Evidence of meeting #142 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was non-disclosure.
A recording is available from Parliament.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
One of the other things that came up in our conversations in the north was the status of the prosecutorial directive. The question was whether we should go and do a bunch of education.
What status does this have in law? Is this likely to change? Could another Attorney General or another government revoke this directive?
I'm not sure who's the expert here. Mr. Kirkup, perhaps you are. What's the legal status of this directive? How firm is the prosecutorial directive?
Prof. Kyle Kirkup
I don't think it's very firm at all, because if another government comes to power, the prosecutorial directive could be changed fairly easily. In the way that it was created, it could be taken away without any kind of a formal process.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
A third thing we talked about, then, was capacity building in rural, remote and indigenous communities, both in dealing with HIV and generally in the LGBTQ community, and the fact that—as has historically been true—upper-middle-class gay white men dominate the organizations and the flow of funds to actually deal with these kinds of questions to rural and remote communities is quite limited.
One of the things that was suggested was that, in the new fund Mr. Boissonnault's secretariat has, there be some kind of earmarking of funds for rural, remote and indigenous LGBTQ and HIV organizations to build their capacity.
My question is to Mr. Bilodeau in terms of the Ontario AIDS Network.
How do you see the flow of resources in capacity building in these areas?
National Coordinator, Positive Leadership Development Institute Program, Ontario AIDS Network
Through leadership programs and workshops, we're trying to give opportunities to each different priority populations to express and develop their tools so that they can become leaders in their own community and move forward that agenda. Another situation is in regard to B.C. and to more remote populations, where the PLDI program has really had an impact on people who started their own agencies and their communities and such. I think that's what I can say for now.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Mr. Elliott, in terms of access to anonymous testing, I've had people say to me that everyone has access to testing. What would your response be to that?
Executive Director, Canadian HIV/AIDS Legal Network
I don't think that's true. I think it depends on where you are, to go back to your point about rural and remote communities. The reality is that even if you do have access to anonymous testing, if you test positive, once you want to get connected to treatment, your anonymity will be gone. There will be a record in the health system that you have HIV. There will be records of your viral load over time, assuming that you have access to viral load monitoring. That material will be and has been subpoenaed for use in criminal prosecutions, so it doesn't get us out of the bite.
Liberal
Colin Fraser Liberal West Nova, NS
Thanks very much, everybody, for coming here today and helping us understand this better.
I'd like to start with you, Mr. Kirkup. You suggested that the modifications or reforms to the Criminal Code should ensure that the only cases criminalized are those where there is actual and intentional transmission, and then you referred to section 265(3)(c), dealing with fraud. Is that the only thing you think would need to be changed in the code in order for what you'd like to see, the actual intentional transmission, to be fulfilled?
Prof. Kyle Kirkup
That's an interesting question. I think we still, in terms of procedure, have to have the right actors around the table before we make that decision, because this is a complex issue. However, if you were to ask me if I could connect the dots to the harms of the use of aggravated sexual assault as the operative offence, the bull's eye on this would seem to be section 265(3)(c). That's the provision that the Supreme Court interpreted to include HIV non-disclosure of status, which would vitiate consent, turning what would otherwise be consensual sex into aggravated sexual assault.
If I were thinking about where we ought to go, the interpretation of the fraud provision seems to be the clearest path, but I would want the right experts around the room. I'd want people living with HIV. I'd want women's rights organizations, HIV-sector organizations, other criminal law experts, to think more about that, but that would be my initial impression for this committee.
Liberal
Colin Fraser Liberal West Nova, NS
I take it from what you're saying that anything below that standard should not be criminalized at all. Mr. Cooper referenced negligence or recklessness or other standards of mental elements in a criminal matter. You would think anything below actual knowledge would be insufficient to be part of the criminal law?
Prof. Kyle Kirkup
Yes, that's my position, and it goes back to the point I made. I teach first-year criminal law at the University of Ottawa, and one of the basic precepts of criminal law is that you're supposed to be able to pick up the code, go to the relevant offence, and make a decision about whether or not to commit the act. You can't go to the code at the moment and figure out when you're legally required to disclose your status, because this amorphous leaning on aggravated sexual assault and a realistic possibility of transmission is not generally understood. People living with HIV don't know what that means. Police officers don't know what that means. Crowns don't know what that means.
If we're committed to clear, consistent guidelines set out in the Criminal Code, that's the direction I think we need to go in.
Executive Director, Canadian HIV/AIDS Legal Network
If you want to oust the use of sexual assault provisions, then addressing how fraud has been interpreted in the assault provision in section 265 is a way to do that, as Professor Kirkup has mentioned. That's an important objective. However, think about, as has also been mentioned, limiting the scope of criminal law generally, whether it's under sexual assault law or other offences, to only those cases of intentional actual transmission is another important objective.
We can do part of the job by dealing with the sexual assault law as it has been interpreted through the courts, but that's only part of the job. We need to think about how we can make sure that other provisions in the criminal law are not used in an equally broad fashion, albeit without some of the equally harsh consequences like sexual-offender designation. There will still be problematic, overly broad use of the criminal law unless we limit it through other potential amendments to intentional and actual transmission.
Liberal
Colin Fraser Liberal West Nova, NS
Do you know how many cases there have been in Canada that would meet that high standard of actual intentional transmission?
Executive Director, Canadian HIV/AIDS Legal Network
There have been very few, and I'd say there are very few in the world. That's because, to go back to what Alex said, this notion of a person living with HIV intentionally trying to infect other people is actually something of an urban myth. There may be the occasional isolated case where such a thing happens, but it is not by any means the predominant set of circumstances captured by the broad scope of the criminal law as it currently stands.
Liberal
Colin Fraser Liberal West Nova, NS
Mr. Elliott, I'll stick with you.
Mabior in 2012, as I understand it, was meant to clarify the Cuerrier decision in 1998. I don't know how successful it was in assisting people in understanding what the threshold is.
But since 2012, my understanding is that there's been a decline in the number of non-disclosure of HIV cases.
Is that connected to the Mabior decision or are other reasons at hand?
Executive Director, Canadian HIV/AIDS Legal Network
I think that's a really great question. Probably multiple factors are at play that explain what you have observed.
The first thing that I would note, if you look at the trends and patterns document that I shared with you, in the immediate aftermath of the Mabior decision, because of a problematic and very wonky interpretation of the Mabior decision, there were at least 10 cases in which people were charged even though they had an undetectable viral load, meaning there was effectively no risk of transmission. Nine of those were in Ontario.
In the years following that, we have seen a reduction in the number of prosecutions coming forward. I think that is in part because of the advocacy work that has been done by organizations supporting defence lawyers and equipping them with the latest available science. That science has increasingly become clear and communicated to decision-makers like prosecutors in some jurisdictions. It has been possible to convince them that okay, maybe charges shouldn't be going forward in cases where someone has an undetectable viral load because there is no risk of transmission in such a circumstance.
There's been a lag for the criminal justice system to catch up with where science has evolved. But in too many cases we're still seeing that the science is accepted on some fronts like the viral load issue. But the equally strong science about the effectiveness of condoms is still not being accepted by prosecutors in many jurisdictions. People who are using condoms are still being prosecuted, even though this has been the HIV prevention measure recommended over and over again, from the beginning of the epidemic. People are acting responsibly by using condoms yet are still being criminalized as if they're violent rapists. That to me seems a real mismatch.
Liberal
Colin Fraser Liberal West Nova, NS
I have one other quick question for everyone, if you could chime in.
Is there a model jurisdiction in the world where this is dealt with?
You talked about the United Kingdom. We know there are different directives across Canada.
Executive Director, Canadian HIV/AIDS Legal Network
We couldn't point to one model jurisdiction. I think there are a few where there are good features we could learn from and adapt to the Canadian context.
The U.K., specifically England and Wales, is the first jurisdiction to have adopted a guidance for its prosecutors. It has been helpful. It has not been a full solution to the problem, which is a lesson we should learn from Canada, if we needed more evidence from beyond our own borders about how directives are insufficient in themselves, important though they may be.
We can also look to jurisdictions like California, for example, that has a fairly narrowly crafted offence in its law about when criminal charges may apply. I don't suggest every feature of the California legislation should necessarily be replicated here. I think there's room for improvement. It is an example of a jurisdiction where they have taken a much narrower approach to when the criminal law might be applied. We could look to a few of them in coming up with something that fits in our legal context here.
Liberal
The Chair Liberal Anthony Housefather
Yes.
Thank you very much. Everybody on this panel was incredibly helpful. You gave excellent testimony. We really appreciate it. I think it will help the committee very much in our deliberations.
I will ask members of the next panel to come forward. We will briefly recess for a second while we change the panels.
Liberal
The Chair Liberal Anthony Housefather
We will resume.
It is a pleasure to be joined by our second panel of the day.
We have with us Léa Pelletier-Marcotte, a Lawyer and Coordinator for the Human Rights and HIV/AIDS Program at the Coalition des organismes communautaires québécois de lutte contre le sida.
Welcome, Mrs. Pelletier-Marcotte.
Léa Pelletier-Marcotte Lawyer and Coordinator, Programme Droits de la personne et VIH/sida, Coalition des organismes communautaires québécois de lutte contre le sida
Thank you.
Liberal
The Chair Liberal Anthony Housefather
By video conference, we have Prof. William Flanagan, who is the dean of the Faculty of Law at Queen's University.
Welcome, Dean Flanagan.