Justice Committee on April 9th, 2019

[Léa Pelletier-Marcotte]

Yes. I didn't have time to cover it, and I'm sorry for the inconvenience I just caused, but any new Criminal Code provision or amendment should make clear both actus reus and mens rea related to the offence, that is, the actual and intentional transmission of HIV. I therefore agree with everything in the report.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you.

Dean Flanagan, would you like to comment on this as well, regarding the provision of an explicit offence in the Criminal Code and what it should look like?

[Prof. William Flanagan]

My own sense is that an explicit provision in the Criminal Code does raise some concerns in that having an HIV-specific offence might also enhance the stigma around HIV, which is my major concern. At the same time, it's important that the current Criminal Code be applied in a way that does not lead to unwarranted prosecution and conviction. My sense is that in the absence of some change in the jurisprudence—for example, in Canada the Supreme Court can still prosecute cases of non-disclosure where there was no actual transmission of HIV—clarifying all of this would require a specific amendment to the Criminal Code. For this reason, I would support the comments made earlier by Léa on this point.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

First of all, I'd like to compliment you on your document, “Ending the HIV Epidemic in Canada in Five Years”. I think it's a laudable goal.

You indicated that one of the problems was the lack of self-testing in Canada. You seemed to indicate that this was available elsewhere in the world, and I was wondering why it is not available in Canada.

[Prof. William Flanagan]

That's a great question. It's widely available in the United States, in Europe and in many developing countries in the world.

Canada has been very slow to implement this. It would require regulatory approval by the federal agency, which is under way right now. Certainly, this is a part of our report, and we've been actively advocating for it. We're working with a number of companies that are prepared to provide self-testing kits in Canada, and we're seeking regulatory approval. We're hoping to expedite that as soon as possible.

Of course, it will be important to roll out these self-testing kits throughout Canada and to make sure that anyone who purchases a self-testing kit will be immediately and easily linked to care in the event that they are found to be HIV-positive.

This is a major objective of our report. For a whole variety of reasons, Canada has been slow to adopt self-testing as a strategy in HIV prevention and treatment, and we hope to change that.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Are these tests considered reliable?

[Prof. William Flanagan]

Yes, the tests are highly accurate and easily applied. They can be done by either a blood prick or a saliva test. They're very accessible, low cost and demonstrated to be highly effective around the world.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you, those were my questions.

[The Chair, Liberal, Anthony Housefather]

Mr. Garrison.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

I want to start by thanking Kerry Porth for getting the issue of decriminalization of sex work back before the justice committee, it's something that I have been committed to as an MP.

I want to ask maybe for you to state the obvious. When we look at those who've been prosecuted for non-disclosure of HIV, how are sex workers represented in that group?

[Kerry Porth]

I honestly don't know what the numbers are on that. I would say, however, that because so many of the prosecutions are directed at highly marginalized people, it's possible that sex workers were some of those people, but it hasn't been explicitly stated. There is a fear among sex workers that if they're known to be HIV-positive they could be criminalized and surveilled by public health. So it creates a fear around criminalization. The nature of their work and the fear of HIV non-disclosure creates a perverse disincentive to testing.

When we're talking about the numbers of people who are likely living with HIV without knowing it, I would count a number of marginalized sex workers in that group. If we can remove from their work at least one layer of stigma and one sort of fear of being criminalized, I think more would be tested, and more could start receiving care, including critical preventative care.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

That's great, thank you.

Dean Flanagan, I want to thank you for giving me an update on self-testing. I asked the Prime Minister in the House in December about self-testing, and he said he would be willing to work with me on this. I didn't hear from him. I wrote to the Minister of Health the next day and asked what was happening with self-testing. You've given me more information than I've gotten from the government on this.

When you say we're trying to expedite the regulatory approvals, what kind of time frame are we looking at here? Self-testing to me is a critical gap in the provision of HIV services in this country.

[Prof. William Flanagan]

I'm very pleased to hear that you're interested in the matter. The national working group would be delighted to work with you in any capacity to enhance the access to self-testing in Canada.

As I mentioned, we're working with a number of providers. In fact, one of the leading self-testing kits is produced by a Canadian company that curiously cannot be sold in Canada, because we do not yet have regulatory approval to do so.

One of my colleagues has received a number of major grants and has been undertaking research to demonstrate the effectiveness and accuracy of these tests. We're hoping that within the next six to 12 months we will obtain regulatory approval, and then we're going to be working very vigorously to make sure that self-testing kits are made widely available across Canada.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

One of the things I've run across with the federal government when we talk about testing is there is a tendency to say this is the responsibility of the provinces. Once we get beyond the regulatory aspects of self-testing, can you see a role for the federal government in running pilot projects or promoting the use of self-testing?

[Prof. William Flanagan]

Yes. As you point out the regulatory matter is federal, so that's squarely within federal jurisdiction. We're actively working with the federal regulatory authorities to expedite this process.

I think there's also a federal role in the broader policy around ending the HIV epidemic within the next five years. Of course, much of this will fall within provincial jurisdictions such as provision of care, which is a very important part of provincial jurisdiction.

I think, however, that federal leadership in highlighting the possibility that we can truly end this epidemic within five years...if the federal government takes a lead in conjunction with its provincial partners to enhance access to testing and care. Likewise, I think a very important role for the federal government is to restrict the unwarranted prosecution of non-disclosure, as I mentioned in my earlier remarks.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

As a gay man of a certain age, the eradication of HIV within five years is a phrase I never thought I'd hear. I do want to thank you.

[Prof. William Flanagan]

It is definitely possible. We have all the knowledge and the means to make it happen.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you very much.

Ms. Pelletier-Marcotte, you talked about a separate HIV transmission or non-disclosure offence. I have a great deal of concern about that.

Aren't there already existing provisions of the Criminal Code that would take care of those very limited number of cases of deliberate harm and intention to harm by non-disclosure or deliberate attempts to transmit HIV?

[Léa Pelletier-Marcotte]

Without a doubt, it's something that will have to be considered. The legislative reforms and what they will look like were the subject of discussion. Indeed,

the jury's still out about what they should look like.

In connection with the think tanks mentioned by the witness in the previous panel, two options were proposed. The first is to amend the existing provisions, specifically those related to sexual assault, so that they do not apply in the case of HIV non-disclosure. The second is to make sure that only cases involving an intent to transmit HIV or actual and intentional transmission are covered by the Criminal Code. That means making sure the criminal law applies only to those cases.

What will that look like? Will it take the form of an existing provision but one that is less stigmatizing than those covering sexual assault? Perhaps. Will a specific offence dealing with the intentional transmission of HIV be necessary? Perhaps. I'm just trying to show the importance of taking a two-phased approach. The first phase seeks to make sure the sexual assault offences do not apply to HIV non-disclosure, thus removing the stigma that goes along with that, and the second phase seeks to make sure only the intent to transmit HIV is subject to criminal charges.

Basically, that could mean adopting a specific provision or using an existing one. It would have to be determined.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you.

I also want to thank you for—

[The Chair, Liberal, Anthony Housefather]

Mr. Garrison, you're over your time now, so I have to go to the next questioner.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thanks for raising the issue of inconsistency in the Criminal Code across the country.

[The Chair, Liberal, Anthony Housefather]

Ms. Khalid.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you to the witnesses for your testimony today.

I'll start with Ms. Pelletier-Marcotte.

You spoke in your testimony about the discrepancy between provincial prosecutorial directives and federal.

Can you talk a little about the impact that discrepancy has and what we can do to have a complementary kind of guidance for the prosecution?

[Léa Pelletier-Marcotte]

As you know, the federal government is responsible for developing the criminal law and determining what constitutes criminal conduct, but it is the provinces that apply the law.

Our focus is the non-disclosure of HIV status. The only guidance came in the form of Supreme Court decisions on what constituted a realistic possibility of transmission further to the charge of aggravated sexual assault, in cases involving the disclosure of HIV status. There may have been some consistency in application, but determining how to apply the instruction set out by the Supreme Court was still up to judges. Even then, clear differences emerged in how provinces were treating the Supreme Court's rulings.

Given the federal government's involvement and the fact that very few provinces adopt directives or guidelines on how to interpret the Supreme Court decisions, what constitutes a realistic possibility of transmission varies tremendously across the country, from B.C. to Nunavut. How the proverbial guillotine of the criminal law falls on people living with HIV differs drastically, depending on whether they are in Hull or Ottawa, for instance.

It can be likened to schizophrenia, in that people living with HIV don't really know how the state or the judicial system will interfere in their lifestyle, sex life and ability to thrive. If they can be deemed sex offenders, depending on where they travel to, how are they supposed to apply the U = U principle and lead a full and fulfilling life?