Justice Committee on April 9th, 2019

[Professor William Flanagan, Dean, Faculty of Law, Queen’s University, As an Individual]

Thank you.

[The Chair, Liberal, Anthony Housefather]

From Pivot Legal Society, we have Ms. Kerry Porth, who is a sex work policy researcher, who is also joining us by video conference.

Welcome, Ms. Porth.

[Kerry Porth, Sex Work Policy Researcher, Pivot Legal Society]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Perfect.

In order to make sure we don't lose the video conference folks, we'll start with Dean Flanagan, for about eight minutes, and then go to the others, after which we'll do questions.

Dean Flanagan, the floor is yours.

[Prof. William Flanagan]

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.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We will now go to the Pivot Legal Society.

Ms. Porth.

[Kerry Porth]

Good morning. Thank you for inviting me to speak to the committee today.

My name is Kerry Porth and I am the sex work policy researcher at Pivot Legal Society. Pivot is an organization located in the Downtown Eastside of Vancouver that works with communities affected by poverty and social exclusion to develop solutions to complex human rights issues.

Our work is focused in several areas, but I will limit my remarks today to my own area of expertise, which is sex work and the law. I am here to offer Pivot's qualified support for the Attorney General's new guidelines on prosecution for the non-disclosure of HIV status.

I will remind this committee that Canada has the third-largest number of recorded prosecutions for alleged HIV non-disclosure in the world. These prosecutions are disproportionately of individuals who are marginalized by poverty, race, gender expression and sexual orientation—people like our sex-working clients who continue to labour in a criminalized environment.

We are pleased to see the Attorney General taking steps to lower the number of prosecutions and to allow more consideration of individual circumstances. That being said, the directive does not go far enough. In our opinion, the decriminalization of sex work is the only way to fully respect sex workers' rights and to protect their health and safety.

We are concerned that even with the new directive, sex workers may be unfairly criminalized for HIV-related offences that are, in actuality, related to the stigma and criminalization of sex work.

We know that the criminalization of sex work, one, exposes workers to higher risks of HIV transmission. Two, it makes workers vulnerable to exploitative and risky behaviour. Three, it prevents access to health care.

On the first point, that criminalization exposes workers to higher risks of HIV transmission, in Canada the HIV burden among sex workers is highest among those who are selling or trading sex on the street. This is due to issues such as criminalization, violence, stigma and poor working conditions that limit their ability to engage in HIV prevention, including the correct use of condoms.

Most sex workers who are living with HIV contracted the disease through injection drug use or, more often, through non-commercial sex with an intimate partner.

In 2015, a comprehensive review of all HIV and sex work research over the previous six years demonstrated that biomedical and behavioural prevention efforts alone have had only a modest impact in reducing HIV infections of sex workers. Instead, the review found that structural factors played the largest roles.

Research has consistently shown that criminalization of sex work and police enforcement reduce sex workers' ability to properly screen their clients, negotiate condom use and access health services without stigma, including HIV care.

Any suggestion that sex workers were decriminalized under the Protection of Communities and Exploited Persons Act, introduced in December 2014, is wholly inaccurate. People selling or trading sex in challenging circumstances, such as those working on the streets, are limited in their ability to keep themselves safe under the new laws in much the same way as they were under the old.

For example, the prohibition on client communication means that sex workers have very little time to assess the safety of a potential client on the street because the client fears detection by law enforcement. Such workers in these circumstances have much less time to negotiate the terms of the transaction, including the use of condoms, which can leave them vulnerable to HIV.

In Canada, research has demonstrated that laws that target clients and third parties—such as managers, security and receptionists—have not reduced the rates of violence against sex workers or increased their control over their sexual health, including HIV prevention.

On the second point, criminalization makes workers vulnerable to exploitative and risky behaviour. The directive still criminalizes sexual activity if a condom is not used. This requirement differentially impacts marginalized sex workers who are vulnerable to exploitative practices, such as clients who refuse to use condoms.

In Canada, most sex workers practice safer sex at much higher rates than the general public, and this should not need to be stated, as their work requires that they have a healthy body. However, sex workers living with HIV, who are living and working in challenging circumstances, might not be aware of their current viral load but still use condoms, which are proven to be 100% effective at stopping the transmission of HIV.

There are cases, however, where clients have pressured marginalized workers, often with a significant financial incentive, to not use a condom, or have removed it during the course of a transaction, or have sexually assaulted a sex worker and did not wear a condom.

The direct criminalization of third parties, such as drivers, managers and security, is having an adverse effect on the health and safety of sex workers. It is well established in the literature and confirmed by the Supreme Court of Canada that sex workers enjoy greater safety and better health outcomes when they are able to work together in a fixed indoor location. Evidence demonstrates that safer work environments and supportive housing, which allow sex workers to work together, promote access to health services and reduce HIV risks among sex workers.

Those options are now less available, as anyone who even appears to be guilty of receiving a material benefit in the context of sex work is presumed to be guilty. This has reduced the pool of trusted third parties. Instead, people who are less averse to breaking the law and more likely to engage in exploitative practices with sex workers have stepped in to fill the void. In other words, a legal framework that casts all third parties and clients as exploitative and potentially violent, with no evidence to support that, creates an environment where violence and exploitation are more likely to occur.

Exploitative practices can include demands that sex workers take clients who don't want to use condoms. Migrant sex workers, in particular, lack connections and language skills and are at constant risk of deportation due to immigration regulations that prohibit them from working in the sex industry. As a result, they are unable to reach out to police and are afraid of accessing health care.

On the third point, sex work criminalization prevents access to health care. The directive says that people will not be prosecuted if they have a suppressed viral load, but sex workers are deterred from accessing health care and are therefore exposed to a greater risk of prosecution than other communities.

Given the structural barriers to comprehensive HIV care for marginalized sex workers, it is easy to foresee circumstances where sex workers are unaware of their current viral load, and so we have concerns about how “less blameworthy” conduct will be assessed under the new directives. The stigma regarding sex workers is profound and their conception as vectors of disease by public health bodies traces its roots in modern times to the Contagious Diseases Act of 1860 in England.

Sex workers are also confused about the criminalization—

[The Chair, Liberal, Anthony Housefather]

Ms. Porth, I just wanted to let you know that you're at eight and a half minutes. I ask you to take one minute to wrap up, please.

[Kerry Porth]

No problem.

[The Chair, Liberal, Anthony Housefather]

Thank you.

[Kerry Porth]

I'll note that the Attorney General's directives will only apply to the three territories, so they are of limited effect. I trust that you are working with your provincial counterparts to ensure these changes are adopted in each province.

Our recommendations are as follows. Do not prosecute the transmission of HIV unless it is in one of the rare cases in which HIV transmission was deliberate and malicious, in which case use laws that have general application. Decriminalize sex work, which is consistent with recommendations by the World Health Organization, the Global Commission on HIV and the Law, the Canadian Public Health Association, the Canadian HIV/AIDS Legal Network, UNAIDS and Amnesty International, among others.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

It is now Mrs. Pelletier-Marcotte's turn.

[Léa Pelletier-Marcotte]

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.

[The Chair, Liberal, Anthony Housefather]

Many thanks to the witnesses.

We will now move into questions.

We are going to go to Mr. Cooper.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you, Mr. Chair.

I'll begin with Ms. Pelletier-Marcotte.

In the last part of your presentation, you touched on some of the legislative measures you would like to see the federal government undertake. You spoke about amending paragraph 265(3)(c). Would that also encompass situations in which there was intentional transmission? What do you propose in that regard? I know you were cut off, so maybe just elaborate.

[Léa Pelletier-Marcotte]

Yes. I skipped a little bit on that.

The proposal of the reform would be twofold. First would be to amend the relevant sections and the currently applied sections of the Criminal Code to make sure they do not apply in cases of HIV non-disclosure.

The second aspect would be to maybe create another HIV-specific measure to make sure that it would remain in cases where the transmission is real and intentional.

It would be twofold. First, amend those sections to make sure that they do not apply to cases of HIV non-disclosure. Second, create maybe a new clause that would make sure that one would be applied in cases of intentional HIV transmission.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Just to be clear in terms of my understanding, you're suggesting, in terms of this issue of non-disclosure where it is intentional, where it is deliberate, creating a specific offence, and that way other sections of the Criminal Code would not be applied, such as the one on aggravated sexual assault and other provisions in the Criminal Code.

[Léa Pelletier-Marcotte]

Yes. As I mentioned, creating something on specific, intentional HIV transmission would be one of the things we would recommend, but also making sure that rather than applying every actual occurrence regarding sex acts, sexual transmission or sexual assault in cases of HIV non-disclosure, it would be specifically intentional transmission.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

I understand. Thank you for that clarification.

You spoke of the federal directive issued by the former attorney general. After referring to it, you cited the Ontario directive. You talked about a suppressed viral load for six months, but I didn't catch exactly what you were talking about there, so could you perhaps elaborate on that just so I can understand?

[Léa Pelletier-Marcotte]

Right after Justice Canada published the report in 2017, the Ontario government adopted a moratorium on prosecutions for people who had demonstrated that they had maintained a suppressed viral load for the past six months prior to the infection. It's based specifically and only on the viral load of the accused with no regard to the use of a condom or to the type of sexual activity that was involved, contrary to the federal directive.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you.

That's my time.

[The Chair, Liberal, Anthony Housefather]

We're going to go to Mr. McKinnon.

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

Thank you, Chair.

I would like to talk a little bit more about the explicit provision in the Criminal Code for an HIV offence.

Absent somewhat perverse outcomes whereby victims of rape themselves are charged with aggravated assault, if we had a specific provision in the Criminal Code for this, would it preclude charges under provisions for attempted murder, for administering a noxious substance, and so forth?

[Léa Pelletier-Marcotte]

A new offence specific to intentional HIV transmission would also need to stipulate that other Criminal Code provisions that had been used in HIV non-disclosure cases in the past could not apply. It should only be possible to prosecute the intentional transmission of HIV under that specific criminal charge. Then, we are talking about an actual sexual assault or what have you. That could be determined. However, only a new Criminal Code provision should address the notion of HIV transmission.

I don't know if I answered your question.

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

One of these documents we got from the previous panel suggests that provisions such as this should require proof that the person intended to transmit HIV, proof that the person engaged in sexual activity that was likely to transmit the virus, and proof that HIV was actually transmitted, and, in the case of a conviction, a penalty that is proportionate to the actual harm and cause.

Would you agree with those provisions?