Evidence of meeting #142 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was non-disclosure.
A recording is available from Parliament.
9:30 a.m.
Liberal
Randy Boissonnault Liberal Edmonton Centre, AB
Thank you to the panellists.
Thank you, Mr. Bilodeau, for joining us from Paris today. That's very nice of you.
This is exactly why we wanted to have the study. We think we are doing a good thing with the prosecutorial directive and we worked hard to see that take place. We wanted to know what we've missed.
As you may know, there is a concurrent study going on at the Senate committee on health that's looking into the health indicators of the LGBTQ2 community. We saw this as members of the justice committee when we did the human trafficking report. There's a difference in the data that the government is able to collect and what people who are working on the ground are able to collect. We also learned some things we didn't expect so, quite frankly, hearing today that people who have been raped are the ones being charged in having to live their lives with this sexual offender label is something I didn't know. It's important for us to know and it's important for us to get this right.
Mr. Bilodeau, in a minute or a minute and a half, could you talk about some of the discriminatory situations people living with HIV face on a weekly, if not daily, basis?
9:35 a.m.
National Coordinator, Positive Leadership Development Institute Program, Ontario AIDS Network
First is relationship discrimination, which is what we're talking about today.
Second is job discrimination. The fear of HIV and AIDS can run so deep that a doctor or nurse who poses no scientific risk of transmission can still be prevented from practising their profession, even if they are fully qualified.
Third is insurance discrimination. Right now, for instance, I can't get house insurance so that I can purchase a home, a common event in most people's lives. I can't get life insurance either.
Structurally speaking, those are the main types of discrimination I would point to, aside from the fear conjured up by the AIDS hysteria of the 1980s, of course. The public was shown images of people who were dying and who had no prognosis to live, and the stigma from that is still prevalent in society.
9:35 a.m.
Liberal
Randy Boissonnault Liberal Edmonton Centre, AB
Thank you. It was nice of you to accept our invitation.
When we have witnesses who come forward and understand the rates of HIV—that knowledge—how many people in Canada living with HIV know their status? We know that the numbers are in the 70% to 80% range. In Europe, it's much higher. Do you see any link between the low stigma rates in Canada and the criminalization regime that is in place right now, Mr. Elliott?
9:35 a.m.
Executive Director, Canadian HIV/AIDS Legal Network
Do you mean the low levels of knowledge?
9:35 a.m.
Liberal
9:35 a.m.
Executive Director, Canadian HIV/AIDS Legal Network
Yes. As I think I noted, becoming exposed to the risk of prosecution, even for engaging in things that pose no or a negligible risk of transmission to a sexual partner, is a disincentive to finding out your HIV status. Frankly, when I speak to people, I tell them to seek anonymous testing, if possible, because there are real legal repercussions that arise instantly—
9:35 a.m.
Executive Director, Canadian HIV/AIDS Legal Network
—some of which are unfair, and to divulge as little information as possible to the testing provider, which is not really good from a public health perspective if you're shutting down conversation—
9:35 a.m.
Liberal
Randy Boissonnault Liberal Edmonton Centre, AB
We have a perversion of the health system due to the justice system.
9:35 a.m.
Executive Director, Canadian HIV/AIDS Legal Network
Our public health objectives are running into conflict with the overly broad use of criminal law and, frankly, I think the public health objective is the thing that ought to take precedence here. When the criminal law does more harm than good, let's go with the things that we know actually work, which are public health interventions.
9:35 a.m.
Liberal
Randy Boissonnault Liberal Edmonton Centre, AB
I'm going to go for a minute to Professor Kirkup and then back to you.
What changes should we see in the law, from a statutory perspective, that would do what you're asking us to do?
9:35 a.m.
Prof. Kyle Kirkup
That's a good question. I was grappling with this question. I think we need to go to paragraph 265(3)(c), which is the fraud provision of the Criminal Code. What you could think about doing is defining fraud to exclude HIV non-disclosure of status. Keep the fraud provision potentially on the books, but carefully circumscribe the definition of fraud such that it would not apply to HIV non-disclosure of status, so—
9:35 a.m.
Liberal
Randy Boissonnault Liberal Edmonton Centre, AB
Intentional transmission of the virus would still, then, satisfy the condition of fraud vitiating consent?
9:35 a.m.
Prof. Kyle Kirkup
You could do it that way, or you could say that the other Criminal Code offences that exist on the books—perhaps criminal negligence causing bodily harm—outside of the scope of sexual assault would apply in that circumstance.
9:35 a.m.
Liberal
9:35 a.m.
Prof. Kyle Kirkup
I think what's really important is that you have the right actors around the table when you do that, because at the moment it's still early days, but one thing I would want to do is make sure that, for example, you had folks from the Women's Legal Education and Action Fund at the table. They've come out with a position statement, which is generally supportive of what you've heard today, but I think we're at the point where that's where the conversation needs to go.
9:35 a.m.
Executive Director, Canadian HIV/AIDS Legal Network
I would just like to note that the Canadian Coalition to Reform HIV Criminalization has actually convened an initial think tank to look at different options for Criminal Code reform. We've made a request to the justice department to meet with them to look at different options and at the pros and cons of different amendments that might be brought forward to the Criminal Code to achieve what we're proposing.
There is some thinking that has been done here, but I think it would be really important for Justice to actually sit down with scientific experts, legal experts, people living with HIV and others to actually work through this, because this is not a simple question.
9:40 a.m.
Executive Director, Canadian HIV/AIDS Legal Network
There are pros and cons to different approaches, so we should look at that carefully.
9:40 a.m.
Liberal
Randy Boissonnault Liberal Edmonton Centre, AB
Putting on my other hat for five seconds, if we can connect you with the LGBTQ2 Secretariat as well, that will be an important piece for that discussion.
April 9th, 2019 / 9:40 a.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Thank you very much, Mr. Chair, and thank you to the witnesses for being here today. Also, thank you for your moderation.
I have to start by saying that, 30 years after Canada lost a generation of the talents of gay men and the families lost their love, we're still dealing with the stigmatization. We're still having to organize as a community and come to Parliament to demand action from a government that is so slow to act.
I want to thank Mr. McClelland for bringing the testimony of those who are actually being impacted.
I'm glad we're here, I'm glad we have the directive and I'm glad we're doing the hearings, but I'm sad that it occurs at this point in a Parliament. We haven't even begun the process of figuring out how to reform the criminal law, so this will not happen until after the next election.
I hope one of the outcomes of these hearings is that members of Parliament are committed to this being an early piece of the agenda of the next Parliament.
I was recently in Whitehorse, meeting with Blood Ties, an organization that's a front-line service delivery group for those living with HIV. Their big concern was that, even though the prosecutorial directive is in place, there's been no education around that in the north. Therefore, the people most likely to be affected have no knowledge of the change in attitude of prosecutors.
I want to ask Mr. McClelland about that, in terms of those most likely to be affected.
Do they have knowledge that we're even moving in this direction, or is it still the stigmatization and the threat of prosecution that rules in their minds?
9:40 a.m.
Doctoral Student, Centre for Interdisciplinary Studies in Society and Culture, Concordia University, As an Individual
A majority of all the people I spoke with were uncertain of their legal obligations. One young man I spoke with, after recently testing HIV-positive and going on HIV medications, was criminally charged within six months of finding out his HIV status. He was rendered virally undetectable and understood that, if he took his medications, he wouldn't transmit. He thought he was acting in a reasonable manner and that he wouldn't be criminally charged. His doctor told him he was uninfectious, that he could have sex without condoms, and that he was not able to transmit the virus. He understood he was acting in a responsible, reasonable manner, and he was still criminally charged.
There is a lot of confusion out there. There is a context of fear, where people are uncertain of their legal obligations.
Also, no, there is no legal education. I think all the people I spoke with, after being incarcerated and serving their time, still said they had been provided with no education or support about how to disclose and felt more confused about disclosure and more trauma and stigma about disclosure than ever before. Therefore, even for the people who were sentenced, they still were uncertain.
