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.