Thank you to the members of the committee.
I want to take a moment to thank Alex for sharing those stories of people living with HIV, and what is some really incredible and groundbreaking research, and really important in underscoring to the members of the committee why this is an issue of such concern to people living with HIV and those of us involved in the HIV response in Canada.
The harm that follows from using the criminal law in the overly broad way that is currently being seen in Canada is real; it is deep; it damages people's lives in ways that are vastly disproportionate to whatever the perceived risks of harm may be in a variety of circumstances that are currently caught up in the scope of the criminal law.
I work for an organization called the Canadian HIV/AIDS Legal Network. I'm a lawyer, I've been with this organization for more than 25 years now, and have been co-counsel for us and other organizations as intervenors in a number of the cases that have been mentioned before the Supreme Court and a number of appellate courts across the country.
I have distributed a number of documents to you today, some of which have already been mentioned, that I would like to draw your attention to as I go through my remarks.
The first is a document that was already mentioned by Professor Kirkup, and that is this document that outlines for you the key trends and patterns in HIV criminalization from the late 1980s until the end of 2016. It analyzes all the known prosecutions, and represents the best, most comprehensive analysis of HIV criminalization cases to date in Canada.
Obviously, since it only goes until the end of 2016, it is now slightly dated. I just want to let you know that based on the tracking of cases since then, we can say that approximately 200 people have been prosecuted to date in more than 200 separate instances. Yet despite the advances in science and our understanding of HIV transmission, we continue to see prosecutions being brought in cases where there is simply no scientific basis for doing so.
As has already been mentioned, there is also a disproportionate impact of HIV criminalization on a number of different populations. Among men who have been charged, black men are disproportionately represented. Among women who have been charged, indigenous women are disproportionately represented. In the years since the Mabior decision of the Supreme Court of Canada in 2012, there has been a significant increase in the number of gay men being charged. I think it's also worth noting that of the cases we have documented, the majority do not involve alleged transmission of HIV.
We have a problem; the data shows it. The harms you've heard about as well, of this broad and consistent use of the criminal law, you've heard in the remarks that have come from Martin and from Kyle and from Alex.
I want to take a moment to draw your attention to an additional document that I've shared with you, which is a summary of the law regarding sex offender registries, because given that the charge most often used now to prosecute allegations of HIV non-disclosure is aggravated sexual assault, if a guilty plea or a conviction follows a trial, it is currently mandatory under the law that this person be designated as a sex offender, and this is presumptively for life, given the charge. There's a minimum of 20 years before you can even apply for the possibility of being removed from the sex offender registry, and you've heard from some of the other witnesses the harms that follow from being designated a sex offender.
Let's keep in mind that we're talking here about circumstances in which the sexual assault described by law is not what we normally think of as a sexual assault. These are not instances of forced or coerced sex; these are instances of consensual sexual encounters where it is alleged after the fact that the non-disclosure of certain information turns that into an offence under the law that should be treated in the law the same as a violent rape. There is a mismatch here between the reality of people's lives and how we negotiate consensual sexual relationships and how the criminal law is being deployed. The consequences are severe.
You've also heard reference—and I'll think you'll hear reference from other witnesses—to the harms that happen not just to individuals, and those have been laid out very eloquently, but the broader public harms to the public interest, including public health.
When it becomes the case that finding out your HIV status means that you risk prosecution and potentially being convicted and designated as a sex offender for life for having consensual sex with a partner, even under the broad state of the law as it stands now, for circumstances in which there was no risk of transmission, or at most, a negligible risk of transmission, that is a real disincentive to getting testing, and there is some evidence to support this concern.
It also undermines the therapeutic relationship between service providers and people looking for health services, because anything you say to a health care worker, a social worker or other support worker can be used against you as evidence in a criminal proceeding, and in fact it has been and is regularly used in these criminal proceedings. In doing so, we conscript the health system and social services into the service of prosecuting people who are looking for support, including support, in some cases, around disclosure to partners and also practising safer sex and taking other measures to prevent transmission.
This is not good public policy. At the end of the day, I would suggest, the harms of HIV criminalization, particularly the broad scope of HIV criminalization that currently is characteristic of Canadian law, significantly outweigh any purported benefits of doing so. In fact, there is an emerging consensus, which has been forged over the years in response to the broad application of the criminal law, that there is indeed a problem and there is indeed a need for change.
We were encouraged to see the former federal attorney general recognize, a couple of years ago, the problem of the over-criminalization of HIV and recognize that steps needed to be taken to address it, to limit the scope of criminalization. The Department of Justice then conducted a year-long study—which, of course, you will have seen—that reached a number of fairly sound conclusions that also reflect the need to limit HIV criminalization, because Canadian law, in the way it has evolved, is too broad and too harsh.
There's particular concern expressed in the Justice Canada report about the use of sexual assault law as a vehicle for dealing with cases of alleged HIV non-disclosure. In fact, that concern is widely shared.
I would draw to your attention a third document, a community consensus statement that has already been referred to by a couple of the witnesses. It was developed by the Canadian Coalition to Reform HIV Criminalization. You'll see on the back page of that consensus statement that 174 organizations across the country, both within the HIV sector and also, notably, beyond it have supported the calls to action that are in this community consensus statement. You'll note the variety of organizations that have supported the calls to action, in terms of both the geographic spread across the country and the number of different sectors that are represented, the number of different constituencies, that are represented here, from local HIV service organizations to legal clinics to the Native Women's Association of Canada to LGBT organizations to women's organizations and beyond. You also have a companion document that addresses some of the detail about how this community consensus statement was developed through a broad national consultation across the country.
It's not just HIV organizations and other community groups that have articulated concerns about the broad scope of the criminal law; it's also scientists. I want to draw to your attention a fourth document that I've shared with you. Published in The Journal of the International AIDS Society last year during the international AIDS conference, it is an expert consensus statement on the science of HIV in the context of the criminal law. It reviews in detail the best available science about the risks of transmission under various circumstances. You'll see on the front page the executive summary of the conclusions from those scientists. These are 20 eminent scientists from around the world. The lead author is actually the co-discoverer of the human immunodeficiency virus. It's been endorsed by another 70 leading scientists around the world as well as by the International AIDS Society, the International Association of Providers of AIDS Care and UNAIDS—so the three leading HIV scientific organizations in the world.
You'll see that a key message they articulate is that the criminal justice system often misappreciates or misunderstands the science that we have about HIV and the risks associated with various sexual activity under various sexual acts. That risk of transmission per act is actually much, much smaller than most people believe. I underscore that point because we have to remember that the criminal law, as it is being deployed in Canada, is operating on the basis that a single act that may pose a statistically negligible risk of transmission can have you treated in law as being equivalent to a violent rapist and designated a sex offender for life, with all of the harms that follow and that you've already heard about.
Scientists themselves have begun to speak out and to say, “We are concerned about the overreach of the criminal law.” This situation exists not just in Canada but elsewhere. I urge you to have regard for what the scientists are saying about the scope of the criminal law.
It's also women's organizations that have spoken out and that share the concern about the misuse of sexual assault law, for a variety of reasons. I believe, as a committee, you have also received a position paper from LEAF, Women's Legal Education and Action Fund, which articulates a number of the concerns about why using sexual assault law is problematic.
I would note that the UN Committee on the Elimination of Discrimination against Women has also specifically recommended to Canada that it limit the scope of criminal law to those cases of actual, intentional transmission of HIV, which, I should note, is consistent with the recommendations from UNAIDS and from the Global Commission on HIV and the Law.
Let me close by noting that we were grateful to see the directive from the former federal attorney general of Canada in December. As others have pointed out, that directive does indeed go some way toward limiting, at least in those jurisdictions where it's applicable, the scope of the criminal law. That is an important step forward.
However, as has also been underscored and is reflected in the community consensus statement that I've shared with you, it's not sufficient. We still need to see reforms to the Criminal Code that would oust the application of sexual assault law—because it's the wrong tool for the job—and that would limit any potential application of any criminal charge to those cases of actual and intentional transmission.
I'll stop there and would be happy to take any questions.