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.