Justice Committee on April 30th, 2019

[The Chair, Liberal, Anthony Housefather]

Ms. Nicholson, please go ahead.

[Valerie Nicholson, Member, Canadian Coalition to Reform HIV Criminalization]

Thank you.

I honour and acknowledge the ancestral traditional territories that I stand on today and all those across Turtle Island.

I am a storyteller, and I will present in my traditional ways.

Two of our many research papers are before you, bringing to light the living experience of HIV and criminalization. I did not ask to be HIV-positive, yet I stand before you, an indigenous warrior, advocating for all of us living with HIV. I have a dedication to the community to deliver with respect the voices from our research, which you are gifted. All names are pseudonyms to protect and keep safe the women who bravely shared their experiences and journeys living with HIV and the law.

I'm starting with a quote from Adele from B.C.:

How do we know what the judge is thinking? What is his viewpoint on HIV, what is his viewpoint even maybe on women? Like we don't know. They're supposed to be impartial. But everybody has morals and values. And we don't know...or what their education level even is on medical terms.

Right now I want you to think of a loved one—a daughter, a sister, an aunt or a niece. Through no fault of her own, like me, she has HIV. She is sexually assaulted. She is fighting for her life. That is all that's on her mind, survival. She just wants to come out of this alive. She's not thinking, “Oh, I had better tell him I have HIV”. She is now charged with HIV non-disclosure, she's convicted and she serves time. She is now a registered sexual offender. She is released and faces community stigma and discrimination. Her face is on telephone poles, fences and even in store windows. “Do not have sex with this HIV-positive woman; she is a registered sexual offender”. She can't be around children, yet she's a life giver. She loses her children. She loses her newborn baby.

These are true stores, and with permission, I carry their stories, their tears and their fears.

Julie from B.C. bravely shared her story:

I was raped by three [men]. They broke into my home and they held me prisoner for 24 hours and beat me and raped me. And if I had told him I was HIV positive, I would have been dead. I know it. So where does that fit in the picture?

How do we protect ourselves from this law? We've become fearful for our lives. Sex is no longer spontaneous or romantic. We are all sexual beings, yet we have to stop, as Lilian from B.C. role-played:

Excuse me, we can't have sex yet. I've got to call a lawyer, my doctor, the judge, the policeman, a lab tech to prove that I have disclosed and have an undetectable viral load. So how many people have to be in the bedroom?

Why do I bring this up? It's because it happened to me. I was dating someone who wanted to be intimate and I told him I had to tell him something. I explained that I had HIV. He didn't have a clue what HIV was. I slowed him down and really explained it to him. I took the time to educate him. I asked him to wear a condom. We dated for about a year, and during this relationship I found he was sometimes taking the condom off without my knowledge or permission. I was not worried about me transmitting HIV; I was worried what he might have. I go for blood work every three months. I know my status, but I don't know his. I have no proof. Does he lie to me?

A year and a half after the relationship ended he called and wanted a visit. As a friend, I said yes. He said, “You gave me HIV”. My heart sank. I went into an emotional tailspin. My mind knew this was impossible. I am an educator; I know the science; I am undetectable. Yet I couldn't help that confusion. After asking him a few questions I found he was diagnosed only that month and had only just seroconverted. I explained that to him. His response was, “Let's have sex”. I told him no. He told me that, if I did not have sex with him, he would go to the police and tell them I gave him HIV and never disclosed to him. He was using his new knowledge against me, saying he knew he didn't give it to me but the police didn't. Where is my proof that I disclosed? I was strong enough to say, “Go ahead; there is the door; call the police; get out.”

I lived in fear for the next six months, waiting for that knock on the door. I jumped every time the phone rang. I was always looking around and was paralyzed every time I saw a police car. I am strong and educated in HIV. Imagine those who are not; they could still be in a controlling or violent relationship.

This concern is not surprising, given that in a court of law it could come down to a he-said-she-said argument, with the person living with HIV having to find ways to prove that they disclosed their HIV-positive status to that sexual partner.

Catherine from Saskatchewan said, “And they go to the police and get them charged, just out to be spiteful and mean”.

Zainab from Ontario asked, “Do I need to make him sign a document and lock it up and have it witnessed by the neighbour?"

Trudy from Saskatchewan wanted to know, “How can you be prosecuted if it's not transmitted?”

Rita from Ontario asked, “What about the ones that are out there that are not even educated, can't read, and they're sick and they don't even know?”

Marisa from Saskatchewan asked, “Do I have to tell someone I had sex with ten years ago?” “What happens if the condom breaks...?”

We are all living in fear of this Canadian law, and we are not sexual offenders.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much to all the members of the panel.

Mr. Cooper, you wanted to speak very briefly?

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

I just want to put on the record, first of all, that I thank all the witnesses for their very helpful testimony. It's unfortunate we don't have time to ask questions.

I think it was said by one or more of the witnesses today, and if not today it's been said by others, that HIV has been uniquely singled out in aggravated sexual assault provisions of the Criminal Code. I just want to cite that in the Jones case from New Brunswick, an individual was charged pursuant to aggravated sexual assault for transmitting hepatitis C or alleged to have potentially transmitted hepatitis C, but was acquitted on the basis of the Cuerrier test.

As well in the 2012 Boone decision, an individual was charged under aggravated sexual assault for transmitting syphilis but those charges were not pursued. So there are other cases out there.

[The Chair, Liberal, Anthony Housefather]

Thank you.

I appreciate your clarification. I'll read from the Department of Justice so we all have the facts: “HIV is treated in an exceptional way by the criminal justice system compared to other transmissible diseases”.

I think that's what everybody is trying to say. For example, with regard to hepatitis B, hepatitis C and the human papillomavirus, “Prosecutions for non-disclosure of HIV appear disproportionate and discriminatory given their relatively high number in comparison to prosecutions for non-disclosure of other transmissible diseases”.

We'll just make sure we have all that on the record.

We are about to have another vote. Does anybody have a very short exchange? Otherwise if it's okay with the witnesses we will send you our questions by email and ask you to respond.

I think Mr. Virani or Mr. Boissonnault also wanted to have a brief comment.

[Arif Virani, Liberal, Parkdale—High Park, ON]

Thank you to all of you for your time and your courage and being so forthright. It's very helpful for the study that we're doing. In terms of the Parkdale Community Health Centre, I know you, Maureen, and the work you're doing.

Can you just talk to us a bit about that anonymity component? You said it helps empower people to come forward who might not otherwise come forward to get the testing. Can you then draw the link between those who test positive to getting the treatment they need because that's an important piece? That's where we're trying to close that loop. You said there was some success on your part. What accounts for the success for the people who are testing positive getting the treatment?

[Maureen Gans]

I think it's a couple of things. Because we operate within a harm reduction framework, there's no value judgment. People are positive or they're negative. They use drugs or they don't. They have sex for money or they don't. It just is.

When they come for testing, first of all, it starts with the outreach we do. We have a lot of harm reduction coordinators going into the community of Toronto offices, sometimes in very formal ways, and testing. But we also have people going out to people who live on the streets, under the bridges, in shelters.

They talk to people about testing. They encourage them to come in. They let them know that it's anonymous, not nominal but anonymous. Often people will come in and have a chat before. They won't even be tested the first time. They'll start to understand what we're about. They get comfortable with the idea. They eventually come back.

They're tested. Sometimes they've tested negative the first time. They come back on a regular basis. They eventually test positive. Sometimes at the first visit they test positive. The folks who do the testing are exceptionally good at counselling. You have to be certified to do this testing and part of it is because of the counselling component. Again, getting them into treatment for us is easy because we have a pathway to the physicians who offer treatments. As far as I know, we have never had anyone test positive who has said no to treatment.

The one exception might be somebody who is uninsured. I don't believe we've tested anyone uninsured for whom we couldn't find treatment. About 20% of our clients do not have OHIP. They are probably the most vulnerable in terms of treatment. A group of community health centres in downtown Toronto are looking at starting a shared clinic to treat those folks, to test and to treat folks who don't have health insurance.

[The Chair, Liberal, Anthony Housefather]

Thank you.

We can't get into a question period.

Again, on behalf of everyone, I want to thank all of the witnesses.

I want to apologize for the fact that you've been put through a voting procedure; that is not normal. We really appreciate it. We will send you, if that's okay, questions in writing to answer by email.

I thank you again for being here.

[Chad Clarke]

I would just like to say one last thing.

I want to take the word “stigma” and turn it into an acronym: Stop To Investigate Getting More Aligned.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

The meeting is adjourned.