Okay. Thank you very much.
Members of the committee, thank you for the opportunity to appear before you today. The issue of criminalization of non-disclosure of HIV is a serious one, and I'm pleased that the Standing Committee on Justice and Human Rights is studying the matter.
As you know, Canada has the unfortunate distinction of being one of the most aggressive countries in the world in terms of the criminalization of HIV non-disclosure. This has resulted in the prosecution of a wide number of cases that, in my view, did not warrant prosecution and the application of criminal law.
It's important to note that it is now well established that the possibility of HIV transmission from an HIV-positive person with an undetectable viral load as the result of effective treatment is, according to the U.S. Centres for Disease Control, effectively no risk. That is, “U equals U”: undetectable equals untransmittable.
For that reason, it is important that the December 2018 federal directive providing prosecutorial guidance on HIV non-disclosure states that prosecution shall not proceed in cases of HIV non-disclosure “where the person living with HIV has maintained a suppressed viral load...because there is no realistic possibility of transmission”.
As you know, however, the directive only applies to federal Crown attorneys and is limited to prosecutions in the territories. There are still many regions of Canada where prosecutions may proceed, notwithstanding this federal directive.
There are also other limits to the directive. Prosecutions can still proceed even in the absence of any transmission of HIV and may proceed even under the most serious charge of aggravated sexual assault, which carries a maximum sentence of life imprisonment and mandatory designation as a sex offender.
I know many of those appearing before you today will outline in greater detail the remaining problems associated with the criminalization of HIV non-disclosure in Canada, notwithstanding the federal directive. However, today I will focus on the public health impact of the overuse of criminal law in this context.
I had the privilege of serving as the chair of a recent national working group, convened by CANFAR, the Canadian Foundation for AIDS Research. I believe each of you has been given a copy of our report, “Ending the HIV Epidemic in Five Years”, released in August of last year. The report was authored by a diverse group, including medical doctors and scientists, leaders from prominent HIV organizations and public health organizations, and people with lived experience from across Canada. The report also has the great virtue of being only eight pages long, so I would encourage you to read it.
In the report, we note that there are about 63,000 people in Canada living with HIV, but only 86% of them are diagnosed, which means there are about 9,000 individuals in Canada with undiagnosed HIV infection. For those diagnosed with HIV, only 81% are on antiretroviral treatment. This means another 10,000 individuals in Canada are diagnosed with HIV but not on treatment.
As noted in the report, we know that enhanced testing options, including point-of-care testing and self-testing, can dramatically increase rates of HIV testing. We also know that those on effective antiretroviral treatment cannot sexually transmit HIV.
If we can dramatically scale up testing options and access to care and support for treatment, we can get to the point where new infections will become rare and we can effectively end the HIV epidemic in Canada within the next five years.
That is the call to action in our report, but our report notes the many barriers that continue to exist. Point-of-care testing is dramatically underutilized in Canada, and self-testing options available in pharmacies much like a pregnancy test, now commonly available in most countries around the world, remain unavailable in Canada. All of this needs to change.
We also note that the stigma associated with HIV affects people's willingness to be tested and seek and engage in care. It affects their sense of self, community and belonging, their access to services and their ability to seek social support. The unwarranted criminalization of HIV non-disclosure greatly contributes to the ongoing stigma associated with HIV. Criminalization, often accompanied by sensationalized media reports that disproportionately focus on racialized people, damages HIV prevention efforts by discouraging HIV testing for fears that it may lead to criminal prosecution.
Criminalization erodes trust in voluntary approaches to HIV prevention and testing. It helps spread misinformation about the nature of HIV and its transmission. The overuse of criminal law compromises the ability of people living with HIV to engage in the care they need due to the fear that their HIV status and discussions with medical professionals may be used against them in criminal prosecutions.
Unwarranted criminalization has a devastating effect not only on those accused and convicted, as you have heard today; it also has a highly detrimental effect on broader HIV prevention and care initiatives. This detrimental effect was recently demonstrated in a Canadian study published in 2018 that explored the prosecution of non-disclosure of HIV status and its impact on HIV testing and transmission among HIV-negative men who have sex with men, MSM. The study interviewed 150 HIV-negative MSM and found that 7% were less or much less likely to be tested for HIV due to concerns over potential prosecution. The authors estimated that this 7% reduction in testing would cause an 18.5% increase in community HIV transmission, largely as a result of the failure of HIV-positive but undiagnosed MSM to access care and reduce HIV transmission by the use of effective antiretroviral treatment. In other words, the study demonstrated that concerns over potential prosecution reduced the number of HIV-positive people who were willing to be tested and access the care they needed to eliminate the possibility of transmission to another person. Concerns over potential prosecution deterred people from seeking testing and treatment. This was demonstrated to increase the risk of transmission to others.
In short, ending the HIV epidemic in Canada in the next five years will not happen if we continue to add to the stigma and misinformation associated with HIV by the ongoing and unwarranted overuse of criminal law measures. It will not happen if the over-criminalization of HIV non-disclosure continues to deter testing and treatment. We need to get this balance right, not only for those individuals inappropriately and unfairly caught up under Canada's current criminal law but also to advance our larger objective to end the HIV epidemic in Canada.