Justice Committee on May 7th, 2019

[Andrew Brett]

There are many gaps. Actually, for a high-income country with a strong health care system, Canada is surprisingly doing pretty poorly in terms of access to testing, treatment and care. Just to compare, Robin had mentioned earlier that we have committed ourselves to the global strategy of achieving 90% tested, 90% on treatment and 90% virally suppressed. In Canada, altogether, only 63% of people living with HIV are virally suppressed, and that's because of a lack of access to testing and a lack of access to treatment. If you compare, in the United Kingdom, 97% of people living with HIV who are on treatment are virally suppressed; in Canada, it's only 91%.

We have a public health care system, so that should not be a thing in Canada. Really, it comes down to access to treatment and care. For example, if you look at indigenous communities, in terms of access to testing on reserves and access to treatment on reserves, for some communities, it's not possible to see an HIV specialist. These are the types of barriers we're seeing across the country.

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you.

Another thing I came across in your publication was where you talked about other policy and resource issues that need to be addressed. There were a number of issues you identified. You talked about inadequate access to harm reduction services, insufficient spots in addiction services and inadequate sexual health education.

One thing in particular that caught my attention is where you talked about regressive prison reforms that are inhibiting our ability to deal with this challenge. Could you elaborate on what regressive prison forms would be?

[Andrew Brett]

It's hard to speak to that, because I don't have the full document in front of me. However, at the time that document was written, for example, supervised injection sites were not available in prisons. Prisons are where HIV and hepatitis C transmission is at some of its highest levels in Canada.

Now there is a process under way in terms of piloting a new project. I'm not sure if that's the example you're referencing. That would be one example where we could be doing better in terms of HIV and hepatitis C in prisons.

[Ali Ehsassi, Liberal, Willowdale, ON]

Given that it's such a challenge, do you have data for prisons?

[Sean Hosein]

We don't have recent data. We're waiting on the Correctional Service of Canada to provide that update.

[Ali Ehsassi, Liberal, Willowdale, ON]

Okay. Thank you for that.

Ms. Montgomery, you talked about how there have been some catalytic changes. In particular, you talked about the 2018 directive and how it's important that we accelerate efforts to get the provinces on board.

Do you think it's important for the federal government to ensure that this issue is addressed at the next federal-provincial-territorial meetings? Would that assist?

[Robin Montgomery]

Yes, I do believe that would assist as a starting point, and then I would hope that it would involve closer coordination and co-operation with public health officials and with civil society groups, and in particular, communities affected by HIV. Bringing everyone together would be the most positive, holistic and comprehensive way of addressing these reforms.

However, yes, I do think it's a step in the right direction.

[Ali Ehsassi, Liberal, Willowdale, ON]

Okay.

Mr. Salam, would you like to comment on that as well?

[Khaled Salam]

I agree with everything that Robin said. As I mentioned as well, obviously we welcome the new directive and we think it's a huge step forward in finally addressing this very important topic. However, for it to be fully effective, and effective with the priority populations, people living with HIV, in terms of epidemiological data and things like that, it would definitely have to trickle down to the provinces.

Ontario, where we all are, is one of the provinces with the highest rates of people living with HIV. I know Ontario had started doing some work around this particular piece, but unfortunately it seems to be on hold right now and hasn't followed through to the point where the federal directive has. Unless there is a standardized and consistent directive all across Canada, we won't see the full impact in terms of the eradication, hopefully, of the criminalization of HIV non-disclosure.

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you for that.

[Khaled Salam]

Is there a possibility for me to respond to your question about recklessness?

[The Chair, Liberal, Anthony Housefather]

It's up to Mr. Ehsassi.

[Ali Ehsassi, Liberal, Willowdale, ON]

Sure, absolutely.

[Khaled Salam]

Could you define what you mean by recklessness?

It's one of the things we haven't talked about. It seems like the onus of disclosure, of not being reckless, of doing everything by the book is always on the person living with HIV.

When two people are engaging, we all have responsibility for our own health. I only had eight minutes today to talk, so I didn't specifically zoom in on that. The onus needs to shift away from the person living with HIV to everybody. When we are engaging with someone else, we shouldn't be under the assumption that the criminal law is replacing the use of a condom, or whatever thoughts we might have that everybody is going to be disclosing to us. We have that responsibility in terms of how we handle our own health.

When you talk about reckless behaviour, I'm not sure what the definition of reckless behaviour is. I think that nobody in this room can say they have never engaged in any reckless behaviour when it comes to engaging with someone else. If you could clarify that, it would be easier to answer the question.

[The Chair, Liberal, Anthony Housefather]

We have exhausted Mr. Ehsassi's time. We're now into Mr. Garrison's time.

Again, I think the definition of recklessness exists in criminal law, so I would advise you to look at that.

We'll go to Mr. Garrison.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you very much, Mr. Chair.

I have to start where I always do, as a gay man who has spent most of my life being impatient with the government on HIV issues.

I want to thank Robin for bringing attention to the Oslo Declaration on HIV Criminalisation, which is dated February 2012.

We are in a state where we have a positive directive that's of limited application, and these hearings are, of course, very useful. However, they are occurring at a time in this Parliament when nothing of substance is likely to happen. Now, I'm trying to be the optimist again. That means we have time to look at doing this right.

My question is about some of the other aspects of the Criminal Code.

CATIE has given us the definitive scientific reasons for not criminalizing HIV non-disclosure, and I think that case has been made many times. There are other things in the Criminal Code that I think affect access to testing and treatment, and I wonder if there are other things we should be considering in the committee.

Maybe I'll start with Mr. Salam, since he was cut off the last time.

[Khaled Salam]

Sorry, what was your question? What are some things we should be considering in terms of how...?

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

As well as decriminalizing non-disclosure, there are some other aspects of the Criminal Code that affect access to testing and treatment.

[Khaled Salam]

I think this new directive is a big part of it.

One of the things I can share with you in terms of what we have noticed is probably the most powerful.

Very quickly, last year in Ottawa was our year of U=U. We did a lot of work with our community partners around “undetectable and untransmittable”. Since the messaging has been out there and there has been an official endorsement by the Canadian government, the shift we have seen in people living with HIV, and also people who are at risk and don't know about their status, has been massive and significant. We have done art projects around it, in terms of how this has impacted lives. We have talked to people at risk in terms of whether they are more comfortable getting tested for HIV now, or if they feel it has made a difference. The answer has been overwhelmingly, yes.

Now I know that if I get tested and I am positive and have the opportunity to go on treatment and be undetectable, I'm no longer a vector of transmission. There's a much smaller chance of being criminalized in terms of passing on the virus to someone else. It's made a massive, massive difference in that particular way.

In terms of other aspects of the Criminal Code, I am not a lawyer. I think folks from CATIE mentioned that the experts on that are HALCO, the HIV and AIDS Legal Clinic Ontario, for example, and the Canadian HIV/AIDS Legal Network. They would be much better suited to answer that particular question.

The one thing I can tell you is that sexual assault law needs to be completely removed from any cases that involve HIV non-disclosure.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

In your work, do you find that the criminalization of drug use and the criminalization of sex work inhibit access to treatment?

[Khaled Salam]

For sure. They're all interconnected, absolutely, 100%.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Maybe I can ask our friends in Toronto, either LEAF or CATIE, if they want to respond to the impact of the criminalization of sex work and the criminalization of drug use on access to treatment and testing.

[Andrew Brett]

Thank you for raising that issue.

I didn't want to veer too far away from what we are here to talk about, but CATIE absolutely similarly sees criminalization—our drug policy and in terms of sex work—as having an impact on access to HIV services across the continuum of care, from testing to treatment and care.

[Karen Segal]

I'll just add to it that we know that women working in that industry, whether you call it work or something else, are particularly vulnerable to violence and may be in a particularly difficult place in regard to disclosing their HIV status. There are cases of women who have experienced significant violence following disclosure of HIV status, including murder.

Again, when it comes to the issue of requiring condom use, we know that women who are exchanging sex for money don't always have control over the condom use of their partner or may be paid not to use a condom. That is a group of women that is particularly vulnerable to over-criminalization under the standard and is particularly vulnerable to the kinds of violence that might flow from HIV non-disclosure or the requirement to use that protection. That may make it impossible to meet the legal standards required of them.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you.