Justice Committee on May 7th, 2019

[Dr. Kristopher Wells]

I think the federal directive, as others have said, still needs some work. It needs some areas of particular clarity. I think that's where you want to particularly involve the legal experts, the Canadian HIV/AIDS Legal Network, who have some specific recommendations. I think a big part, as we've heard, is around the use of sexual assault as being inappropriate as one specific example.

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

I would like to continue along that line in terms of sexual assault and the use of it. You made reference to changes you'd like to see in the Criminal Code. Perhaps you could elaborate. I presume it's consistent with what you just stated.

[Dr. Kristopher Wells]

Yes...and looking again, consulting with those communities impacted and consulting with the legal experts who particularly work in the area of HIV non-disclosure. We want to look at other particular tools. I'm not going to make those suggestions myself as that isn't my area of expertise. I'm not trained in the bill field.

I certainly think we need to move further than the legal field. As I mentioned, schools and education become a big component. The fact is that right now young people are not even getting good accurate science-based education to know how to protect themselves and to deal with issues of consent. We're talking about consent as being the very core of much of our discussions.

[The Chair, Liberal, Anthony Housefather]

Mr. Barrett.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

My question is to Dr. Tyndall.

In your remarks, you talked about the seriousness of the risk of transmission. We continue to see a pretty steady rate of new infections and an increase in infections. Would you say that it is, in fact, a public health risk when individuals infected with HIV do not disclose to their partners that they're infected.

[Dr. Mark Tyndall]

HIV is transmitted when people expose their partners to the virus. We get at that by educating people. We want to encourage people to get tested and to be up front with their partners.

I've probably told hundreds of people that their first HIV test is positive. Part of our conversation is how they can prevent exposure to other people. People are quite open to that kind of education 99% of the time. It's not an easy conversation that they have to have. With the right support, almost everybody does it.

My point is that the threat of criminalization does not have any role except to discourage people from going that route and discussing it with their partners. The steady number of people getting infected in Canada mostly affects gay men populations. Almost all of those cases are people who have not been tested and don't know their status, or have decided they want to keep it quite secret and have decided not to be on antiretroviral therapies. Those kinds of decisions are somewhat influenced by the risk they think they face when they get tested and when they disclose stuff.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

With the changes we'll see in terms of prosecutions in light of the federal directive, and if there was harmonization by the provinces, do you think that would change that steady rate of infection in Canada?

[Dr. Mark Tyndall]

I think it would have an impact. Again, it's very difficult to empirically measure people's decisions around this and how they internalize and understand the criminal risk they face. I think the undetectable equals no transmission is an extremely important message to get out to people, but the fact is also that, in a criminal case, people could still be trying to prove that people weren't taking their medications during that sexual exposure.

People need to understand that although we've been fairly successful in getting people on consistent treatment, from day to day and month to month, probably at least 20% of people are not undetectable at one particular time. We're asking people to take daily medications for their whole lives, and we know this is difficult for a lot of people to maintain. If it got down to a criminal case, and this has been my experience, trying to prove whether people were undetectable during that exposure when their last viral load test was months before is a technicality that's very difficult to prove at that time.

It's a great message to have and that would really help, but I think in a court situation people could still be in trouble because they'd be accused of not taking their medications within two weeks or so of the exposure.

The other thing it doesn't mention is condoms, and if people are using condoms, we know that is essentially a foolproof way to prevent HIV transmission, and I think the Criminal Code should embrace that. If you use condoms, there's no foul. Then oral sex is still part of that, and again, there's no evidence that oral sex is a way to transmit HIV. Those other two things that people can do to prevent transmission should be part of this directive.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We're now going to Mr. Boissonnault.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thanks, Mr. Chair.

Thanks to all the panellists.

It's been a while, I think, since we travelled on the human trafficking study, that we've had a panel entirely of westerners, so thank you all for being here. Two from Edmonton, one from B.C., it's fantastic.

Dr. Wells, I was at the apology as well and will remember that for the rest of my life.

I have six minutes, minus these 15 seconds I just took for the preamble, so I'm going to ask some short snappers of each of you, basically yes or no questions to start.

Shelley, is it true that criminalizing HIV in Canada has increased the stigma of HIV status, yes or no?

[Shelley Williams]

I believe so, yes.

[Dr. Kristopher Wells]

Yes.

[Dr. Mark Tyndall]

Yes.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Is it true there are people in Canada who are not seeking to know their status, that people are not getting tested because of a fear that knowing they're positive might put them at criminal risk later, yes or no?

[Shelley Williams]

Yes.

[Dr. Kristopher Wells]

Yes.

[Dr. Mark Tyndall]

Yes.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Is it true that if we were to change the Criminal Code to remove those provisions, we could see more people feeling comfortable knowing their HIV status?

[Shelley Williams]

Yes.

[Dr. Kristopher Wells]

Yes.

[Dr. Mark Tyndall]

Yes.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Is it true that if more people knew their status, we would be able to provide more people with HIV with the treatment they need to reduce the public health risk?

[Dr. Mark Tyndall]

Yes.

[Shelley Williams]

Yes.

[Dr. Kristopher Wells]

Yes.