Justice Committee on April 30th, 2019

[Dr. Sarah-Amélie Mercure]

People like that do not get to me. I work in a clinic that provides screening and treatment. Generally, the people we see have managed to get to us; they are ready to be tested, and to be treated if necessary. We do not see people who are afraid to know their HIV status for those reasons.

Sometimes, we see people who do not want to know their HIV status but want to have all the other screening tests, such as for bacterial infections, because they know that those are easily treated and fewer legal consequences are involved.

However, most people who do not get screened for HIV because they are afraid of being criminalized, simply do not seek any health services at all. At that point, they receive none of the services they need.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you, Dr. Mercure.

I have a quick question for Dr. Bogoch. You said that we'll end the epidemic. How many years until we end the epidemic, and how much faster could we do it if we changed the Criminal Code on this issue?

[Dr. Isaac Bogoch]

The answer is that we obviously have several barriers to appropriate HIV care that are preventing diagnosis, treatment and prevention. This is but one of several barriers. Changing the Criminal Code would eliminate some of these barriers and would really send a message to people who are at risk of acquiring HIV and even those who are HIV-positive that it's okay to have HIV and, as we've heard, people can live a long, healthy, happy, normal life with HIV. This would significantly improve our goal of essentially eliminating HIV in Canada and globally, and we can do it with the tools that we have now.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you.

Ms. Khalid.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you.

I just have a few short questions.

Mr. Shime and Mr. Peck, if I can turn to you, Mr. Peck talks a little bit about the federal directive. I'm asking basically, when it comes to provincial prosecution policies and federal prosecution policies, what's the difference and how can we align them? Would alignment have an impact?

[Ryan Peck]

That's an excellent question. We've been working for many years to encourage the Ontario government to develop sound guidance. Unfortunately, we're not there.

The directive, which as you know is applicable only in the three territories, is a really fantastic guide. We believe that it could go a little bit further. Remember, it does not remove the offence from the sexual assault realm, but in terms of reducing the harms of the current law—while we engage in hopefully the legislative process to remove it from sexual assault and focus on actual and intentional transmission—it is a really important document. Maybe through an FTP meeting there can be discussions about alignment. Frankly, I'm not quite sure how you can convince every province to do so, which is more or less why we need legislative reform.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

I think that's it. I'm out of time.

[The Chair, Liberal, Anthony Housefather]

I'm going to grab Mr. Fraser's last minute, and I have one scientific question that I want to go to Dr. Bogoch on.

I understand that the point of view is that only intentional and actual transmission of HIV, if anything, should be criminalized. I want to get to the scientific realm in case there's a different conclusion. It's clear to me from what you said that with an undetectable viral load, you can't transmit HIV. With proper use of condoms, you can't transmit HIV. You mentioned four to six months for the undetectable viral load, so I just wanted clarification on why, once you test that your viral load is undetectable, it would have to be four to six months before you would know for sure that it was not able to be passed on.

Secondly, is there not another situation? For example, let's say your partner advises you that the partner is on PrEP. Would that not be another occasion where you would not scientifically be able to transmit the virus and, at that point, you should not be criminalized for non-disclosure? Maybe you could just clarify.

[Dr. Isaac Bogoch]

Those are both great points.

The first issue is why the four to six months? Essentially, the medications are reducing the burden of HIV in an individual from a lot to a tiny, tiny amount. Essentially the four to six months basically ensures that someone is continuing to take their medication and is continuing to suppress their virus. If someone is not adhering to their medications or if, for whatever reason—maybe they're on the wrong medication and there's resistant virus and there's a detectable viral load—that person is at risk of transmitting. If people get tested every six-ish months, and it's consistently suppressed, we know that the risk is basically zero. That's issue number one.

The second issue is about HIV pre-exposure prophylaxis, also known as PrEP. We know that people who are HIV-negative but at risk for HIV acquisition for whatever reason—so they're HIV-negative individuals at risk for HIV acquisition—if they take a tablet that's an antiretroviral medication—and most people will take one of these tablets per day—they can almost completely reduce their probability of acquiring the infection. In medicine, just like in life, nothing is 0.0% or 100%, but with PrEP, if people are taking their PrEP, they will essentially eliminate their risk of getting HIV. That would also essentially eliminate the risk of transmitting HIV to someone else, because they can't get HIV.

Those are two excellent points to bring up in this committee. Thank you for bringing those up.

[The Chair, Liberal, Anthony Housefather]

Thanks very much.

These witnesses have all been amazing in giving us information.

I am very grateful to you for your contributions today.

To come back, Mr. Shime or Mr. Peck, I would appreciate also if you could send us the list of any cases you want us to read and review based on that premise.

[Jonathan Shime]

Sure.

Thank you for that.

[The Chair, Liberal, Anthony Housefather]

Thank you so much. I will ask the next panel to come up, and we'll just rotate. The meeting is suspended for one minute.

[The Chair, Liberal, Anthony Housefather]

We're resuming our meeting on our study of criminalization of non-disclosure of HIV status. We're joined by our next panel of distinguished guests. Joining us from the Canadian Aboriginal AIDS Network is Mr. Merv Thomas, Chief Operating Officer, who is joining us by video conference from Burnaby.

We're joined from the Canadian Coalition to Reform HIV Criminalization by Mr. Chad Clarke and Ms. Valerie Nicholson. From the Community-Based Research Centre we have Mr. Brook Biggin, Director, Program Development, Scale-Up and Implementation. From the Parkdale Queen West Community Health Centre we have Ms. Maureen Gans, Senior Director, Client Services. Welcome, all.

You each have eight minutes, but I will let you go up to 10 minutes before I cut you off.

Mr. Thomas, because you're on video conference and we don't want to lose you, I'm going to ask you to go first, please.

[Merv Thomas, Chief Operating Officer, Canadian Aboriginal AIDS Network]

My name is Merv Thomas. I'm a Nehiyaw-Cree from Saskatchewan.

I want to begin by acknowledging the Algonquin people on whose territory in Ottawa this meeting is being held. I'm video conferencing from the Coast Salish territory in Vancouver, B.C.

I want to thank this committee for the invitation to appear as a witness. I'm here as the Chief Operating Officer from the Canadian Aboriginal AIDS Network, a position I hold in a part-time capacity. I also work at the Circle Of Eagles Lodge Society as the chief executive officer, so I bring a unique perspective in working closely with indigenous people in the field of HIV as well as assisting indigenous people in reintegrating back into society.

CAAN's main mandate is HIV, but in 2013 it expanded its mandate to include hepatitis C, sexually transmitted blood-borne infections and tuberculosis, mental health and comorbidity issues. The Circle Of Eagles Lodge Society operates two halfway houses and several other cultural programs.

I was born and raised in Saskatchewan. I saw first-hand and felt the impact that colonialism, systemic discrimination, racism, the residential school system and the laws and policies of Canada have contributed to and continue to contribute to the overwhelming representation of indigenous people who are incarcerated.

In 2017, 92% of people incarcerated in Saskatchewan were indigenous. I also know that Saskatchewan has the highest rates of HIV, with approximately 80% of those living with HIV identifying as indigenous. This discussion with the House of Commons justice committee and these laws that are being discussed here are contributing to the challenges and the overwhelming representation of indigenous people incarcerated and living with HIV.

I want to discuss some of the stats as found in the Auditor General's report as they relate to indigenous peoples in the federal corrections system. That office stated:

In the ten-year period between March 2009 and March 2018, the Indigenous inmate population increased by 42.8% compared to a less than 1% overall growth during the same period. As of March 31...Indigenous inmates represented 28% of the total federal in-custody population while comprising just 4.3% of the Canadian population.

When it relates to HIV, I want to point out that indigenous people continue to bear the burden of overrepresentation of HIV and AIDS. The trend continues to rise as indigenous people turn to substance use to address their trauma. Injection drug use is the vehicle that drives this epidemic.

In B.C. we are experiencing an opioid crisis, but this crisis is also spreading to other regions, and the time to act is now. Many indigenous people who are involved in the criminal justice system are at high risk. Most of those involved in the justice system are dealing with addictions, and they are impacted.

I want to share the story of a young man from Regina, Saskatchewan. He was a gang member, a young man, 23 years old. He had three children. He was transferred to the Pacific region because he wanted to leave the gang and start a new life for his wife and children and to make a new start with hopes of making a positive change in his life. He arrived at a Circle Of Eagles Lodge Society halfway house, but he went AWOL shortly thereafter. He came back to the halfway house, clearly under the influence of some substance, a few days afterwards. Before he could get picked up, he left once again.

I received a call stating that he was in a coma in the hospital. I went with another staff member, and we stayed with A.B. until he passed on to the spirit world that evening. Calling his mother and hearing her weep is one of the hardest things that I have had to do in my career.

It was not until much later that I found out he was also living with HIV. This brings up another point that I am hoping may be addressed. It is very difficult to be living with HIV in the community due to stigma and discrimination. Imagine what it would mean for an HIV-positive man in a federal institution. Openly disclosing your status within the prison population has dangers not experienced in a community. We also know that indigenous people are leaving their homes and reserves to access health care, but they are also fleeing persecution. Due to their HIV status, many are not allowed back home.

One of the other challenges faced by the Circle Of Eagles Lodge and by organizations that are helping indigenous people as they transition back into the community is accessing medical information. For example, we continue to see many people discharged without valid ID, but what I do question is what is happening for those who are living with HIV in terms of their ability to access an HIV doctor or specialist. How are they being assisted, thus ensuring that they continue to receive their medications once they have been released? In the case of A.B., what supports were in place to help him with HIV?

Research has shown that a person who's on medication and is undetectable is also untransmittable. On World AIDS Day and during last year's Aboriginal AIDS Awareness Week, the honourable health minister Ginette Petitpas Taylor reiterated Canada's position that U equals U.

I'm very concerned that Canada continues to criminalize addictions and HIV, rather than dealing with them as a health issue. I'm also concerned that the term “harm reduction” is often used, but there is no real appetite to ensure that all levels of government are working in concert.

I want to point out the Portugal model as a consideration for this committee and the federal government. By decriminalizing addictions, they lowered their incarceration rates and lowered their HIV rates considerably.

At the Aboriginal AIDS Awareness Week harm reduction day last year, CSC reported that they had distributed seven needles since they began handing out clean needles in prison. This needs to improve.

The Truth and Reconciliation Commission has several key calls to action. This committee can assist in answering those calls. There are several for health, such as recommendation 19, which states, “We call upon the federal government, in consultation with Aboriginal peoples, to establish measurable goals to identify and close the gaps in health outcomes between Aboriginal and non-Aboriginal communities...”. That part also addresses mental health, chronic diseases, illness and injury incidence and availability of appropriate health services.

As it relates to justice, they call on the federal and territorial governments to provide sufficient and stable funding to implement and evaluate community sanctions that will provide realistic alternatives to imprisonment for aboriginal offenders and respond to the underlying causes of offending.

In the interests of time, I'll save a few of those other ones, but if you want to check them, numbers 30, 31, 32 and 33 of the Truth and Reconciliation Commission's calls to action relate to what we're discussing today.

Criminalization of HIV is not a just law. There are alternatives.

[The Chair, Liberal, Anthony Housefather]

I'm sorry, Mr. Thomas. We just had an indication that there's going to be a vote in 30 minutes.

Can I have unanimous consent to continue for 15 minutes, then break 15 minutes before the vote? I'd ask as many of us as possible to come back after the vote to hear the rest of the witnesses.

We're going to have to break at some point, probably after the first two, and come back for the last two.

Please continue, Mr. Thomas.

[Merv Thomas]

I have a few more things.

There are alternatives. I totally agree that those who are intentionally spreading the virus should be dealt with, but we need to find alternatives that will assist indigenous communities that are experiencing and bearing the burden of HIV, overrepresentation in the justice system, and other immediate concerns such as the opioid crisis. We cannot continue to treat people who are in addictions and those who are living with HIV as criminals.

I want to end on a promising note. We have found that it is possible for people to change. We need to allocate resources to helping people deal with their traumas, rather than opening more jails. We need to help indigenous people survive another day by providing cultural supports.

The CAAN board chair, Val Nicholson—I'm happy to see her here—said it best that addictions go away when you deal with your trauma. There is hope in culture, elders, ceremonies, protocols and traditions. Implementing the Truth and Reconciliation calls to action for more healing lodges will provide cultural supports for people who have been dealt with very harshly by this government, by the churches and by all levels of the colonial system.

Thank you for listening.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We'll go to the Canadian Coalition to Reform HIV Criminalization, please.

Mr. Clarke and Ms. Nicholson.

[Chad Clarke, Member, Canadian Coalition to Reform HIV Criminalization]

Thank you to the committee for having me today. I stand before you first as a warrior, secondly as a survivor of HIV non-disclosure.

The Right Honourable Pierre Elliott Trudeau once famously said, “There's no place for the state in the bedrooms of the nation”, and yet Canada is a world leader in convicting people for HIV non-disclosure.

I am one of those 200 plus people who were convicted, sentenced. My life came to a stop on February 12, 2009. That was the day I received a life-changing phone call telling me I had a Canada-wide warrant for aggravated sexual assault. My knees buckled.

I'm a father. I'm a grandfather. I'll get to that after because right now, with what's going on, I don't get to see my grandson. How do I tell a 22-year-old who googles everything that I don't have that vulnerable person...? I'm a family man.

I want to take you back to who I was before these charges were brought into my life. I worked for Parker-Construction in Windsor, Ontario, where I had recently been promoted to fire tear out lead hand. I worked 60 hours a week, at $22.50 an hour, with company benefits and a gas allowance card. I was set in my life, a father of two kids, Tyler and Kayla, who were 14 and 13 at the time, the important time in a teenager's life. How was I going to break the news to them that their dad was leaving?

I turned myself in on this charge the next day. I was denied bail, and we know in Canada that when you're denied bail you have to wait 90 days before you can go to high court bail. I got myself a lawyer. I went to high court bail. I was once again denied bail.

I would attend court over the next 13 months while I was being held in custody. I want to bring you back to when I turned myself in and I was denied bail. Upon going into the correctional system, I did not receive my medication for two weeks. The only time I've ever become detectable is when I was in the prison system. I'm now going on 15 years living with HIV and I'm undetectable. I was undetectable at the time that these charges were brought against me.

I would attend court over the next 13 months while I was being held in custody. I was told I was facing 10 to 15 years. I didn't have my blood tested for 28 months, so how were they assuring me that I was getting the best health care while I was in the prison system?

You may not know this but when you're on the remand side, awaiting trial or waiting to be set free, there is no health care. I couldn't see a dentist until I was sentenced, so I sat there with an infection to the point where the dentist inside the prison could not go any further without going into my nasal cavity.

I'm now figuring out life after prison as Chad Clarke, the convicted sex offender. I've been given a second chance in life. I'm the proud grandfather to a four-year-old grandson named Gavin, which is Gaelic for “hawk of battle”. When I first met the round table, I was told I would get to see my grandson because we were going to do something. I'll keep going and going even to my last breath to tell you guys that we need to do something.

I don't even need to look at this; I'm just going to talk from my heart. If I went through this, and the 200 people we were able to connect with in Canada went through this, how many others are there out there?

There have been many times when my PTSD has gotten to me, when I wish I would have gotten the 25 years and walked out with a clean slate rather than having to walk into society as a registered sex offender. That's the part I have a problem with—the part where the mental health issues I had before going into prison have accelerated since being in prison.

I isolate myself a lot. I've lost a lot of family members. I have one brother, out of three brothers, who gets it, who is willing to sit and forgive and forget what I did to the rest of the family. As I said, I'm a family man. My family is well known in the southwestern Ontario area. I live five minutes up the road from my family—my mom and dad. They don't wave to me when they drive by. They won't even acknowledge me.

I'm sorry I'm taking so much time. This is my life. I live every day with that title of aggravated sexual assault. My son is 24. He has a mild intellectual disorder, but he gets it. My son has come to me many times saying, Dad, if I could drain all my blood out today and give it to you so that we could all forget about this once and for all, I would do that for you. That's why I'm going to sit at this table and many more tables until we get this right.

I had the opportunity to speak in Amsterdam at the International AIDS Conference. One of the things that was asked of me was what Canada can do. I'll be honest with all of you in this room that I was a little upset. I wanted to say what I really felt we could do. I said if Canada is serious about getting to 90-90-90, stop criminalizing people for HIV and become the test block.

Second, why are there only four provinces in Canada where antiretroviral medication is readily available? That tells me right there that we have an issue.

We heard the federal health minister in Amsterdam after I said if Canada is serious about doing this, don't endorse U equals U; sign on, since Canada is a world leader in convicting people. That's the first step. The science proves that after three months.... I became undetectable after being on medication for three months when the charge was brought before me. I was on medication for only eight months. I didn't know the longevity of HIV. I had no clue what was coming next. What I did know was that I was going to jail because there was the phone call.

I reached out to the Byng clinic, and got on medication and I've adhered to my medication all the time. I speak to intravenous drug users. I've given them an entity, because you have to build trust with them. I've been there myself in some of the poor choices I made as a young 18-year-old who ran away from a town of 2,500. I was an altar boy, raised on a farm.

When you give those people a voice, with regard to the sex they're having or the drugs they're doing, and you allow them to, they will tell you what the problem is, what barriers they face and what they need in order to fix things and to get medication.

I strongly suggest that we do legislative reform, because this is wrecking lives. It's one thing to have HIV, but it's another thing to be criminally charged, convicted, sentenced and now have to be on a sex registry for the rest of my life. I cannot travel for longer than seven days without having to notify the police, or it's a breach, which happened to me.

There's one thing I'd like to mention to you guys now. As I stand before you, I'm now homeless. I received an eviction notice on Easter Monday and had 12 hours to vacate my home as there was a person paid to be in my home to make sure I left. Once again—

[The Chair, Liberal, Anthony Housefather]

Mr. Clarke, we're at 10 minutes now for this presentation, and we have to go vote.

I'm going to suspend the meeting right now. Those of us who can come back will come back afterward to hear the rest of the testimony from the witnesses. We'll be back as soon as we can after the vote.

[The Chair, Liberal, Anthony Housefather]

I appreciate the witnesses' patience. I'm really sorry to have interrupted like that. We don't usually do that, but votes are beyond our control.

I've started the meeting as quickly as possible, because you never know what may happen. I want to make sure we at least get through your verbal testimony.

We're going to hear the Community-Based Research Centre first, then the Parkdale Queen West Community Health Centre next. Then we'll come back to Ms. Nicholson, who said she had four and a half minutes and she did not get a chance to do her part of the presentation.

We're going to start with Mr. Biggin. The floor is yours, sir.

[Brook Biggin, Director, Program Development, Scale-Up, and Implementation, Community-Based Research Centre]

Good morning on behalf of the Community-Based Research Centre. Thank you for taking up this important issue and inviting us to participate. To provide context for my remarks, in addition to my role at the CBRC, I'm also steering committee co-chair of the Alberta sexually transmitted and blood-borne infections strategy, as well as the founder of the EMHC, a grassroots health organization run by and for sexual and gender minority communities in Edmonton, Alberta.

In preparation for today's meeting, I had the privilege of reviewing the remarks made by my esteemed colleagues and I heard what was shared earlier. While I can think a little highly of myself sometimes, I'm not sure I can recount the background and the core facts of the matter much better than they have already. I'll save us all a little bit of time and move past that to what I think we can do about it.

Here, too, my colleagues have provided the committee with fairly consistent direction, namely that while we recognize the federal Attorney General's directive on limiting HIV non-disclosure prosecutions as a very important step in the right direction, we must also recognize the limits of its reach and impact.

Therefore, as echoed by multiple witnesses before the committee and nearly 200 organizations across this country that have all endorsed the community consensus statement to end unjust HIV criminalization, the only way we believe we can effectively address this issue at a national level is through the reform of the Criminal Code. While there remain some question as to exactly what that might look like, there's a very strong consensus shared by all the witnesses before you today that it must include the removal of HIV non-disclosure cases from the realm of sexual assault law.

If we have a general consensus on what we can do about this matter, the question then shifts to why it's important that we must act. I will provide the committee with two reasons.

First, as you've heard, a consensus has emerged, endorsed by the U.S. CDC and our own Minister of Health, that when someone living with HIV has and maintains an undetectable viral load, they cannot transmit the virus sexually to others. In other words, undetectable equals untransmittable, U equals U.

While that broad consensus is relatively new, the understanding that treatment as a form of HIV prevention is effective is not. In fact, in 2014, with this understanding, the UN set new global HIV targets known as “90-90-90”. In essence, these targets state that by 2020, 90% of those who are living with HIV will be diagnosed, 90% of those diagnosed will be on treatment and 90% of those on treatment will have a suppressed or undetectable viral load. If these ambitious goals were met, effectively that would result in 73% of all people living with HIV having a suppressed viral load, setting the stage to end the epidemic as we know it by the year 2030.

However, in the most recent publicly available data I could find, the Public Health Agency of Canada estimated that by the year 2016, only 86% of those living with HIV in Canada were diagnosed and only 81% of those diagnosed were on treatment, with the one bright spot being that 91% of those on treatment had achieved an undetectable viral load. This resulted in only 63% of people living with HIV being virally suppressed, a full 10% off our 2020 target.

While disconcerting, it's not without a bright light. We see that people living with HIV in Canada, when linked to effective HIV treatment, do a pretty good job of taking their medication as prescribed and achieving an undetectable viral load, benefiting their health, the health of the people they care about and the health of the greater public. Where we're falling behind, then, is in the health system and the two targets that it is most responsible for: namely, ensuring that people have access to safe and accessible screening options; and ensuring that those who are diagnosed are linked to care and treatment options that work for them. Therefore, one would think that, knowing this, we as a country would take a unified, coordinated approach to dealing with the situation. Well, one would think.

In the previous session, William Flanagan shared a Canadian study, published in 2018, that demonstrated that the criminalization of non-disclosure decreased the likelihood of gay and bisexual men getting tested. I will remind the committee that this is a population that makes up about half of all new HIV infections each year. There goes your first “90”.

Other colleagues spoke to concerns HIV-positive patients had in sharing important information with health care providers about their treatment, out of fear that these intimate details could be used against them in criminal proceedings, inhibiting their ability to access treatment options that work for them. There goes your second “90”.

As the health system struggles to cross the finish line to end Canada’s HIV epidemic, why is the justice system cutting it off at the knees? You cannot, with the one hand, signal that U equals U, write #nohivstigma on one’s Twitter and hug the 90-90-90 targets, while with the other hand, uphold a scenario where the criminal law’s application is so disproportionate and extreme that you are adding HIV stigma at a faster rate than you can remove it. It is contradictory and it is self-defeating. No wonder people are confused.

Therefore, I ask this committee what is more just, committing to proven and widely endorsed public health strategies that can effectively end the HIV epidemic and decrease the vulnerability of all Canadians to HIV infection, or upholding a scenario where the law is applied so vaguely and unevenly that people living with HIV who are actually doing what they can to prevent transmission are unfairly and cruelly targeted as part of some crusade to which I can assign no benefit? I believe we do need to answer this question, because I do not believe it can be both.

In concluding, I’ll offer one final reason I believe we should act. In addition to my work in this field, I am a person who is living with HIV and have been for the past eight years. There has been a lot of talk before this committee of people living with HIV often being vulnerable or marginalized. Yes, HIV and the criminalization of non-disclosure do disproportionately impact those who are vulnerable, and it is our duty to ensure they are protected and can lead lives free of stigma, discrimination and unnecessary criminalization. However, more than vulnerability, the qualities that strike me most when thinking of people living with HIV are resilience, courage and innovation.

We are a people as diverse as one could imagine, united by a common thread that penetrated all of our lives and made us one, who in the face of what appeared to be certain death, mobilized and organized, participated in and led vital research, developed policy and pioneered best practice, all while many in power turned a blind eye to their needs. They did all of this and more so that we could live. And we do. Nearly 70,000 people in this country today will live and not die because of their sacrifice.

And as if that were not enough, the impacts of their efforts extend far beyond those living with HIV. Innovative models and crucial infrastructure pioneered and built by those living with HIV in this country have been successfully adopted and implemented by those working in the fields of sexual and gender minority rights, hepatitis C, the opioid response and more. Canadian society has been permanently and positively altered by the decades of contributions those living with HIV have made to this country.

With this in mind, as I sat to prepare these remarks and review the testimony from the previous session, hearing of the horrific experiences of those whose lives have been destroyed by the application of the law, I found myself to be gravely disappointed, angry even.

Of how little value are we, some of us sitting at this table, and our contributions to this country for such horrible things to knowingly continue to stand? Make no mistake. It is a deep disrespect to our collective legacy and contribution to this country to allow this vague, unevenly applied and unnecessarily cruel application of the law to continue unaddressed.

Fortunately for this committee, it does not need to be. Throughout this study, many of us, people living with HIV, community-based organizations, experts in law and public health, have offered our support in helping this committee to take something that's been wrong for so long and finally make it right.

For the benefit of those living with HIV in this country and everybody else, I do hope you will take us up on that offer.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We will now go to the Parkdale Queen West Community Health Centre.

Ms. Gans, the floor is yours.

[Maureen Gans, Senior Director, Client Services, Parkdale Queen West Community Health Centre]

Thank you.

Good morning. My name is Maureen Gans. I am the Senior Director of Client Services at the Parkdale Queen West Community Health Centre. For those who may not be familiar with CHCs, we provide primary care services to clients, including clinical, mental health and health promotion services and activities. Our CHC operates within a harm reduction framework. One could actually argue that we are a harm reduction agency that offers primary health services. We receive funding from the provincial AIDS bureau to conduct point-of-care anonymous HIV testing. If an individual tests positive, we offer a confirmatory blood draw and referral to a specialist for treatment. AIDS bureau funding also supports our considerable outreach efforts.

This past fiscal year, we tested 485 individuals. Of those, nine tested positive. All have disclosed their status, all have access to a primary care provider and all are on antiretrovirals. For those who test negative, they often come back for regular testing. That provides us with an opportunity to develop trusting relationships with individuals, to counsel about pre-exposure prophylaxis, and to provide support and assistance if a test is positive.

ln your invitation, you asked speakers to consider the best ways or practices to address non-disclosure of HIV status. This assumes that non-disclosure, rather than the criminalization of non-disclosure, is the problem. There does not appear to be strong evidence to support non-disclosure as being an issue, given that many of the cases prosecuted to date have involved individuals with a low or negligible risk of transmitting HIV and, in the majority of cases, there was no actual transmission. So why criminalize?

Criminalization is often seen as a response that aims to protect women and provide justice in instances where women have been infected or potentially exposed to HIV by their male sexual partners. However, this can be detrimental. A 2007 study done in AIDS service organizations involving about 40 women living with HIV as well as front-line service providers identifies a range of concerns. There are the added challenges that some women, particularly those in vulnerable relationships, may face when insisting on condom use by their partners, meaning that they then must either disclose or face the possibility of criminal liability. There are the fears that disclosure could trigger the loss of relationships, not only emotional but also financial consequences, or consequences for immigration status if the woman is being sponsored by her husband. There are the fears of abuse and physical violence, as well as the use of criminal law as a weapon, especially in situations where relationships break down and the woman may be subjected to unfounded accusations or threats of criminal charges as a means of seeking revenge or exerting control.

lt is important to note that for any individual with HIV, but particularly those already marginalized and overrepresented in the criminal justice system, disclosure will not necessarily protect from allegations, threats, police investigations or criminal charges. The threat of making a complaint to police is a powerful weapon in the hands of a disgruntled ex-lover or abusive partner. Even if a case does not proceed, the threat or investigation can be extremely damaging.

For racialized communities and black/African communities in particular, what has been experienced in the application of criminalization of non-disclosure is the creation of a pathologizing, criminalizing and profiling of black men as dangerous sexual predators. Cases involving criminal charges against persons living with HIV garner considerable media attention. The profiled face of many media stories has been the face of black men. While black men may not have been charged in greater numbers than white men, studies reveal that public perception exists that black heterosexual men are the perpetrators and are overrepresented among those charged. When the accused in a criminal case was an immigrant, this fact was frequently reported, thus reinforcing the belief that HIV is a problem of outsiders, imported from the Caribbean and Africa by people wanting to take advantage of the Canadian system. Thus, the black communities have seen non-disclosure charges as serving to reinforce anti-immigrant sentiment.

Long before any resolution at trial, as was noted earlier, police media advisories may reveal publicly an accused's identity, including photograph and HIV status, as well as the criminal allegations and details about their personal and sexual life. Criminalization therefore increases stigma. No other infectious disease is viewed with as much fear and repugnance as HIV.

Infectious diseases exist with the capacity to create public health crises, and yet we do not criminalize parents, for example, who do not disclose their refusal to vaccinate their children against measles. Other STIs can result in significant psychological and health impacts, and while there is a requirement for individuals to inform their sexual partner of any STI, only non-disclosure of HIV is met with criminal action.

With many infectious diseases we have treatment for symptoms, but no cure for the disease itself, so why do we choose to exclusively criminalize the non-disclosure of HIV? What is the evidence to suggest that criminalization decreases the likelihood of infected individuals transmitting the disease? I would argue, as many before have, that criminalization can have the effect of preventing individuals from seeking testing. If you don't know your status, you can't be charged with knowingly transmitting.

So let's talk about testing and treatment. The advantage of anonymous testing within a harm reduction agency, especially testing delivered by community testers and not health care professionals, is that we see a significant number of individuals from marginalized communities who will not necessarily go elsewhere for testing: newcomers, including a significant number of racialized individuals; men having sex with men who also use drugs; uninsured individuals; sex workers and folks identifying as trans or non-binary.

I would note that for people who use drugs, the testing world has not always been inclusive or supportive. Perhaps ironically, testers often spend time trying to counsel individuals to stop taking drugs rather than counselling them in safer use.

Individuals who do not engage in treatment once diagnosed with HIV and do not disclose their status are assumed to be deliberately deceptive or even malicious, however there are a number of reasons that people may not receive treatment. There is the lack of access to pre-exposure or post-exposure prophylaxis; even in larger communities, access can be limited to specialized clinics. Regular, run-of-the-mill family physicians may not be familiar with treatment protocols. There is also the lack of access to treatment once diagnosed, a mistrust of the health care system, the lack of awareness of the degree to which an individual does have some right to privacy and the lack of understanding of treatment efficacy.

What women, people who use drugs and racialized communities need is investment in the beneficial impact of HIV testing and other public health initiatives to modify behaviour that risks transmitting HIV. We need to make testing the centrepiece of our strategies and we need treatment to be available to anyone who needs it. We need investment in social and emotional supports for individuals living with HIV to eliminate the fear, isolation and discrimination that exists when people do disclose.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We're going to go to Ms. Nicholson next, but Mr. Cooper just asked for the floor for one second.

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

Was there another witness? Let her speak, yes.