done. It can and must do something. The government must undertake legislative reforms to limit the unjust use of the criminal law against people living with HIV, as per the second measure called for by the Canadian Coalition to Reform HIV Criminalization in its Community Consensus Statement.
The decision to call for Criminal Code reforms was carefully considered, because we recognize the challenges involved, but a strong and, especially, lasting response is necessary.
What exactly those reforms should look like has yet to be determined, but certain elements are clear, as highlighted by other witnesses. The reforms must ensure, on one hand, that sexual assault provisions do not apply to HIV non-disclosure and, on the other hand, that the criminal law apply only in very rare cases of intentional transmission and in no other circumstances.
In conclusion, committee members, the federal directive is merely the first step in a much more extensive process of legislative reform. Although the directive announced by the federal government certainly goes further than some of the measures taken by the provinces, it remains a harm reduction measure. Even if every province were to adopt a directive on how to interpret the realistic possibility of transmission of HIV, only legislative reforms would ensure that the criminal law applied only to cases of intentional HIV transmission.
We look forward to continuing to work with you and our partners on this issue.