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Results: 1 - 15 of 830
Eric Mykhalovskiy
View Eric Mykhalovskiy Profile
Eric Mykhalovskiy
2019-05-14 9:02
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.
Thank you.
View Randall Garrison Profile
NDP (BC)
Thanks very much, Mr. Chair.
I want to thank the witnesses for being here today. I know it was a concern of many committee members, since marginalized Canadians are quite often subject to prosecution, that we hear from those communities, so it's very important for you to be here today.
I want to start by asking a question that surrounds the context of barriers to testing. From my experience, people who are marginalized already face a lot of barriers to testing, and this becomes yet another barrier.
I'm going to start with Mr. Morrisseau-Beck.
When I was visiting some northern communities and talking about AIDS treatment, they were talking about things like the reluctance of people to go to health professionals in small communities because of the stigma and the “my auntie works there” factor. I just wondered whether you could comment on the access to testing and treatment barriers that already exist without the criminalization.
Duane Morrisseau-Beck
View Duane Morrisseau-Beck Profile
Duane Morrisseau-Beck
2019-05-14 9:33
That's a very good question, and a very quick answer is that the Ontario Aboriginal HIV/AIDS Strategy is working on looking at various testing simply because, within our communities, we are already stigmatized and discriminated against, and access to health care within the northern communities is another level of barriers.
We are working with partners in the different jurisdictions where we provide services to look at how we can eliminate some of those barriers. Part of that is education to indigenous peoples, so that's sort of where we're at right now.
This has been going on for a very, very long time since the epidemic earlier on. I remember when I was tested positive, it was very difficult to access these different types of services and programs. In that context, we are just sort of starting that process of trying to look at what those barriers will be and trying to eliminate them.
Thanks.
Haran Vijayanathan
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Haran Vijayanathan
2019-05-14 9:35
As I said, the whole “auntie works there” phenomenon happens in South Asian and Middle Eastern communities as well, especially if they're new to the country or they're trying to figure out their ways.
Oftentimes a barrier to testing, especially for international folks and international students particularly, who are coming into this country spending double the tuition fees, is that they are not getting accurate, effective insurance coverage for testing and access to treatment, etc. Those are all barriers.
Again, when you add the criminal factor to it, committing a crime has far more of a wall to overcome than some of those other issues. We, as social service organizations, can work with individuals when they present themselves to overcome some of the other barriers and challenges based on the availability of services, but that criminal barrier really makes it a further jump, and again, it's our connection to HIV/AIDS legal clinics that help us with that.
View Randall Garrison Profile
NDP (BC)
Mr. Morrisseau-Beck, would you have any comment on the other aspects of the criminal law that might impact access to services or testing?
Duane Morrisseau-Beck
View Duane Morrisseau-Beck Profile
Duane Morrisseau-Beck
2019-05-14 9:37
We work with marginalized populations, those who are homeless and those who are working in the sex trade. I think just engaging with them under the auspices of criminalization makes it quite hard for us to engage with that population if they're already involved in the justice and criminal processes. I would say that for us it's difficult to actually work with these individuals. Again, as I said in my statement around the trust factor, trying to build trust with those populations with criminalization on top, it's very difficult.
View Randall Garrison Profile
NDP (BC)
I was just going to ask Ms. Ongoiba the same question about barriers to testing in the African Canadian and Carribean community.
Fanta Ongoiba
View Fanta Ongoiba Profile
Fanta Ongoiba
2019-05-14 9:38
All right. Thank you.
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.
Kate Salters
View Kate Salters Profile
Kate Salters
2019-05-14 10:32
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 Ginette Petitpas Taylor 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.
View Ali Ehsassi Profile
Lib. (ON)
View Ali Ehsassi Profile
2019-05-07 9:30
Thank you, Mr. Chair.
My first question is for Mr. Brett and Mr. Hosein.
I reviewed your 2019-20 strategic plan. In that plan, you note that there are a number of policy gaps that inhibit the reduction of HIV in marginalized communities. Could you elaborate on those gaps?
Andrew Brett
View Andrew Brett Profile
Andrew Brett
2019-05-07 9:30
There are many gaps. Actually, for a high-income country with a strong health care system, Canada is surprisingly doing pretty poorly in terms of access to testing, treatment and care. Just to compare, Robin had mentioned earlier that we have committed ourselves to the global strategy of achieving 90% tested, 90% on treatment and 90% virally suppressed. In Canada, altogether, only 63% of people living with HIV are virally suppressed, and that's because of a lack of access to testing and a lack of access to treatment. If you compare, in the United Kingdom, 97% of people living with HIV who are on treatment are virally suppressed; in Canada, it's only 91%.
We have a public health care system, so that should not be a thing in Canada. Really, it comes down to access to treatment and care. For example, if you look at indigenous communities, in terms of access to testing on reserves and access to treatment on reserves, for some communities, it's not possible to see an HIV specialist. These are the types of barriers we're seeing across the country.
View Randall Garrison Profile
NDP (BC)
As well as decriminalizing non-disclosure, there are some other aspects of the Criminal Code that affect access to testing and treatment.
Khaled Salam
View Khaled Salam Profile
Khaled Salam
2019-05-07 9:38
I think this new directive is a big part of it.
One of the things I can share with you in terms of what we have noticed is probably the most powerful.
Very quickly, last year in Ottawa was our year of U=U. We did a lot of work with our community partners around “undetectable and untransmittable”. Since the messaging has been out there and there has been an official endorsement by the Canadian government, the shift we have seen in people living with HIV, and also people who are at risk and don't know about their status, has been massive and significant. We have done art projects around it, in terms of how this has impacted lives. We have talked to people at risk in terms of whether they are more comfortable getting tested for HIV now, or if they feel it has made a difference. The answer has been overwhelmingly, yes.
Now I know that if I get tested and I am positive and have the opportunity to go on treatment and be undetectable, I'm no longer a vector of transmission. There's a much smaller chance of being criminalized in terms of passing on the virus to someone else. It's made a massive, massive difference in that particular way.
In terms of other aspects of the Criminal Code, I am not a lawyer. I think folks from CATIE mentioned that the experts on that are HALCO, the HIV and AIDS Legal Clinic Ontario, for example, and the Canadian HIV/AIDS Legal Network. They would be much better suited to answer that particular question.
The one thing I can tell you is that sexual assault law needs to be completely removed from any cases that involve HIV non-disclosure.
View Randall Garrison Profile
NDP (BC)
In your work, do you find that the criminalization of drug use and the criminalization of sex work inhibit access to treatment?
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