Justice Committee on April 30th, 2019

[The Chair, Liberal, Anthony Housefather]

Good morning, everyone. Welcome to this meeting of the Standing Committee on Justice and Human Rights as we resume our study of the criminalization of non-disclosure of HIV status.

Today we're joined by a distinguished panel of witnesses.

We have with us, as individuals, Dr. Isaac Bogoch, Physician and Scientist, Toronto General Hospital and University of Toronto; and Mr. Jonathan A. Shime, who is an attorney. As well, from the HIV & AIDS Legal Clinic Ontario, we have Mr. Ryan Peck, who is the Executive Director and also an attorney.

Welcome.

From Montreal, we will be hearing from Dr. Sarah-Amélie Mercure, from Montréal sans sida.

Dr. Mercure, you can start, since you are testifying by video conference and I do not want to lose the link. You have eight minutes, but I will not be stopping you before 10 minutes.

[Dr. Sarah-Amélie Mercure, Member, Montréal sans sida]

That's fine. Thank you.

Good morning, everyone.

Thank you very much for having me as a witness in your study on the criminalization of the non-disclosure of HIV status.

I have organized my testimony around the four questions that were sent to us by Mr. Girard, the clerk of this committee. I also thank him very much for his support as I prepared for this meeting.

Essentially, your first question deals with the relevance and content of the federal directive. As a public health physician and an officer of Montréal sans sida, the issue of the criminalization of the non-disclosure of HIV-positive status has often been brought to my attention.

Without doubt, the directive is relevant. In Canada, there have been around 200 prosecutions of persons living with HIV for non-disclosure of their HIV status. Internationally, if we judge by the texts that address these problems, Canada was perceived as a country with quite a debatable interpretation, given the reality of possible HIV transmission. So the directive comes at a good time, because it provides a much more up-to-date interpretation of the decision handed down by the Supreme Court in 2012. It is much more in step with the scientific advances on living with and transmitting HIV.

We know that criminalizing the non-disclosure of HIV-positive status is generally not recommended by public health authorities. It really does not reduce the risk of transmission. Nor does it lead to lasting changes in people's behaviour. It can even have an adverse effect on public health prevention efforts because criminalization can lead to those living with HIV being stigmatized. It can, in a way, harm the relationship between patients and their treatment teams. In certain cases, it can even lead to those at risk of contracting HIV being less willing to seek HIV screening.

The directive is being received with a lot of relief in the HIV-prevention field. Our impression is that it will reduce the use of criminal law in cases of non-disclosure of HIV. We are pleased that, finally, there is a better understanding of life with, and transmission of, HIV.

Without doubt, the directive is relevant, mainly because it is public. That goes a long way in reducing the stigma. The fact that it was made public and that there was media coverage sends a very clear and helpful message.

I will not spend a lot of time on the content, because the directive was preceded by a very substantial report on the state of the science. Essentially, we are pleased to see that the directive covers two advances that are very interesting from a medical point of view. First, there is the fact that HIV is now seen as a chronic disease that is managed medically, which greatly improves people's quality of life and life expectancy. The second very relevant medical consideration is that HIV is transmitted much less easily than was thought in the past. Scientific advances show us that, when people have access to effective prevention strategies, there is little or no risk of sexual transmission. This is the case when people have a suppressed viral load, when they use condoms consistently and engage in lower-risk sexual activity. These are all part of the directive's content and they are very helpful.

The directive has another relevant item, which provides an answer to your second question about best practices in the non-disclosure of HIV status. First and foremost, the directive recognizes that non-disclosure is really a public health problem, not a criminal justice problem. This is written right into the directive and we find it very helpful.

In fact, the actions that have proved effective in changing behaviour and preventing HIV in a lasting way, are those based on a public health approach generally referred to as a graduated intensity approach. In public health terms, this means that the actions that will be put to a person, with the intent of changing behaviour and reducing the likelihood of transmitting HIV, are based on the real risk of transmission and on an approach that is as voluntary as possible. That is the way to make lasting changes in behaviour that will reduce the risk of transmission.

In the great majority of cases, we determine the factors that lead a person to not take the precautions necessary to prevent the transmission of HIV. There is often a host of factors; they may be medical, social or cultural, and they are better dealt with by a public health approach than by a criminalization approach.

In the very rare cases where an approach of that kind does not result in voluntary changes in behaviour, there is legislation, the Public Health Act in Quebec, for example, that allows us to choose a little more coercive approach, such as disclosing HIV status without a person’s consent. However, it is extremely rare that we have to go that far. In public health, we never really need to use criminal justice to achieve our ends in terms of preventing the transmission of HIV, when the health of the general public is threatened, for example.

In our view, the best practices are those based on a public health approach.

I would not like to talk about best practises in non-disclosure of HIV without going into a more general discussion about best practises in HIV prevention. Those best practices are based first of all on reducing the stigmatization of those living with HIV and communities at risk of contracting HIV, and also on better access to services to prevent and treat HIV. That is really how we are going to achieve our public health objectives in terms of HIV.

In Canada, the vast majority of new HIV diagnoses can be attributed to those who do not know their HIV-positive status, not to those who know that they are carrying HIV, are living with HIV, and do not take the precautions necessary to avoid transmission. Those cases are really very rare when you consider all those living with HIV.

That leads us to address your third question, about the best ways for the criminal justice system and public health authorities to work together. Certainly, closer work of that kind allows us to achieve our public health objectives to a greater extent.

Beyond the important matter of criminalizing the non-disclosure of HIV status, other aspects of criminalization can adversely affect public health efforts. Montréal sans sida has gathered comments from communities. A number have told us, among other things, that everything to do with the criminalization of sex work, drug use and drug possession is a factor that leads to the increased stigmatization of communities at risk of contracting HIV and that distances them from HIV prevention services. In public health terms, that really distances us from our objectives of eliminating local transmission of HIV.

Therefore, each step that the justice system takes to move closer to public health authorities and the communities most affected by the enforcement of criminal law helps us to achieve our public health objectives.

The Department of Justice's directive and report are excellent examples of effective collaboration between the justice system and public health authorities. The justice system called on the epidemiological and methodological expertise of public health authorities in seeking a detailed knowledge of the science and how to translate it into effective legal tools. Can we not imagine that kind of collaboration for other aspects of criminal law, such as those I mentioned earlier?

I will not say more on that point, but I am very open to your questions. I really want to keep some time so that I can talk to you about some other things.

Your final question asked about the role that the federal government could play—

[The Chair, Liberal, Anthony Housefather]

Forgive me for interrupting you, but you are at nine and a half minutes. So you have about one minute to wrap up.

[Dr. Sarah-Amélie Mercure]

I will end with the idea of how the federal level can collaborate with the province on this directive. Basically, I am not at all familiar with your levers and your interfaces with the provincial level. But, at very least, it could be about highlighting the most helpful points in the federal directive. First of all, the fact that it is public. For us, that is very important in terms of public health. There is also the fact that it is science-based. In addition, it establishes the precedence of the public health approach. It also properly defines the investigation and prosecution procedures. Those are the items that are particularly important to highlight.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

The other speakers have eight minutes each. Then we will move to questions.

Dr. Bogoch.

[Dr. Isaac Bogoch, Physician and Scientist, Toronto General Hospital and University of Toronto, As an Individual]

Good morning everybody. My name is Isaac Bogoch. I'm an infectious disease and HIV physician and researcher based out of the Toronto General Hospital and University of Toronto. Thank you very much for inviting me to appear before the House of Commons Standing Committee on Justice and Human Rights to discuss the issue of criminalization of non-disclosure of HIV status.

Over the next few minutes, I'd like to touch on a few key points to frame how we can view the criminalization of HIV non-disclosure by focusing on updated science and data, and discussing the practical implications of this law. Specifically, I'd like to address two points: updates in our knowledge of HIV transmission in the current era; and clinical, public health and patient-level perspectives on the criminalization of HIV non-disclosure.

I want to do this all with an aim to demonstrate how criminalizing HIV non-disclosure is a counterproductive approach to reducing the burden of HIV in Canada and globally.

I'd like to preface these discussions with a comment that I have nothing but respect for those infected with HIV and those at risk of acquiring HIV. The goal here is really to discuss recent data, law and policy in a manner that is free of value judgment.

Let's start with the first issue and those are updates in HIV transmission and risk of HIV acquisition. Over the past decade and especially over the past three years, there have been tremendous advances in our understanding of the risks of HIV transmission, and how we can mitigate and essentially eliminate the risk of HIV transmission with drugs that treat HIV. I'll refer to those drugs as antiretroviral drugs.

Given our limited time, I'd like to highlight two studies that have helped transform global public health policy for HIV.

The first study was conducted by Alison Rodger and colleagues and was published in the Journal of the American Medical Association in 2016. In this study, 1,166 couples were enrolled, of which one of the two individuals in each couple was HIV-positive and on antiretroviral drugs. Couples included both heterosexual couples and men who had sex with men.

The study looked at transmission of HIV between individuals in each couple when condoms were not used, and if the HIV-positive person in the couple had an undetectable viral load. An undetectable viral load means that the antiretroviral medications are working and the virus cannot be detected in the HIV-positive person through conventional blood tests.

As a side note, we still know the virus is there. We still know the virus will return to detectable levels if the couples stop the medications. But if someone is taking their medications and they are effective, they will have an undetectable viral load.

During the roughly two-year course of the study, heterosexual couples reported 36,000 condom-less sexual acts and men who had sex with men reported 22,000 condom-less sexual acts. How many cases of HIV transmission were there within couples when the HIV-positive individual had an undetectable viral load? The answer is zero. There were zero cases of HIV transmission. That's an important number to remember. Zero cases of HIV transmission if someone is HIV-positive, taking their antiretroviral medications and has an undetectable viral load.

The second study I'd like to touch on has some Canadian content to it. It was led by Jennifer LeMessurier, and other Canadian physicians and scientists, and was published in the Canadian Medical Association Journal in 2018.

This is an interesting study, because it's a systematic review. A systematic review means that they evaluated several published studies, such as the one I just mentioned, and they combined all the findings of these prior studies into one big study for a more powerful look at the risk of HIV transmission, especially when one person has an undetectable viral load.

They included 12 studies here which gives a much larger sample size and adds tremendous validity. They tabulated the number of times the virus was transmitted from an HIV-positive person with an undetectable viral load to an HIV-negative person. They reported this as the number of HIV transmissions per person-years. Just like the study above, this one was commended for including both heterosexual couples and men who had sex with men.

In 1,327 person-years, there were zero cases of HIV transmitted from an HIV-positive person with an undetectable viral load to an HIV-negative person. Zero. Remember that important number? That number is zero.

These are just two examples of high-calibre studies published in high-impact, peer-reviewed medical journals. There are other studies that confirm these results as well.

These data and others are the impetus for what is now known as the U equals U movement. U equals U stands for “undetectable equals untransmittable”. This means that if an individual is HIV-positive, taking antiretroviral medications and has an undetectable virus for about four to six months, then that individual is untransmittable. That means that he or she can not transmit the virus to others.

U equals U is now adopted by major global public health bodies, such as the Joint United Nations Programme on HIV/AIDS, UNAIDS, the World Health Organization, the United States Centers for Disease Control and Prevention, the European Centre for Disease Prevention and Control, and, more locally, by the Canadian Minister of Health Ginette Petitpas Taylor and by Canada's chief public health officer, Dr. Theresa Tam.

In Canada, we have about 65,000 people living with HIV and about 2,500 new cases of HIV per year in the country. Roughly 20% of HIV-positive individuals are unaware of their diagnosis and not on treatment. These are the individuals who are at risk of transmitting the infection to others.

HIV treatment is readily available in Canada, but we must do better to reduce as many barriers as possible to enable access to HIV testing, treatment and prevention. The Canadian Criminal Code should be amended so as to not charge people if they are HIV-positive but have a zero to negligible chance of transmitting the virus to others, such as those taking their HIV medications with evidence of an undetectable viral load. There is an urgent need for Criminal Code reform in order to remove the offence from the realm of sexual assault law and have it focused on intentional and actual transmission.

The December 2018 federal directive, published in the Canada Gazette, that provides prosecutorial guidance on HIV non-disclosure highlights this and is a step in the right direction, but more needs to be done.

Given the enormous stigma that HIV continues to have in Canada and globally, our current Criminal Code is a barrier that prevents or delays people from getting tested for HIV. I hear this in my clinic at the Toronto General Hospital regularly. Many patients are scared to get tested and delay getting tested for fear of legal repercussion. Remember: those who are HIV infected and not taking medication are at greatest risk of infecting others, and this is contributing to the ongoing epidemic in Canada and globally.

Canadian law is preventing people from getting tested and placed on effective treatment that would eliminate the risk of transmitting HIV to others. It is crucial to end the use of sexual assault law as the means of criminalizing HIV non-disclosure and limit any use of the Criminal Code only to cases of intentional and actual transmission of HIV to another person.

If we're ever going to stop this epidemic—and we will—we must support law and policy that meet the needs of those who are infected with or at risk of HIV in a caring, supportive and value-judgment-free environment.

The current Canadian Criminal Code does not support these objectives. It further stigmatizes those with HIV and it's counterintuitive. Criminalizing HIV non-disclosure may facilitate HIV transmission as it is a barrier to those who may get tested and placed on effective therapy. We can stop HIV in Canada and globally, and amending the Criminal Code would be a smart step in the right direction.

Thank you very much for your time.

[The Chair, Liberal, Anthony Housefather]

Thank you very much. You'll be very happy to know you hit 7 minutes 59 seconds.

[Dr. Isaac Bogoch]

I practised.

[The Chair, Liberal, Anthony Housefather]

Amazing.

Mr. Shime, the floor is yours.

[Jonathan Shime, Lawyer, As an Individual]

Thank you.

Good morning. My name is Jonathan Shime, and I am a criminal lawyer with Cooper, Sandler, Shime & Bergman LLP in Toronto. For the last decade a significant portion of my practice has been devoted to representing people charged with the non-disclosure of HIV. I also act as counsel for several provincial and national HIV organizations.

I would like to thank the committee for inviting me here today. It is a very encouraging sign that the committee is meeting with and consulting with a broad section of people who have been affected by HIV and the overuse of the criminal law in Canada to prosecute those who do not disclose their HIV status. I hope going forward that these consultations will continue, in particular with members of the queer, black and indigenous communities.

On the topic of indigenous communities, I wish to acknowledge that we are meeting on aboriginal land that has been inhabited by indigenous people from the beginning. In particular, we acknowledge that the land on which we gather is a traditional unceded territory of the Algonquin Anishinabe people. This acknowledgement is critical as part of our responsibility to work toward reconciliation with our indigenous communities. However, it must be more than just lip service that we do at the beginning of each meeting. In this particular context, it means we must acknowledge the disproportionate impact HIV has had on indigenous communities.

In 2016, the Public Health Agency of Canada estimated that approximately 63,000 people were living with HIV including AIDS. Approximately 9.6% of those people were indigenous, whereas indigenous people only represent 4.9% of the total Canadian population. Moreover, the estimated HIV prevalence rate for indigenous people in Canada in 2016 was 362 per 100,000 members of the population, twice as high as the prevalence rate in the general population. This means that a disproportionate number of people living with HIV in Canada are indigenous and their numbers are growing rapidly, more rapidly than the general population.

This has very real implications for our discussion. It means more and more indigenous people may be subject to the criminal law for non-disclosure, exacerbating the already disproportionate number of indigenous people engaged with the criminal justice system and in our jails. This has serious implications for our efforts to extend public health to our indigenous communities. It stigmatizes those with HIV, making testing and treatment less likely. This in turn, as you've already heard, aggravates the risk of the spread of HIV.

Indigenous communities have many needs: clean water, local and effective schools, community centres, and culturally appropriate counselling to address the intergenerational trauma of the residential school system and the sixties scoop. They do not need more people from their communities living with HIV and subjected to the criminal law and incarceration.

More broadly, I've had the opportunity to work in this area for many years as counsel. I've also reviewed the testimony from the witnesses heard previously by this committee. I wish to identify several key themes that emerge, and either have been or will be addressed by panellists today. They include the following themes.

The vast majority of people living with HIV in Canada disclose their status to their sexual partners because they are tremendously responsible about their own health and the health of their partners.

We have thankfully made great progress in our understanding of the science of HIV and the statistically negligible risk associated with sexual activity with someone who is living with HIV. This includes the recognition that there is no realistic possibility—zero, to echo a theme—of transmission from people with a suppressed viral load or who use a condom. Sadly, the criminal law has been too slow in recognizing this reality and as a result people who were no risk to others have been unfairly charged, convicted, sent to jail and stigmatized as sex offenders. A mechanism is needed from this committee, a recommendation, to review those convictions and right those past wrongs.

While the December 2018 federal directive is an important step in the right direction, more work needs to be done to ensure that the law related to the non-disclosure of HIV accords with our scientific understanding and does not imperil public health initiatives in this area.

As a general rule, the criminal law is a blunt instrument that must be used sparingly to ensure that only those who are deserving of its sanction are prosecuted. A poor understanding of HIV and the negligible risk associated with sexual activity with someone living with HIV has resulted in significant over-criminalization.

The use of sexual assault law in particular to prosecute those who do not disclose their HIV is overly punitive, increases the stigmatization of people living with HIV, and runs contrary to important public health efforts to maximize testing and open communication with health care providers who become witnesses in criminal proceedings against their own patients. Accordingly, the use of sexual assault law in the Criminal Code to prosecute these offences must be abandoned.

Given that HIV should properly be considered a public health issue, there is no reason why public health regulatory statutes cannot be used to ensure that those people whose conduct warrants state intervention are subject to it from that statutory authority.

For example, in Ontario the Health Protection and Promotion Act allows the medical officer of health in order to decrease or eliminate the risk to health presented by a communicable disease to “require a person to take or to refrain from taking any action that is specified in the order in respect of a communicable disease.” This order may include “requiring the person to whom the order is directed to conduct himself or herself in such a manner as not to expose another person to infection.”

For those who are concerned that this is not a significant enough statutory sanction in the circumstances, the statute allows that if a person fails to comply with such an order from the medical officer of health, they can be brought before a judge of the Ontario Court of Justice who can order, among other things, that the person conduct himself or herself in such a manner as not to expose others to infection. The judge can further order that the person be taken into custody or detained in a hospital or other appropriate facility for a period of not more than six months. In other words, the regulatory regime has all of the necessary requirements that one needs in order to address concerns about the non-disclosure of HIV without the concerns that arise from criminalization and stigmatization under the Criminal Code.

The use of regulatory public health statutes would allow for state intervention in appropriate circumstances, including arrest and detention if need be, without resorting to the heavy hand of the criminal law.

If Parliament deems that there must be some role for the criminal law, then its use should be limited to cases where there is an intentional and actual transmission of HIV, as in England, Wales and more recently in California through Senate Bill 239. This was called for in the Community Consensus Statement endorsed by 174 organizations across this country, which I know was previously provided to this committee.

Whatever offence is considered under the Criminal Code, it should not be based in sexual assault law. People who do not disclose their HIV status should not be stigmatized as sex offenders on sex offender registries in the same way as pedophiles and those who engage in coercive sexual conduct.

We would encourage Parliament to consult broadly with the interested parties to consider other options including the potential use of the charge of criminal negligence under the Criminal Code.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Now we will go to Mr. Peck.

[Ryan Peck, Executive Director and Lawyer, HIV & AIDS Legal Clinic Ontario]

Thank you and good morning.

I echo the acknowledgement, recognition and commitment to reconciliation noted by my good friend Jonathan.

I thank the committee members for taking the time to consider this vital issue and for including me.

I am a lawyer and the executive director of HALCO, the HIV & AIDS Legal Clinic, the only legal clinic in the country devoted exclusively to the HIV community. In addition to providing direct services to people living with HIV throughout Ontario, we engage in public legal education and law reform activities.

The criminalization of HIV non-disclosure permeates all of our work; whether advising clients, conducting workshops, engaging with policy-makers or intervening before courts such as the Supreme Court of Canada, it is ever-present. But before getting to the law, its impacts and what is required moving forward, it's worth taking a moment to remind ourselves once again of the reality of HIV today. There is some really beautiful news about HIV. People who have access to sustained treatment and care have more or less the same life expectancy as those who are HIV-negative. That ought to be celebrated.

Knowledge of prevention strategies is better than ever, and it is much harder to transmit HIV than was generally supposed. We heard about that this morning. The risk of transmission is zero if a condom is used properly and remains intact—it's very important not to forget condoms—and of course when a person living with HIV has a suppressed viral load.

While this reality must not be ignored, it is also very important to remember that many people face significant institutional, social and economic barriers to accessing health care and life-saving medications. Moreover, social attitudes towards people living with HIV have not nearly kept pace with the science. In other words, HIV-related stigma and accompanying discrimination remain entrenched and pervasive across the land. It's shameful that, as per a 2012 Canada-wide study prepared for the Public Health Agency of Canada, 24% of those surveyed felt uncomfortable wearing a sweater once worn by a person living with HIV. Twenty-two per cent felt uncomfortable shopping at a small neighbourhood grocery store if the owner was known to be living with HIV. As per a 2018 study, just a few months ago, 15% of Canadians felt afraid of getting HIV when they were near someone living with HIV; 25% believed that individuals might not get tested because they feared that people would find them out and treat them differently; and 71% believed that someone living with HIV would hide their HIV status from others for fear of the stigma associated with HIV.

As a result of these attitudes, legal issues abound. From being denied services to being refused accommodation in the workplace, human rights concerns are widespread. Privacy is a constant worry for many, whether related to institutional actors, service providers or neighbours, and legal recourse may be difficult or impossible to obtain. And of course, as we are here to discuss today, Canada remains a world leader in prosecuting people living with HIV, with upwards of 200 such prosecutions.

It really is impossible to overstate the manner in which over-criminalization—which is a term used explicitly by the federal government—impacts the HIV community.

To begin with, people do not know what kinds of behaviours are going to land them in jail. There are quite different approaches throughout the country. Remember, the charge is almost always aggravated sexual assault; one of the most serious offences in the Criminal Code, one designed to respond to the most sickening and horrific of forced sex acts. Canada is the only country known to take such an approach.

The consequences related to a conviction are wildly serious. For example, a conviction attracts a maximum life sentence and leads to a presumptive lifetime inclusion on sex offender registries, which brings with it enormous stigma and long-term life-changing consequences, not to mention severely diminished employment opportunities. For those who are not citizens, a conviction more or less leads to deportation. To top it all off, people are prosecuted not only when there is no allegation of transmission or no intention to transmit, but in circumstances where the sexual activity in question poses negligible to zero risk of transmission.

Even in circumstances when charges are ultimately not pursued or there are acquittals, police forces often issue press releases containing photos and health information. Such disclosures can and do have drastic consequences, ranging from loss of family, friends, employment and housing, to violence.

The uncertainty of when over-criminalization may strike, combined with the impacts of a conviction, would be difficult for anyone, but it has particular implications for a historically stigmatized community. It also adds severe stress to immunocompromised, and oftentimes marginalized, individuals.

Moreover, we routinely hear of the fear that a vindictive ex-partner will approach the police and prosecutions will follow. We also hear of the ways in which abusive partners use the criminal law to further their abuse by threatening to go to the police unless their partner continues to do what the abusive partner wants them to do—extortion.

Sickeningly, we hear that some women living with HIV who experience sexual violence are deeply concerned about responding for fear that they will be transformed into an accused person and themselves charged with aggravated sexual assault.

Over-criminalization is also dramatic from a public health perspective. It hinders HIV prevention efforts and hampers care, treatment and support for those living with HIV by providing disincentives for testing, as we've heard, and deterring honest and open conversations with health care and other providers, including public health authorities, for legitimate fears that such conversations will be used in court.

In short, the law is way out of step with science and human rights, and hampers care, treatment, support and HIV prevention efforts. As the federal government has recognized, it also has a disproportionate impact on indigenous, African-Caribbean black and gay persons.

To be blunt, there is a feeling in the HIV community that the medical condition itself is being criminalized, not any behaviour. This is unacceptable and it must change.

We commend the federal government for the recently issued directive on limiting HIV non-disclosure prosecutions. This was a step in the right direction, but more is needed to further limit the over-criminalization of people with HIV. The federal government must bring the law in line with science and human rights in a manner that is supportive of HIV care, treatment and prevention. This can be done by removing the offence from the realm of sexual assault, and focusing on intentional and actual transmission. Such Criminal Code reform is urgently required and it must take place in consultation with the HIV community.

In conclusion, I respectfully urge you to strongly recommend that the government immediately begin work with the HIV community on Criminal Code reform.

Thank you. Meegwetch. Merci.

[The Chair, Liberal, Anthony Housefather]

Thank you very much. All of your testimony has been very helpful.

Now we move to questions.

We're going to start with Mr. Cooper.

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

Mr. Chair, thank you very much; and thank you to the witnesses.

Let me just say at the outset that I fully agree that where someone is HIV-positive, is taking antiretroviral medication and has an undetectable viral load, they shouldn't be prosecuted. I also support the directive that was issued by the Minister of Justice.

That said, I've also looked at the Supreme Court decision, the most recent one, in Mabior, where the law provides that there must be a dishonest act, and secondly, there must be a significant risk of serious bodily harm. It is further defined in that decision.

I'm in the process of going through 59 reported cases since 1998. I haven't gone through all 59 of those yet. Can you cite any cases where someone was prosecuted and convicted who didn't have intention and was at a low viral load? It is true that there have been some cases where individuals were prosecuted, but in all the cases I have seen to date, they were ultimately acquitted.

[Jonathan Shime]

As one of the two lawyers on the panel, I'm happy to do the first response. Ryan may have some thoughts too.

There are two components, I think. The first component, which is slightly indirect, is that doesn't take into account the impact of the criminalization on the community; second is the impact it's had on those people who have been charged and, even if they've been acquitted, have been dragged through the criminal justice system, and more broadly the consequences of that for public health initiatives.

In terms of convictions, I currently act for two people who I will not name publicly before the committee; both of them on appeals; both of them before the Court of Appeal for Ontario; both of them convicted. One we know to be what's called a “non-progressor”. A non-progressor means they are able to control their body for some unknown reason, able to control their viral load in the absence of any medical intervention, so no medicine is needed. Just their bodies are able to keep the viral load basically at undetectable levels. At some point, if they eventually progress, then there can be a medical intervention with the antiretroviral therapy, but for most of these people, it's not necessary.

This gentleman had an undetectable viral load. He engaged in a sexual relationship with a woman over a few months and he was convicted at trial notwithstanding that the expert evidence at trial, called as an expert with the consent of the crown attorney, said that there was statistically a negligible risk that the non-progressor by virtue of his naturally suppressed viral load could ever pass the virus on to the complainant. Despite that, the judge convicted. That's one.

I just finished an appeal about six months ago for a gentleman on a series of offences. One of them was that he engaged in sexual activity with a partner, with a condom, and the evidence seemed to suggest he didn't even ejaculate. In the absence of ejaculation, there is no transmission of bodily fluid, and if there's no transmission of bodily fluid, there can be no risk of HIV transmission. On top of that, it was acknowledged by both parties that he wore a condom. He was convicted at trial. His appeal is currently being considered by the Court of Appeal for Ontario.

Both of those gentlemen represent circumstances where people have been convicted where there was no risk of transmission and where steps were taken through natural body protection in terms of viral load and/or condom use and non-ejaculation. Notwithstanding that, the courts convicted.

There are at least two examples on just my roster as criminal counsel where that has occurred.

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

But where it's not negligible, is there not some duty to inform the other partner, having regard for the principles enunciated at the Ewanchuk decision, for example?

[Jonathan Shime]

We were there on Mabior. Mabior contemplated and was well aware of Ewanchuk. It was post-Ewanchuk, and they drew the line. Where they drew the line—you're correct—was where there was a realistic possibility of transmission or a significant risk of serious bodily harm. But I think the evidence you're hearing now is that since Mabior in 2012—and frankly to some extent at the time—the science already demonstrated, and it certainly does now, that one doesn't need both a condom and a suppressed viral load.

If the Supreme Court of Canada technically had used the word “or” instead of “and”, those two categories would have been precluded from prosecution—condom use or a suppressed viral load. In those circumstances, that would have been more in accord with the science, even as we understood it at the time in 2011-12.

Now as we understand the science even better, there are still prosecutions going on, certainly in Ontario, of people who have suppressed viral loads and don't use condoms, or who have suppressed viral loads and may or may not use condoms.

Those prosecutions are still going on. They're still actively happening in my office.

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

Okay, thank you.

[The Chair, Liberal, Anthony Housefather]

Mr. Shime or Mr. Peck, can I just ask this, if you wouldn't mind? I know Mr. Cooper is going through the 59 cases, which I think is incredible. Could you at some point send us the list of cases that you would like us to look at—people who have been convicted, who either used a condom properly or who have a suppressed viral load, in recent years. I'd appreciate that so that I don't have to read 59 different cases. Thank you.

Go ahead Mr. Peck.

[Ryan Peck]

At least 10 cases post Mabior involved accused with lower undetectable viral load, and of those 10, nine occurred in Ontario. One of them involved a woman living with HIV. The allegation was with regard to three incidents of sex. She had an undetectable viral load. In one of the incidents of sex, the sexual partner, a man, performed oral sex on her.

She was charged, and the prosecution pursued that. She was ultimately acquitted in relation to oral sex, but it's frankly shocking that it was found to be in the public interest to pursue a prosecution for aggravated sexual assault in relation to oral sex. She was ultimately convicted in relation to vaginal sex without a condom, even though she had an undetectable viral load. What that means is that in law, she is now considered a violent rapist. Frankly, it's a travesty.

More and more feminist socio-legal scholars are recognizing and acknowledging that this is an inappropriate and in fact problematic use of sexual assault law, including the Women's Legal Education and Action Fund, which has historically been the leader when it comes to legal issues facing women. They released a paper calling for the removal of the offence from the sexual assault realm.

That's just to respond to your comments about Ewanchuk.

[The Chair, Liberal, Anthony Housefather]

Thank you very much. That was very helpful.

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much, Mr. Chair.

My thanks to everyone for being here today.

Dr. Mercure, my question is for you. Could you tell us more about cases in which people do not know whether or not they are HIV-positive and do not want to know because that could have consequences for them?

[Dr. Sarah-Amélie Mercure]

A number of studies have been conducted about people's intentions to have an HIV screening test, because they know that not disclosing that they have HIV could land them in prison. The criminalization of the non-disclosure of HIV-positive status makes people say, according to the surveys, that they prefer not knowing whether they have HIV rather than knowing that they do and risking prosecution if they do not disclose that they are HIV-positive.

[Colin Fraser, Liberal, West Nova, NS]

Do you see that problem in your practice?

[Dr. Sarah-Amélie Mercure]

We do see that problem in our work. The stigmatization that comes with HIV and the requirement to reveal one's HIV-positive status slows down the process of going for screening. This harms people personally, and may well harm their sexual partners.