I'd like to begin by thanking the chair, the clerk and all the committee members for inviting the Coalition des organismes communautaires québécois de lutte contre le sida, or COCQ-SIDA, to share its views on the criminalization of HIV non-disclosure, specifically in relation to the recent directive issued by the former Attorney General of Canada.
Since being tasked with responding to the criminalization of HIV exposure, the COCQ-SIDA has publicly and consistently objected to the use of criminal charges as a way to deal with the HIV and AIDS epidemic, for both public health and human rights reasons.
As a member of the Canadian Coalition to Reform HIV Criminalization, the COCQ-SIDA fully endorses the Community Consensus Statement published in November 2017 and signed by more than 170 organizations to date.
In the statement, the coalition called on the Attorney General of Canada and provincial attorneys general to develop prosecutorial guidelines based on current scientific knowledge in order to end the unjust use of the criminal law against people living with HIV.
The COCQ-SIDA therefore welcomed the federal directive providing prosecutorial guidance issued by the former Attorney General of Canada in December of last year. The directive essentially builds upon the findings of Justice Canada's December 2017 report, “Criminal Justice System's Response to Non-Disclosure of HIV”.
According to the report, the criminal law should apply neither to persons living with HIV who have maintained a suppressed viral load—in other words, under 200 copies per millilitre of blood—nor to persons living with HIV who are on treatment, use condoms or engage only in oral sex unless other risk factors are present. In both cases, there is no realistic possibility of transmission.
The federal directive goes further in limiting the use of the criminal law against people living with HIV than does the measure adopted in Ontario, which established a moratorium on prosecuting individuals for HIV non-disclosure in cases where the individual has maintained a suppressed viral load for six months, regardless of what the sexual activity was, whether a condom was used or whether the person was receiving treatment.
Now I'd like to talk a bit about the situation in Quebec. Even though the COCQ-SIDA has been calling for a directive limiting the use of the criminal law in cases of HIV non-disclosure for nearly a decade, no formal measures have been adopted or issued.
That doesn't mean, however, that nothing has been done. Efforts have been made over the years to limit prosecution in HIV-related cases. A stakeholder working group was set up to bring together representatives across sectors—government, justice, health, public safety and community. The objective was to take account of recent criminalization developments, the negative impact of criminal prosecution on public health and current scientific knowledge on HIV.
Quebec's justice ministry and Office of the Director of Criminal and Penal Prosecutions cited other reasons for not adopting a specific directive, primarily an insufficient number of reported cases. By our count, however, approximately 13 cases of HIV non-disclosure have been prosecuted since the 2012 Mabior and D.C. decisions. That said, Quebec has nevertheless made efforts to limit the use of the criminal law, including the appointment of designated prosecutors for HIV-related cases.
Despite our repeated demands, however, Quebec appears to have no plans for a clear prosecutorial directive as of now.
In the absence of a clear public directive, a person cannot know for sure whether their behaviour could lead to criminal charges. The lack of a clear directive can give rise to ill-advised situations within the provincial justice system, situations that illustrate genuine confusion or cast doubt on the appropriateness of existing guidelines. I'll give you an example.
In recent months, we've seen prosecutions being dropped after the attending physician of the accused confirmed the individual's viral load and the absence of any transmission risk. Had there been a clear directive in place, these prosecutions would have been avoided altogether, not to mention all the trouble caused to the accused. Of course, we were still glad that the prosecutions were eventually dropped.
In a mid-March decision, the Court of Appeal of Quebec held the following:
As argued by the respondent, evidence of the appellant's viral load has no bearing on the charge of aggravated sexual assault taking into account the facts of the case. Since a condom was not used during the sexual activity, the fact that the appellant's viral load was low or undetectable at the time of the events in question is not sufficient to rule out the realistic possibility of HIV transmission.
It is therefore hard to believe that, without a clear directive, the designation of prosecutors to handle HIV-related cases will ensure the consistent application of provincial law if, on one hand, viral load is considered a sufficient reason to drop a prosecution, but, on the other hand, judges on Quebec's highest court are told that viral load is not relevant in assessing whether a realistic possibility of HIV transmission exists and they maintain that idea in their decisions.
Right now, there is no way for a person living with HIV in Quebec to know whether their viral load shields them from prosecution in the event that they do not disclose their status to a sexual partner.
These issues arise because, in Canada today, the potential for government intrusion in the bedrooms of people living with HIV and their sexual practices varies significantly depending on where in the country they happen to be.
In the current context, a person could wind up in prison for engaging in sex without using a condom in Longueuil, but be shielded from criminal charges had they done the same in Whitehorse.
At the risk of overusing a concept of administrative law that lends itself well to parallels, it seems to me that people living with HIV should be able to have some reasonable expectation of outcome, to know the law as it applies to them and to have some certainty as to how the law will be applied.
It should therefore come as no surprise that the inconsistent interpretation countrywide of the realistic possibility of transmission test, established by the Supreme Court, gives rise to confusion within the community. Keep in mind the burden of that confusion falls on the shoulders of people who, very often, are already marginalized.
What comes next? Given the troubling inconsistency that prevails across the country, the federal government's work is not done. It can and must do something. The government must undertake legislative reforms to limit the unjust use of the criminal law against people living with HIV, as per the second measure called for by the Canadian Coalition to Reform HIV Criminalization in its Community Consensus Statement.
The decision to call for Criminal Code reforms was carefully considered, because we recognize the challenges involved, but a strong and, especially, lasting response is necessary.
What exactly those reforms should look like has yet to be determined, but certain elements are clear, as highlighted by other witnesses. The reforms must ensure, on one hand, that sexual assault provisions do not apply to HIV non-disclosure and, on the other hand, that the criminal law apply only in very rare cases of intentional transmission and in no other circumstances.
In conclusion, committee members, the federal directive is merely the first step in a much more extensive process of legislative reform. Although the directive announced by the federal government certainly goes further than some of the measures taken by the provinces, it remains a harm reduction measure. Even if every province were to adopt a directive on how to interpret the realistic possibility of transmission of HIV, only legislative reforms would ensure that the criminal law applied only to cases of intentional HIV transmission.
We look forward to continuing to work with you and our partners on this issue.
Thank you.