Good morning, everyone.
Welcome to the Standing Committee on Justice and Human Rights as we resume our study on the criminalization of non-disclosure of HIV status.
For our first panel this morning, we are joined by four witnesses. From Africans in Partnership Against AIDS, we have Ms. Fanta Ongoiba, Executive Director. She is joining us by video conference from Saskatoon. From the Alliance for South Asian AIDS Prevention, we have Mr. Haran Vijayanathan, Executive Director. As an individual, we have Mr. Eric Mykhalovskiy, Professor at York University. From the Ontario Aboriginal HIV/AIDS Strategy, we have Mr. Duane Morrisseau-Beck, President and Chair.
As everyone knows, you all have eight minutes to deliver your opening statements.
You can proceed in English or in French.
Ms. Ongoiba, since you're here by video conference, we're going to start with you. We don't want to lose you.
Ms. Ongoiba, the floor is yours.
Good morning everyone.
Thank you for inviting me to appear before the committee today.
I am extremely proud and delighted to address the committee today and to fight for HIV non-disclosure in support of all those affected. I will share with you how this issue impacts members of the African, Caribbean and black community in Canada, and Ontario, in particular.
Addressing this issue is a priority for us because it affects people from all walks of life, but especially marginalized populations. We have long been concerned about the criminal laws and the punishment they essentially inflict on people living with the virus. We think it is high time that the laws change for the better, so that those affected can lead a healthy and peaceful existence, like everyone else.
This is also about normalizing the face of HIV/AIDS to send the message that HIV/AIDS does not discriminate. It doesn't care about what colour a person's skin is, what they look like or whether they are rich or poor. HIV/AIDS crosses all boundaries. It would therefore be better if everyone were on the same page, working hand in hand to fight the scourge and surrounding negativity, while supporting prevention efforts. That would, at a very minimum, help those affected to lead happy lives, like everyone else, and to feel loved and accepted by all.
I know that we don't have much time for a presentation, but this is my plea regarding a disease that affects all strata of society. It's essential to rethink the law so that people can once again be seen as normal.
The most marginalized and vulnerable people affected are women. They, in particular, are vulnerable in the face of the disease. They are the ones who give life and are certainly not spared. What's more, women are the caretakers of children and men. Criminalization prevents people from revealing their status and being seen as normal. In the current climate, they are seen as abnormal.
We are all here for the same reason. I applaud you for holding a debate on this scale, bringing lawmakers and community workers together to foster mutual understanding in pursuit of the common good. In the African, Caribbean and black community, the effects of these laws are strongly felt, especially by women.
It's also important to look at the issue through the immigration lens. To some extent, people suffer prejudice. People leave war-torn countries for a better life here, in Canada. Not all of them bring the virus with them; some of them contract it here.
Therefore, no one can say that immigrants are bringing the disease to Canada. The justice system criminalizes people living with HIV/AIDS, mainly heterosexual African, Caribbean and black men. Their cases are highly publicized, with their photos being splashed everywhere. If they are sent to prison, they leave their families behind. Their reputations are ruined and they lose everything they had. The damage done by these laws leads to major isolation and even suicide. These cases come down to one person's word against the other's. The law makes no allowances for situations where a person claims that the other never disclosed their status even if they did. The person who makes the initial complaint will always win. Let's face it, it's the person who complains about the other.
The criminalization of HIV non-disclosure can be viewed in a number of lights. For instance, the current situation does more harm than good from a prevention standpoint. It drives people into hiding and discourages them from getting tested. It results in fewer people being diagnosed and receiving treatment. How can we treat someone when they don't even know they have HIV?
Furthermore, how can we achieve the UNAIDS 90-90-90 targets? That means diagnosing infected individuals, providing treatment to them and ensuring they sustain treatment. By criminalizing HIV non-disclosure, we rule out the possibility of achieving the 90-90-90 targets, in my view.
The statistics show that, in Canada, 86% of infected individuals are diagnosed, 91% receive treatment and 81% remain in treatment. That's a good thing. However, if you take the figures 86-91-81, it represents just 73%, which means we are still a good ways away from the 90-90-90 target. The situation is improving, though. The figures we have now are encouraging, especially when it comes to individuals who sustain treatment. That's a good thing in Canada.
Nevertheless, as far as the criminalization of HIV non-disclosure is concerned, I strongly believe we need to reconsider the laws. We need to relax Criminal Code measures that target people with HIV. I would suggest that we look to other countries for inspiration. Cuba, for instance, did not criminalize non-disclosure and has made significant strides with respect to HIV/AIDS infection rates.
Canada has the ability to consider other dimensions as well. We can look at ourselves in relation to other countries such as those in Africa, where the situation is endemic. Although that's not true for the entire continent, it is the case in a number of countries. Considerable progress has been achieved there. HIV non-disclosure is not criminalized, and every effort is made to help people living with the virus, while providing them with support.
By criminalizing HIV non-disclosure here, in Canada, we are preventing people from living their lives freely and disclosing their status, all of which does more harm than good.
I don't want to monopolize the committee's time. I'm not sure whether my eight minutes are up, but that's what I wanted to say. Criminal Code provisions targeting people living with HIV/AIDS need to be reviewed and relaxed so that we can all work hand in hand for the better.
Good morning, Honourable Chair and members of the committee. Thank you for the invitation to present today.
My name is Haran, and I am the Executive Director at the Alliance for South Asian AIDS Prevention, also known as ASAAP since our humble beginnings in 1989. Today our programs are inclusive of not just South Asian communities but also a very diverse Middle Eastern community. This year marks ASAAP's 30th year of service to a now broader demographic of racialized individuals living with, affected by and at risk of HIV and AIDS. That was really our primary purpose in forming ASAAP.
In our nascent year, tragedy struck when a South Asian couple died from AIDS-related complications. Their deaths were the direct result of not being able to access life-saving treatment, medical attention and care linked to a language barrier and a lack of ability to navigate our health care system.
In response to their loss, a group of South Asian LGBT activists founded ASAAP to ensure a crisis like this would never happen again. We have a very high rate of success, with 95% of our clients maintaining a suppressed viral load, which means that HIV cannot be passed on during sexual intercourse. Moreover, HIV is considered a manageable chronic health condition by the Public Health Agency of Canada, which is excellent news.
However, attitudes toward people living with HIV have not kept pace with the science. There is widespread stigma and accompanying discrimination against people living with HIV, and people living with HIV regularly face heightened legal issues because of their HIV positive status. Although 95% of ASAAP's clients have a suppressed viral load, every one of them has faced HIV discrimination, including loss of jobs, abandonment by family, eviction, denial of health or dental care, treatment as criminals even when no crime has been committed, physical assaults after disclosing their HIV status, denial of immigration status and being outed as HIV positive by family members and former partners.
Within the past two years, amidst the cheering for undetectable equals untransmittable, ASAAP's tight-knit group of long-term survivors have attended the community memorials of several of their beloved peers, half of whom have died by suicide or by refusing to take treatment and medical care. Imagine that. In the age of U=U, people are still dying of AIDS-related complications.
Criminalization of HIV is making things worse. In addition to blatant cases of individual injustice, the over-criminalization of HIV is hampering the HIV response in Canada. We know that people in South Asian and Middle Eastern communities are avoiding getting tested because they fear that, once diagnosed with HIV, they will face further repercussions in the form of stigma and discrimination, criminalization, incarceration, rejection and severe isolation.
Criminalization of HIV promotes and maintains the stigma. It reinforces fear and ignorance of HIV and those living with it. Clients of ASAAP have repeatedly stated that it was not HIV but the stigma that killed their peers too soon, long before the current life expectancy of people living with HIV.
Clearly, people living with HIV and AIDS in Canada are not living the improved quality of life they should be living as members of one of the richest countries in the world. This is despite the availability of highly effective HIV drugs that have minimized the long-term side effects. If Canada, as a signatory to the UNAIDS 90-90-90 goals, wishes to honour its commitment, there must be immediate Criminal Code reform in order to remove the offence from the realm of sexual assault law and have it focus on intentional and actual transmission.
As of 2016, 86% of Canadians were tested for HIV; 81% of Canadians were on treatment and 91% of Canadians achieved viral suppression. While we are all well on our way to achieving the 90-90-90 goals, with the elimination of criminalization of HIV—a significant root cause of stigma that hinders care, treatment, support and prevention—Canada would be well positioned to reach, if not surpass, the 90-90-90 goals.
The federal Attorney General's directive on limiting HIV non-disclosure prosecutions in the territories where federal prosecutors handle Criminal Code cases was a step in the right direction, but more is needed, including reforms to the Criminal Code to further limit the currently broad scope of HIV criminalization in Canada.
Using the MIPA principles, the meaningful engagement of people with AIDS, it is imperative that reform take place in consultation with meaningful engagement of those living with HIV along with leaders in the legal, scientific and AIDS services organizations endorsed by the broader HIV community. Those reforms should achieve two things. First, they should put an end to the use of sexual assault law as the means of criminalizing HIV non-disclosure; and second, limit any use of the law to cases of intentional, actual transmission of HIV to another person.
Intentional insightful deliberations will yield the community- and government-led initiative to address the criminalization of HIV and in what section of the Criminal Code this law would rest. As a government who has continued to demonstrate care for the well-being of all, I encourage you to now strive to be the first country to implement a nationwide educational policy against HIV stigma and discrimination.
You will be well informed and will monitor their health with regular testing, and due to the use of widespread educational campaigns, our youth as tomorrow's leaders will model a more positive outlook on HIV that could release the shame, secrecy, and fear people may have when they were first diagnosed.
I'm grateful to you for affording me the opportunity to speak on behalf of ASAAP and advocate for the people who continue to come back day after day to our office trusting us to represent them with dignity, care and grace.
I now pass on to you that same hope that in your deliberations about this issue you will acknowledge that the overuse of criminal law against people living with HIV has greatly impeded the progress we have made and will continue to strip those living with HIV of the very things that promote life, liberty, and health.
Thank you very much.
Good morning, and thank you for the opportunity to appear before you today on this important issue.
In 2010, I was lead author on the first policy options report on HIV criminalization in Ontario, which addressed concerns that continue to be central to broader discussions about HIV criminalization in Canada today.
Our key arguments at that time were: first, that the criminal law disclosure obligation in Canada does not permit people living with HIV to determine with certainty when they are subject to criminal punishment for HIV non-disclosure; second, that the distribution of punishment for non-disclosure is uneven, with a heavy burden felt by marginalized and racialized populations; third, that the approach of the criminal justice system is insufficiently informed by up-to-date science on the risk of HIV transmission, resulting in unjust prosecutions; fourth, that the overuse of criminal law exacerbates stigma and damages HIV prevention care and support; and fifth, that sound, evidence-informed prosecutorial guidance is required to ameliorate these many problems.
Much has changed since those early days. There has been more research, advocacy and dialogue with provincial and federal authorities. There have been important legal developments, some troubling, such as the 2012 Supreme Court decision, others more promising, such as the federal directive, the 2017 Justice Canada report on non-disclosure of HIV, and the Ontario provincial policy announcement made in response to that report.
The most important change has surely occurred in the science of HIV transmission. As others who have appeared before me have made clear, a global scientific consensus has emerged that people living with HIV, who are virally suppressed, cannot transmit HIV. The extraordinary implications of that change have yet to fully register.
However, what seems clear is that moving forward, HIV non-disclosure will cease to be the matter of concern for state authorities that it has been in the past. The state, whether in the form of the criminal justice system or public health, will surely have more pressing matters to address than trying to govern the conduct of people living with HIV who cannot transmit the virus.
While there have been changes, much also remains the same. The concept of a realistic possibility of transmission continues the tradition of legal uncertainty about HIV non-disclosure. People living with HIV continue to be uncertain about their criminal law liability and courts have interpreted the concept in different ways, leading to differential judicial treatment across the country.
It is also the case that the legal concept of a realistic possibility of transmission more than ever lags behind the latest science on HIV transmission. The distribution of punishment for HIV non-disclosure continues to be skewed.
Over the years, research in Canada about the public health implications of HIV criminalization has accumulated. That suggests that HIV criminalization is a serious impediment to engagement with HV testing, care and support. Two Canadian studies have specifically examined the relationship between HIV criminalization and HIV testing, yielding findings suggesting that some people are unlikely to test because of fears about HIV criminalization.
Both used survey methods to study men who had sex with men. In one study, conducted in Toronto, 7% of participants stated that concerns about prosecutions made them less, or much less likely, to be tested for HIV. The authors then used a modelling approach to estimate that the reduction in testing could result in a potential 18.5% increase in HIV transmission.
In the other study, conducted in Ottawa, 17% of men who had sex with men stated that HIV criminalization affected their willingness to get tested. This group of participants was also more likely to have never previously had an HIV test and reported a higher number of sex partners in the two month period prior to the study, suggesting that those who are discouraged from testing, because of concerns about HIV criminalization, may be more likely to engage in HIV-related risks and therefore, be more likely to be unaware of their HIV-positive status.
Other HIV criminalization studies have looked at a range of topics, including the likelihood of disclosure, impacts on sexual risk taking, awareness of and perspectives on the law, experiences of stigma, impacts on HIV prevention counselling and clinical relationships, and the impact of HIV criminalization on the professional activities of public health workers and other providers.
These studies present findings that are relevant to the question of the impact of criminalization on access to and retention in care. A repeated finding is that some people living with HIV are afraid to speak openly about their sexual activities with public health and health care providers. These studies point to how criminalization can erode a sense of trust and confidence in the confidentiality of those relationships and can significantly hamper the ability to establish patient provider relationships in which people are able to talk about their sexual activities and their difficulties with disclosure.
Three reviews of this wide body of literature internationally emphasized that HIV criminalization provides no HIV prevention benefit and is associated with significant unintended impacts that interfere with public health efforts to prevent HIV transmission. An emerging perspective on the literature views HIV criminalization as a source of HIV stigma and therefore a structural impediment to the prevention, engagement, and care cascade, the single most important approach we have to responding to the HIV epidemic.
Taking this research into account the current situation might be described as a perverse form of injustice whereby the state’s criminal law disclosure obligation punishes people on the basis of the amount of virus they have in their body but also interferes with their very ability to achieve the low levels of virus required.
How are we to respond? The federal directive is an important step but there are problems related to its geographical reach. Pursuing more lasting and widespread change through criminal law reform is a vital option. The federal government can continue to display leadership on the issue by outlining key principles that would guide the direction of that reform. One is that it first be based on a process of consultation involving legal experts, people living with HIV/AIDS service organizations, affected communities, medical and health care providers, and public health personnel. Second is that it detach HIV non-disclosure from the Criminal Code offence of sexual assault. Third is that it reserve the use of the criminal law for the most blameworthy of circumstances, namely, when a person intentionally and actually infects another person with HIV.
Finally, the question of collaboration between public health and criminal justice must be regarded as a complex and sensitive issue. Public health and criminal justice are different systems for governing human conduct with different formal powers, conventions of practice, cultures, and recent histories. Moving forward, public health should not be regarded simply as an alternative policing method and public health guidance must emphasize the significance of voluntary testing, counselling, and support for managing the epidemic. How, whether and what form any collaboration should take between public health and the criminal justice system including, for example, the matter of safeguards and guidance for flows of information about viral load, is something that requires careful consideration and widespread consultation.
I'd first like to acknowledge the unceded, unsurrendered territory of the Algonquin people.
My name is Duane Morrisseau-Beck, and I am the President of the Ontario Aboriginal HIV/AIDS Strategy. I am an indigenous person living with HIV, commonly referred to as an IPHA, for the past 27 years. I want to declare that, pertaining to this intrusive approach to law, I am not an expert or a lawyer.
As an IPHA, similar to others like me, I have been on the front lines fighting this disease and other Canadian colonial violations against indigenous people since 1995. I understand the impacts of the law, both professionally and personally.
According to the Canadian Coalition to Reform HIV Criminalization, HIV criminalization, as defined in the “End Unjust HIV Criminalization” community consensus statement, is the unjust application of criminal law to people living with HIV based solely on their HIV status. This includes the use of HIV-specific criminal statutes and general criminal laws to prosecute people living with HIV for unintentional HIV transmission, possible or perceived HIV exposure, and/or non-disclosure of known HIV-positive status. HIV criminalization is a growing, global phenomenon that undermines both human rights and public policy, thereby weakening the HIV response.
Professor William Flanagan from Queen's University told committee members on April 9:
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.
Although we believe HIV criminalization impacts all genders among people living with HIV in the indigenous community, OAHAS would like to draw to the committee's attention the traumatic effects HIV criminalization has on HIV-positive women.
According to the 2017 national surveillance data, 31% of people with new HIV diagnoses were identified as aboriginal women. The 2016 national estimates were that 14,520 women with HIV and women aged 30 to 39 have the highest rates of HIV diagnoses. HIV estimates for women, since 2016, have increased from 23.4% up from 22.2%.
In Mr. Alexander McClelland's statement to the committee on April 9, he spoke about his doctoral research to examine experiences of people living with HIV across Canada who have been charged, prosecuted or threatened criminally in relation to alleged HIV non-disclosure. He discovered a wide range of experience and found that applying criminal law, specifically the law of sexual assault, causes greater harm, often exacerbating situations that are already marked by stigma, trauma, shame and discrimination.
It was also clearly stated to the committee on April 9, by Mr. Richard Elliott, the executive director of the Canadian HIV/AIDS Legal Network, that there is a “disproportionate impact of HIV criminalization on a number of different populations...among women who have been charged, indigenous women are disproportionately represented”. This is very alarming for OAHAS and the indigenous community.
The Public Health Agency of Canada estimates that between 5,100 and 8,000 women are living with HIV in Ontario. Indigenous women account for 4% of those newly diagnosed people. Transwomen are not described because there is no data collected on them, as noted in the 2015 briefing of the Ontario HIV Treatment Network.
Indigenous women are being diagnosed later, many at the AIDS stage. Aboriginal women are affected by HIV in ways that are unique to both their gender and cultural identities. Determinants rooted in the impacts of colonization have created entrenched poverty, social marginalization and unresolved trauma, which can increase their exposure to HIV/AIDS. For these reasons, aboriginal women’s position at the intersection of GBV and HIV/AIDS must be understood in the context of a colonized peoples.
We were optimistic to learn, in 2016, that Canada's former minister of justice and attorney general,, an indigenous woman, understood there was a problem with the over-criminalization of HIV non-disclosure and it further “stigmatizes those living with HIV or AIDS”.
In 2018 she issued a directive to the director of public prosecutions that applies only in Yukon, the Northwest Territories and Nunavut. Although the directive is viewed as a step in the right direction, this has caused some confusion in the indigenous HIV community in Ontario.
The historic relationship that indigenous people have with Canada is marred by human rights violations. These violations can be found in failed public policies like the Indian Act, residential schools and the policy of removing children which led to the sixties scoop. These failed public policies have caused overrepresentation of indigenous people in child welfare systems, jails, missing and murdered indigenous women and men, and in the high rates of chronic illness and infectious diseases observed among indigenous peoples.
As the only indigenous HIV organization in Ontario, OAHAS is implementing its five-year strategic plan, ending in 2024. One of our five goals is to provide information and supports to prevent the transmission of HIV and other STBBIs to indigenous people and indigenous communities. How are we to do this when criminalization undermines promotion and prevention work in the indigenous communities in Ontario? How will we meet UNAIDS' 90-90-90 targets or promote the U=U prevention campaign when we're dealing with an application of law that counters all our efforts as well as Canada's efforts? The outcomes of this overly broad application of criminal law are catastrophic and deter people from getting tested, accessing health care when tested positive or accessing antiretroviral treatment.
No other medical condition has been criminalized in the way HIV continues to be. If you don't tell your sexual partner you have HIV, you can be charged with aggravated assault and be registered as a sex offender. For members of the indigenous community who deal with daily stigma, trauma, shame and discrimination, this furthers the mistrust they already have for government's laws, policies and its institutions. The application of this law as it pertains to indigenous HIV-positive women should be viewed as a form of structural gender-based violence. Unwarranted criminalization has a devastating effect not only on those accused and convicted. It also has a highly detrimental effect on the broader HIV prevention and care initiatives. The unjustified application of criminal law is traumatic to HIV/AIDS-positive women and the HIV-positive community.
As a UN member state, Canada has pledged to promote social and legal environments supportive of and safe for voluntary disclosure of HIV, further to the 2016 political declaration on ending AIDS. The UN Committee on the Elimination of Discrimination against Women, UNAIDS and the Global Commission on HIV and the Law have also specifically recommended to Canada that it limit the scope of criminal law to those cases of actual intentional transmission of HIV.
In 2018, the Journal of the International AIDS Society, during the international AIDS conference, which I attended, announced an expert consensus statement on the science of HIV in the context of criminal law. That statement was endorsed by the International AIDS Society, the International Association of Providers of AIDS Care and UNAIDS, which are three leading global HIV scientific organizations. We want to thank the Canadian Coalition to Reform HIV Criminalization, which, along with partner organizations, is leading the charge on this important human rights issue.
Given that the election is happening in October of this year, it is OAHAS' recommendation that you work quickly with federal, provincial and territorial attorneys general to take the necessary steps within your respective areas of jurisdiction, and in consultation with people living with HIV, HIV organizations, service providers, women's rights advocates and science experts, to limit the unjust use of the criminal law against people living with HIV. OAHAS further recommends that any reform also remove the law from the realm of sexual assault.
In the 2015 mandate letter to the Minister of Justice and Attorney General of Canada, the wrote the following:
As Minister of Justice and Attorney General of Canada, your overarching goal will be to ensure our legislation meets the highest standards of equity, fairness and respect for the rule of law. I expect you to ensure that our initiatives respect the Constitution of Canada, court decisions, and are in keeping with our proudest legal traditions. You are expected to ensure that the rights of Canadians are protected, that our work demonstrates the greatest possible commitment to respecting the Charter of Rights and Freedoms, and that our government seeks to fulfill our policy goals with the least interference with the rights and privacy of Canadians as possible.
This statement generally articulates the true sentiments being expressed today. Canada's covenants to its citizens and people residing in Canada must be honoured. As section 35 rights holders of the Constitution Act, it is imperative that Canada end the unnecessary and intrusive attack on our communities and continue forging reconciliation, which will ensure the protection of IPHAs now and into the future.
Interference with the rights and privacy of Canadians should be a thing of the past. Please act in a manner that upholds our proudest legal traditions at the national and international levels.
As Eric mentioned, there is a stereotype in terms of who gets HIV, how they got HIV, and how they spread HIV. Those are, unfortunately, the historical accounts that have happened since the early epidemic, and they still maintain their way through. With the whole notion of criminalizing HIV as a virus, it continues to keep HIV as that dirty death sentence that is not going to change or that people aren't going to live active, healthy, long lives as people are now given the treatment and technologies that are available to individuals.
When you look at South Asian communities who test positive for HIV, for example, my staff take them to HIV & AIDS Legal Clinic Ontario or South Asian Legal Clinic of Ontario after they get diagnosed and before they even go to medical care, simply because they need legal advice in terms of how they disclose, when they disclose and to whom they disclose, and so that they're supported in that process knowing that I don't want my brown folks to face that racism that exists as well as being layered with HIV on top of that.
We have a significant issue. Again, because of the whole notion of criminalization and, again, based on the few stories that are reported in the media, a lot of people are fearful of getting tested for what that means to them in their lives in Canada. Many of our folks have lost jobs, and many folks have lost families and friends, so there's more of a deterrent to go get tested, and we're open about having conversations about a manageable chronic illness, as the Public Health Agency of Canada has stated. We should act in a responsible way of not criminalizing to aggravated sexual assault and look at what the accountability framework gives for an individual who has committed a crime.
Again, if we could really speak to the stigma and the discrimination and understand why people are doing what they're doing, then we're able to get them tested sooner. We're able to get them to access treatment sooner, maintain an undetectable viral sooner and allow them to be less of a strain on the medical system as well as the legal system and the complete health care system.
I listened to the other witnesses talking about their objectives. As I said in my opening statement, the criminalization of HIV non-disclosure significantly impacts prevention success rates.
Before coming to Canada, members of the African community were tested for HIV/AIDS in their home countries. If they're infected, they can't even obtain a visa. Even students who are infected aren't allowed to come.
When people reach out to Africans in Partnership Against AIDS, which is a Toronto-based association, we give them information pertinent to the situation in Canada. In their home countries, signs informing the public about the reality of AIDS are very visible. People know about the disease and take precautions. They talk about it with one another. As soon as they set foot on Canadian soil, however, there is nothing telling them that AIDS exists here as well. Most of the time, then, the members of our community are infected here, in Canada. We do our best to remind them that AIDS is a reality everywhere, in Canada and Africa alike, and that they need to take precautions.
We've started working with the Centre francophone de Toronto to provide people with information at points of entry such as airports. Those arriving in Canada for the first time deal with immigration officials. The kits they are given upon arriving now include information pamphlets. They indicate who to contact and provide guidance on what to do.
We educate them on HIV/AIDS so that they don't become infected, but if they do, we tell them where they can turn to access the services and support they need.
For the benefit of the committee, in the context of some of the previous questions, I think we might want to look at the notions of attempt. Attempt is outlined in section 463 of the Criminal Code, and that might address some of the concerns raised by Mr. Cooper. Also, if we are in the realm of sexual assault, there are the provisions about when you vitiate consent through fraud. Therefore, there are provisions already within the Criminal Code that could possibly address what was being raised.
I want to start with Mr. Vijayanathan.
Haran, I've heard of your reputation through my wife, who served as the chair of your board. I've seen your work in action both here and in Toronto. You're obviously very modest, because you neglected to mention the leadership role you took with the Bruce McArthur investigation and the serial killings in the LGBTQ2 community in Toronto. That was a significant leadership role in terms of liaising with municipal leaders, particularly law enforcement.
I salute you for that, but I want to ask how that connects here, because what we've heard a bit today but also in previous testimony is that it's one thing to have directives and it's another thing for them to percolate onto the ground.
Can you comment on the work that needs to be done to ensure that the police officers, the law enforcement officials and the Crown prosecutors are understanding the science and using it to inform their decisions to lay charges and proceed with charges?
With a whole missing person's case, it's actually police officers, front-line officers, who don't understand how people come in to report something that's happening. Then when they go out there, they're using laws that they might not understand, that have changed, and so on. For example, right now, police officers are directed to connect with the Crown in Ontario before they lay a charge. That's actually really good news, but only a few officers know that.
There's work being done that's really good in addressing it. However, these overarching principles and laws that exist allow for misinterpretation and misrepresentation within communities. If only a few people have that knowledge, that knowledge gets misused, and by the time an individual goes through the system and comes out at the other end, it's again reported in media in certain ways and then there is an impact on a lot more people. They're not going to get tested or they're going to actually delay getting tested, delay getting access to treatment and delay getting support.
That's how it plays out in the real-life world. Again, our justice system is fair and just. That's what I'd like to believe. We have processes in place, but as I said in my statement, if we can't engage and support individuals working together as community individuals, legal representatives and government officials to sit down and really look at local situations and have conversations and hash out how this is actually going to happen, taking from policy to practice is actually quite challenging. However, it becomes easier when you do it all together.
I want to come back to the crux of what we're actually looking at, which is whether or not we're promoting reforms to the criminal law.
My question is for Professor Mykhalovskiy.
In response to Mr. Cooper, you said earlier it was a legal question. I think it's more an ethical question, and that's why I want to come back to it. The criminal law is built on ethics. For me, there are two particular issues. One is, what is the standard we use to actually charge someone? Is it whether or not there's an actual infection? Then there's the question of whether there is intention. I think you are both saying that it should be both intention and actual infection.
Let me look at another scenario, an ethical scenario, for a sociologist. You have someone who has a viral load that is high, who is not on antivirals and who knows that they're infected. They engage in sexual behaviour that could transmit the disease—either vaginal or anal sex—with another individual. They're in a relationship in which they're peers, so nobody is coercing one another—and the other person says, “Are you infected with HIV? I want to make sure that you're not before I engage in sexual behaviour with you.” The person lies and says, “I am not infected,” in which case the person decides not to use a condom or to go ahead with something they wouldn't go ahead with, and the virus is then passed from one to the other.
There's actual infection and there is reckless behaviour. The person didn't intend to transmit the virus, but they engaged in reckless behaviour that led to the transmission of the virus. Can you explain to me why that person should not be prosecuted?
Good morning, everyone. I'd like to thank members of the committee for the opportunity to speak to all of you today.
My name is Shannon Thomas Ryan and I'm the Executive Director of the Black Coalition for AIDS Prevention, otherwise known as Black CAP. Black CAP is a non-profit organization with a mandate to address HIV in Toronto's African, Caribbean and black communities. We've delivered services for 30 years, and are the largest black-specific, HIV-focused organization in Canada. We work with more than 300 black people living with HIV every year.
I've led this organization for almost 13 years, and over this time I've witnessed the detrimental and significant impact that the criminalization of HIV non-disclosure has upon Canadians living with HIV and, more specifically, black Canadians living with HIV.
You've heard from a number of highly qualified witnesses about the issue, and I won't offer my thoughts on the science or the law. Other witnesses have accurately and adequately addressed advances in treatment, the science of viral transmission, the unjust nature of the law in this area and emerging thinking about appropriate responses to non-disclosure.
Black CAP strongly endorses these positions. We also endorse the brief on ending HIV criminalization in Canada recently submitted to you by the Canadian HIV/AIDS Legal Network. It reflects the thinking of our sector and sensitively considers the realities of people living with HIV in Canada.
Today I'd like to speak about the unique and specific impact that the criminalization of non-disclosure has on black people in Canada. As you may know, black people in Canada carry a significant burden of the HIV epidemic. According to the Public Health Agency of Canada, black people account for almost 22% of all HIV cases in our country, while comprising about 3.5% of the population. Black people in Canada also have highly disproportionate incident rates, about 6.4 times higher than people of other ethnicities living in Canada.
We also know that between 2012 and 2016 about a half of those charged with these crimes were black men. It's also important to highlight the media portrayal of black people in Canada charged in these cases. According to a 2016 report, black communities are differently portrayed in media narratives than others. The report cites that African, Caribbean and black men living with HIV are highly represented among racialized defendants, and while black men account for about 20% of people who have faced criminal charges related to HIV non-disclosure in Canada, they're the focus of about 62% of newspaper articles dealing with such cases. The report also indicates that there are more than 2.5 times the number of newspaper articles featuring black than white defendants. This is highly problematic.
We also know of many black defendants unjustly charged with sexual assault crimes who have been deported to their country of origin because of these charges, whether founded or not.
This tells us something very important about how black Canadians living with HIV are impacted by non-disclosure law. These realities support our assertion that black people in Canada carry a significant and disproportionate burden of the HIV epidemic and charges for non-disclosure.
I'd like to cite the recent ACCHO “Criminals and Victims?” report. Importantly, the report highlights the impact of racialization or the process by which non-white groups are designated as different and singled out for unequal treatment on the basis of their race, ethnicity, language, religion or culture. There's no doubt that the criminalization of HIV non-disclosure is a highly racialized issue when we consider the experiences of black people in Canada living with HIV. This racialization is created by sustained, institutional anti-black racism in Canada. In order to understand how the criminalization of HIV non-disclosure is a racialized issue and to develop appropriate interventions and responses, we must recognize the historical legacy of racism and injustice within which the contemporary criminalization of HIV exposure sits. Deep-seated and institutional anti-black racism has long been a feature of black people's interactions with police, courts and prisons, and for centuries in our country racist beliefs and practices have permeated our criminal justice system.
Today, the relationship between police and a broader criminal justice system and black people in Canada is more troubling than ever. We all know this. Racialized communities experience over-policing, and the practice of racial profiling is very well documented. Racialized people tend to be under-represented among lawyers, judges and juries, leading many accused people to feel that justice will not be done because the system does not understand or represent them.
Lawyers and judges are also criticized for relying on stereotypical attitudes and views of racial minorities and for failing to recognize or being unprepared to deal with issues of race and racism. As a result, although the Canadian justice system strives to provide an impartial adjudicative process that dispenses justice, regardless of race, it does not often deliver on its promise of equality, and often contributes to the marginalization of people of colour within Canada.
Moreover, the law has a difficult time taking into consideration the obstacles and limitations black people face within Canadian society. The criminal process is an adversarial one. Complex events, subject to multiple interpretations, are reduced to simple statements of fact. There is a perpetrator and a victim. One person is responsible; another is claiming redress. It is very difficult to fit into this tradition a nuanced and contextualized understanding of HIV disclosure, and sex and intimate interpersonal encounters, mediated with gender roles.
We would also like to reiterate that the criminalization of HIV non-disclosure in any form is at odds with public health objectives that our organization works to uphold. As it is, HIV is highly stigmatized in black Canadian communities. Black CAP struggles with discussions about the basics of HIV prevention and treatment, the importance of HIV testing and the value of disclosure. However, the legitimate fear of prosecution of black people in Canada living with HIV strongly deters people from testing, treatment and disclosure.
HIV criminalization can also deter access to HIV care and treatment by undermining Black CAP's work with people living with HIV. Prospective clients have simply chosen not to engage with health care professionals due to this environment and this makes our work much more challenging.
We strongly believe that public health approaches, especially approaches that include collaboration between front-line and community-based organizations and public health teams, are a much more appropriate response to non-disclosure. We've seen the best outcomes when Black CAP staff, who share similar identities with black HIV-positive folks, have collaborated with public health staff to provide supports, facilitate disclosure, manage viral load and reduce the likelihood of transmission to a negative partner. This is one of the ways to effectively and meaningfully address the drivers of non-disclosure. However, we do recognize that other drivers that limit one's ability to attain an undetectable viral load, such as immigration status, housing, health care and health treatment access, also exist.
You also asked witnesses to speak to the best way to improve co-operation between the criminal justice system and public health authorities. We strongly believe that there is a significant and pressing need for a frank examination of the realities of pervasive and deeply rooted anti-black racism in Canada, within these institutions. We seek your leadership in this area.
We also believe that Criminal Code reform is urgently required, in consultation with the HIV community, in order to remove the offence from the realm of sexual assault law. We are highly concerned that Canada has the unfortunate distinction of being the world leader in the persecution and prosecution of people living with HIV, and we call on the federal government to use any means at its disposal to repair the damage it has done to those living with HIV. This includes adhering to the directives from the legal networks providing briefs to this committee, calling for the creation of evidence-based prosecutorial guidelines, the reform of the Criminal Code, and resources, such as training.
We also ask that such training include a focus on anti-racism and its specific and unique impact on black and indigenous communities in Canada. This should also be done in collaboration with organizations such as the Canadian HIV/Aids Legal Network, HALCO, Black CAP and others, researchers and academics and most importantly, people living with HIV.
Finally, I would really like to recognize the advocacy efforts of leaders such as Richard Elliot from the Canadian HIV/Aids Legal Network, Ryan Peck from HALCO, Jonathan Shime and others who have represented the HIV sector in communities so ably. Their advocacy efforts have resulted in meaningful debate on this issue. Most importantly, we need to recognize black people living with HIV, who have been unjustly charged with these crimes, publicly shamed, had their lives turned upside down and spent time in prison. They have suffered the unfair impact of unjust laws. We call on you for action in this area.
Thank you, again, for the opportunity to share my thoughts on this issue. We appreciate the opportunity.
On behalf of Egale Canada, I would like to thank the chair and the members of the committee for the opportunity to speak today on this fundamental issue of human rights and public health.
In 2017, Egale’s Just Society Committee published a report reviewing Canada’s criminal justice system and identifying provisions of the Criminal Code that have a discriminatory effect on LGBTQ2SI Canadians and that are therefore in need of reform.
That report identified Canada’s criminalization of HIV non-disclosure as a key area for change. Consistent with the report’s recommendations, Egale fully endorses the community consensus statement of the Canadian Coalition to Reform HIV Criminalization.
In particular, Egale’s position emphasizes that, first, any use of the criminal law should be limited to actual and intentional transmission of HIV. Second, in keeping with the “Expert consensus statement on the science of HIV in the context of criminal law”, in no circumstances should the criminal law be used against people living with HIV who use a condom, practise oral sex, or have condomless sex with a low or undetectable viral load for not disclosing their status to a sexual partner. Third, the offence of sexual assault must not be applied to HIV non-disclosure in the context of sex between otherwise consenting adults, as it constitutes a stigmatizing misuse of this offence. Reforms must ensure that they do not further stigmatize people living with HIV or undermine protections against sexual violence.
Egale’s position is informed by the reality that the criminalization of HIV non-disclosure discriminates. It disproportionately affects already marginalized populations and contributes to their marginalization.
To begin, the criminalization of HIV non-disclosure cannot be separated from the discriminatory stigma that attaches to HIV. It is important to recall the historical context. Homophobia marked the response to HIV from the outset, when the first cases of the illness were reported in 1981. At first, it was labelled “gay-related immune deficiency” or GRID.
Further, criminalization of HIV non-disclosure continues to have a disproportionately harmful impact on marginalized people, including members of the LGBTQ2SI community. Troublingly, some of these inequalities have only become worse since the Supreme Court of Canada’s decision in R. v. Mabior.
As set out in “HIV Criminalization in Canada: Key Trends and Patterns”, which was included in the materials submitted to the committee by the Canadian HIV/AIDS Legal Network, black men are overrepresented in the prosecution of HIV non-disclosure, especially since the Supreme Court of Canada’s decision in Mabior. They are also significantly overrepresented in media coverage, contributing to intersectional stigma and prejudice.
Nearly half of the women charged with this offence are indigenous.
Criminalization of HIV non-disclosure also continues to cause particular harm to gay men, bisexual men and other men who have sex with men. According to the Public Health Agency of Canada’s 2017 surveillance report on HIV in Canada, the “gay, bisexual and other men who have sex with men” exposure category continued to represent almost half of all reported HIV cases in adults at 46.4%. As such, the threat of criminal prosecution disproportionately affects the lives of gay men, bisexual men and other men who have sex with men.
As noted by the key trends and patterns document, men who slept with men represented 25% of all men charged from 1989 to 2016, and post-Mabior, the numbers increased significantly to 38%.
Finally, to date, consideration of the impact of criminalization of HIV non-disclosure on members of the trans community in Canada has been woefully inadequate. However, there are strong indications that such criminalization harms transwomen in particular.
The Public Health Agency of Canada’s 2012 population-specific HIV/AIDS status report on women noted that it found no Canada-specific data on HIV prevalence among transwomen, but that a meta-analysis estimated a particularly high HIV prevalence rate of 27.7% among transwomen in North America.
Further, the academic research on the experiences of transwomen who have sex with men has found that their experiences of violence, transphobia and stigma, depressive symptoms, substance use, unstable housing and extreme poverty contribute to HIV-related sexual risk behaviour. These factors often cluster together.
Egale echoes concerns about the failure of HIV policies to take into account the lived experiences and perspectives of the trans community that have been raised by community activists Nora Butler Burke, Professor Zack Marshall and Professor Viviane Namaste, the research chair in HIV/AIDS and sexual health at Concordia University.
In short, people who are already marginalized face a disproportionate risk of contracting HIV. Risk factors for HIV are often interrelated circumstances of marginalization. For example, members of the LGBTQ2SI community include injection drug users and sex workers. Criminalization of these already marginalized communities only adds to their social exclusion, fuelling stigma and frustrating public health initiatives.
The LGBTQ2SI community knows all too well the harm of being criminalized based on existing grounds of social exclusion. As such, the criminalization of non-disclosure of HIV status is an issue of critical concern to the LGBTQ2SI population.
Egale is encouraged by the directive to the federal prosecution service and recognizes that it is a step in the right direction. However, more needs to be done. In terms of its content, the federal directive does not fully reflect the principles in the community consensus statement. For example, it calls for prosecutorial judgment regarding the types of activities triggering criminal liability and the use of sexual assault offences.
Further, because it is drafted as guidance to prosecutors, it does not set clear standards for what constitutes criminal conduct.
Most significantly, the federal directive, which applies only in three territories, does little to meaningfully curb prosecutions. Although the federal directive is a positive step forward, legislative action is required to ensure clear and uniform application of the criminal law across the country; to constrain the application of the criminal law to cases of actual and intentional transmission of HIV; and to build upon and make durable the federal directive's positive step forward.
Finally, while it is Egale's position that amendments to the Criminal Code are necessary, it is also essential that these be carefully considered and developed in consultation with people living with HIV, medical experts, legal experts and community stakeholders. The much needed amendments must be crafted to avoid perpetuating stigma toward people living with HIV and continuing to thwart public health initiatives.
In terms of immediate action, while a legislative solution is developed, Egale calls upon the federal government to actively encourage the provinces to adopt similar directives or directives more consistent with the community consensus statement.
Thank you. I hope you can hear me. Please let me know, or interrupt me, if you cannot.
Good morning, everyone.
My name is Kate Salters. I'm a Ph.D. trained infectious disease epidemiologist working as a research scientist at the B.C. Centre for Excellence in HIV/AIDS and a faculty member at Simon Fraser University within the faculty of health sciences.
Thank you very much for inviting me to speak with you, despite the technical difficulty.
I would like to first acknowledge the land and territories on which we gather today. It is critical to reflect on the role of colonialism in the disproportionate burden of HIV among indigenous populations nationwide.
During my brief time with you, I hope I'm able to impress on you the overwhelming evidence that challenges the criminalization of non-disclosure of one's HIV status. I will demonstrate how the law poses direct and significant barriers to our prevention efforts and provides barriers to clinical care for those living with HIV.
I'm here on behalf of and speaking on behalf of many other scientists, community members and clinicians with whom I have consulted who have witnessed the impact these laws have on our communities and the way they threaten our public health efforts.
Quite frankly, the law does not reflect reality or science. There is overwhelming scientific evidence demonstrating that when a person living with HIV is on treatment, antiretroviral therapy, not only does their health and longevity improve, but HIV replication is halted. Antiretroviral therapy drives HIV to undetectable levels in biological fluids, including blood, semen and cervical-vaginal fluid. Having an undetectable viral load is the goal of antiretroviral therapy and means that HIV cannot be transmitted to a sexual partner. I know you've heard this before, but it's very important to reinforce. This double benefit of antiretroviral therapy is known as “treatment as prevention”, or TasP, a made-in-Canada strategy formally endorsed by the World Health Organization, the UN and the Government of Canada since 2015.
My organization originally postulated the TasP strategy in 2006. Implemented in B.C., it has subsequently led to the largest decline in new HIV cases in this country. This phenomenon is not new. In 2014, 70 Canadian scientists signed a joint statement affirming the negligible possibility of sexual HIV transmission by a person living with HIV who is receiving antiretroviral therapy or uses a condom. This was five years ago. There have been at least 12 non-disclosure cases since then.
That was as of 2017, as reported by the Canadian HIV/AIDS Legal Network. Since then, major international studies have definitively confirmed that consistent and sustained antiretroviral therapy stops the onward transmission of HIV. Most recently, the partner study assessed HIV transmission amongst zero-discordant gay couples, meaning one partner was living with HIV on treatment and the other was HIV-negative.
Scientists measured more than 77,000 episodes of sex in which a condom was not used. How many transmission events were observed between study participants? There were none—zero cases. To add, previous partner studies have shown no cases of HIV transmission between zero-discordant gay and straight couples after observing over 58,000 acts of condomless sex. In other words, undetectable means HIV is untransmittable, or U=U.
The Honourable acknowledged the science behind the U=U message to end stigma and in 2018 became the first minister of health to officially endorse the campaign, demonstrating Canadian leadership on science-informed health policy.
In stark contrast to these efforts, the current Criminal Code perpetuates HIV-related stigma, leading to significant delays or total lack of testing. As a result, individuals living with HIV will not initiate treatment in a timely manner that eliminates the risk of onward HIV transmission. The virus rapidly replicates during acute or early infection. Eliminating delays to diagnosis and connecting people to care are the steps needed to eliminate the HIV epidemic in Canada.
Women are especially at risk of delays in access and care. This is linked to many factors, including HIV-related stigma, poverty and poor understanding of the needs of women living with HIV.
A study conducted by our organization found that of nearly 1,000 participants, significantly more men than women living with HIV, 65% versus 45%, reported fulfilling the current legal requirement to have both a low viral load and condom use with a new sexual partner. This was despite the fact that nearly 100% of the participants reported doing either one or the other. This means that despite taking the established steps needed to guarantee the elimination of transmission risks, more than half of the female participants in our study could have been at risk of being charged with aggravated sexual assault.
The current law fails to address how women, particularly cis women and transwomen, may not be able to safely negotiate condom use with their sexual partners. These real, gendered risks are not reflected in the current interpretation of the law. Research conducted by me and colleagues found that over 80% of women living with HIV in B.C. have reported experiences of violence in their lives. Similar studies have been published, across the national cohort of over 1,400 women living with HIV, showing very similar statistics. More recently, we have shown that over 60% of women living with HIV have experienced sexual or physical intimate partner violence, suggesting huge inequities in sexual relationships. Women have reported being threatened, assaulted, abandoned and outed as being HIV-positive after disclosing their HIV status to sexual partners. Women living with HIV may, then, instead choose to take actions within their control in order to eliminate the risk of HIV transmission onward by maintaining an undetectable viral load, or using condoms.
It is naive and inappropriate to assume that women living with HIV should be legally required to ensure that their male sexual counterparts use condoms. Under the current interpretation of the law, a woman with undetectable HIV who is unable to convince her male sexual partner to use a condom may be charged with aggravated sexual assault. She would then be classified as a violent sexual offender despite having no intention of transmission and there being no risk of HIV transmission. Nevertheless our research shows women living with HIV are doing everything in their power, through adherence to antiretroviral therapy and sustained virologic suppression, to eliminate the risk of onward HIV transmission.
Relying on an undetectable viral load is an empowering and effective way for women living with HIV to reduce the risk to themselves and others. Aggravated sexual assault is among the most serious offences within the Criminal Code and should be applied when the perpetrator wounds, maims, disfigures or endangers the life of the complainant. This law has been used by disgruntled former partners as a form of violent retribution against people living with HIV. This law stigmatizes people living with HIV. This law prevents people from getting tested and treated. It is imperative that we stop erroneously using this law to criminalize the sexual behaviour of people living with HIV.
Thank you for your time.