Thank you, Mr. Chair.
Good morning. My name is Kyle Kirkup. I am an assistant professor at the University of Ottawa Faculty of Law.
Over the past decade I have published a series of peer-reviewed articles about the criminal law's regulation of gender and sexuality in Canada, including the criminalization of HIV non-disclosure. I have also written expert reports on LGBTQ human rights issues for the Office of the Correctional Investigator, the Ontario Human Rights Commission and the Ontario Association of Chiefs of Police.
My main point this morning is this. Canada targets people living with HIV for non-disclosure at one of the highest rates in the world. Our current approach leaves people living with HIV with considerable confusion about when they are legally required to disclose their status. It targets marginalized communities, including women. It fuels stigmatizing messages about people living with HIV. As well, it ultimately undermines public health.
To be sure, the federal prosecutorial directive issued in late 2018 was a step in the right direction in order to limit unjust prosecutions.
Now the federal government should take the next logical step, one recommended by a coalition of civil society organizations across Canada. HIV non-disclosure should be removed from the reach of the Criminal Code in all but the clearest of cases where there is the intentional and actual transmission of HIV.
I want to start by just briefly laying out the history of HIV non-disclosure in Canada. In the aftermath of the HIV/AIDS epidemic, it would have been open to Parliament to enact new Criminal Code offences to target HIV non-disclosure or transmission. It chose not to do so. Therefore, beginning in the 1980s, we saw judges graft instances of HIV non-disclosure onto existing Criminal Code offences, varying from common nuisance to administering a noxious substance to criminal negligence causing bodily harm to aggravated assault to aggravated sexual assault and even, in extreme cases, to murder.
This ill-defined, ad hoc approach left people living with HIV with considerable confusion about the precise circumstances under which they were legally required to disclose their status.
After over a decade of legal confusion, the Supreme Court issued its decision in Cuerrier in 1998. Here, the court held that people living with HIV had a legal duty to disclose their status whenever there was a so-called “significant risk of serious bodily harm”. Failure to do so constituted fraud within the meaning of paragraph 265(3)(c) of the code, which would transform what would otherwise be consensual sex into aggravated sexual assault. We know that aggravated sexual assault is one of the most serious offences in the Criminal Code. It carries with it the maximum punishment of life imprisonment as well as a mandatory designation as a sex offender.
Following the decision, the confusion did not end, however. Risk of HIV transmission is a notoriously difficult concept to apply, engaging questions about which sexual activities were performed, whether a condom was used, whether the person living with HIV had a low viral load, whether either partner had any other sexually transmitted infections, and a constellation of other factors.
Therefore, again, in 2012 the Supreme Court tried to clarify this legal standard in a case called Mabior, this time explaining that people living with HIV had a legal duty to disclose their status whenever there was “a realistic possibility of transmission”. The court went on to explain that, at least in the context of penile-vaginal sex, if the accused person had a low viral count and a condom was present, there was no legal duty to disclose their status.
In the face of this legal regime, and after years of advocacy done by people living with HIV, we started to see the emergence of long overdue prosecutorial guidelines, because this legal standard continued to be very difficult to apply in practice. In 2016, former minister of justice and attorney general Jody Wilson-Raybould stated publicly that the criminalization of HIV non-disclosure “further stigmatizes those living with HIV”.
Then, two years later, she issued the directive to the Director of Public Prosecutions, which sets out four guiding principles designed to govern prosecutorial decision-making: first, not to prosecute people with suppressed viral loads; second, not to prosecute people where condoms were used or where only oral sex was performed, unless there were other risk factors present; third, to use non-sexual offences with lower levels of blameworthiness in appropriate circumstances; and fourth, to determine if public health authorities had provided services to a person accused of not disclosing their status when determining whether a prosecution would be in the public interest.
While this directive is a step in the right direction, and one that promises to help guide similar kinds of directives being constructed by provincial attorneys general across the country, it is important to underscore the limited jurisdiction of this directive. It only applies to prosecutions done in Yukon, the Northwest Territories and Nunavut.
Despite efforts to clarify the law and issue prosecutorial directives, people living with HIV continue to experience profound harms as a direct consequence of HIV non-disclosure. While the harms are expansive, I want to emphasize at least four. These harms lead me to conclude that statutory amendments are needed.
First, confusion remains about when people living with HIV are legally required to disclose their status. Indeed, the current state of HIV non-disclosure is antithetical to a fundamental precept of criminal law, one that I teach my students in my first-year class. Individuals ought to be able to clearly know what steps they ought to take to avoid contravening the Criminal Code.
Second, there is strong empirical evidence to suggest that the burden of criminalization is not distributed evenly across our communities. In particular, black and indigenous people are disproportionately targeted by criminal prosecutions. On this point, I would direct the committee to review the Canadian HIV/AIDS Legal Network’s 2017 report entitled “HIV Criminalization in Canada: Key Trends and Patterns” that tracks every known prosecution for HIV non-disclosure beginning in the late 1980s and finishing in 2016.
Third, HIV non-disclosure prosecutions fuel stigmatizing messages about people living with HIV. For example, in many instances, HIV non-disclosure prosecutions are subjected to intense media coverage. In 2010, for example, the Ottawa Police Service issued a press release for a man they already had in custody, publishing his name, photo and details of his sexual orientation and his medical condition. Issuing this press release led to a series of sensationalist stories in newspapers such as the Ottawa Sun that continued throughout the trial process. These stigmatizing stories are yet another collateral consequence of the misguided approach to HIV non-disclosure in Canada.
Lastly, the criminalization of HIV non-disclosure runs the risk of undermining public health. By way of a concrete example, health care providers may be placed in the unenviable position of having to provide legal information to people living with HIV about how to avoid coming into conflict with the criminal law. This is simply not the role they ought play.
Ultimately, Canada has the unfortunate distinction of prosecuting people living with HIV for non-disclosure at one of the highest rates in the world. The approach causes very real harms. To be sure, the federal prosecutorial directive issued in late 2018 was a step in the right direction, but the directive is not enough.
The federal government should now begin the process of removing HIV non-disclosure from the reach of the Criminal Code in all but the clearest of cases where there is intentional and actual transmission of HIV. If Parliament undertakes the project of legislative reform, it will be critical to ensure that experts, especially those who have been targeted by unjust prosecutions, are meaningfully consulted. Once and for all, it is time to move away from the misguided approach of criminalizing HIV non-disclosure in Canada.
Thank you.