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.