Justice Committee on May 7th, 2019

[The Chair, Liberal, Anthony Housefather]

Good morning, ladies and gentlemen, and welcome to the Standing Committee on Justice and Human Rights as we resume our study on the criminalization of non-disclosure of HIV status.

We're joined today by four groups of distinguished witnesses.

We have, first, with us in the room today, from the AIDS Committee of Ottawa, Mr. Khaled Salam, the Executive Director. From the Interagency Coalition on AIDS and Development, we have Ms. Robin Montgomery, the Executive Director.

Joining us from Toronto we have CATIE, represented by Mr. Andrew Brett, who is the Director of Communications, and Mr. Sean Hosein, who is the Science and Medicine Editor. From the Women's Legal Education and Action Fund, we're once again joined by Ms. Karen Segal, who is the Staff Counsel.

We seem to be having some technical difficulties from the folks in Toronto. Let's try it one more time.

We can now hear you perfectly. Thank you.

Folks, because we don't ever want to lose people on video conference, in case of technical difficulties, we're going to start with both of the groups in Toronto.

You each have eight minutes. CATIE, you're first with eight minutes, and then we'll go to the Women's Legal Education and Action Fund.

Andrew and Sean, please go ahead.

[Andrew Brett, Director, Communications, CATIE]

Thank you.

Good morning and thank you to the chair and members of the committee for inviting us to share our expertise on HIV transmission and public health. We hope that our comments this morning will help your deliberations on this very important issue.

My name is Andrew Brett. I am the Director of Communications at CATIE. Here with me today is Sean Hosein, who co-founded the organization in 1990 and remains to this day our science and medicine editor.

We are Canada's voice for HIV and hepatitis C information. We are funded by the Public Health Agency of Canada to act as the pan-Canadian knowledge broker for people and organizations working in HIV and hepatitis C prevention, testing, treatment and care. We pride ourselves on being a reliable source of accurate and unbiased information about HIV and hepatitis C.

We're appearing here today thanks to your invitation, but also because we believe this is an area of Canadian criminal law that is unfortunately suffering from a poor and outdated understanding of HIV science. Our comments today will be limited to our area of expertise, which is the science of HIV prevention and treatment.

For other matters, such as the most appropriate legal mechanism to curb the inappropriate use of criminal law in matters of HIV non-disclosure, we would defer to others with more expertise in the criminal law, such as the Canadian HIV/AIDS Legal Network.

[Sean Hosein, Science and Medicine Editor, CATIE]

Good morning, and thank you for asking us to appear before the committee today.

My name is Sean Hosein, and I am the Science and Medicine Editor at CATIE. For more than 30 years, I have reviewed research on HIV prevention and treatment and disseminated this news in plain language to people living with HIV, their health care providers and the broad range of service providers working in Canada's HIV/AIDS response.

One of the most exciting developments in HIV research that I have witnessed in my career has been the evolution of our knowledge on the impact of HIV viral load on the possibility of transmission. Between 2011 and 2018, four large clinical trials have now confirmed that people living with HIV who have a suppressed viral load do not transmit the virus to their sexual partners.

When people living with HIV take their medication as prescribed, it can reduce the amount of virus in their body to levels so low that they cannot be detected by standard blood tests. We call this “undetectable viral load” or “viral suppression”. According to the latest estimates from the Public Health Agency of Canada, 91% of HIV-positive Canadians on treatment have achieved viral suppression, and this proportion could be higher with greater access to treatment and care. In the United Kingdom, the equivalent proportion is 97%.

In the four large clinical trials I previously mentioned, out of more than 100,000 instances of sex without a condom with an HIV-positive partner, there were zero confirmed cases of HIV transmission when the HIV-positive partner had a suppressed viral load. For the purpose of these studies, this meant that they had less than 200 copies of HIV per millilitre of blood.

As published in an editorial in the eminent medical journal The Lancet in 2017, the evidence to support the effectiveness of viral suppression in blocking transmission is clear. Where the evidence is less clear is in the likelihood of transmission in the absence of viral suppression. Quantifying this is difficult due to the challenges of conducting a robust study that tracks the number of potential HIV exposures within a couple over time, what type of sex they had, whether they used prevention tools and any biological factors.

Despite these challenges, attempts have been made to calculate the average HIV transmission possibility. There is no possibility of an HIV-negative person contracting HIV when receiving oral sex from an HIV-positive person with or without a viral suppression. There is a theoretical possibility of HIV transmission from performing oral sex on an HIV-positive man when ejaculate is present, although there is limited evidence to confirm this. If such transmission were possible, it would be a negligible risk, at most.

When a condom is used consistently and correctly, HIV transmission is not possible with or without viral suppression. Laboratory tests have confirmed that condoms are impermeable to HIV, including condoms made of latex, polyurethane, nitrile or polyisoprene. These estimates are synthesized in the expert consensus statement on the science of HIV in the context of criminal law published in 2018 by 20 of the world's leading scientists.

[Andrew Brett]

Many of the elements of the federal directive regarding prosecutions of HIV non-disclosure cases, which was issued in December 2018, were welcome news for those of us who appreciate evidence-based policy. For example, the directive to not prosecute where the person living with HIV has maintained a suppressed viral load is consistent with the science of HIV transmission. However, it should be noted that criminal prosecutions of HIV non-disclosure in general, regardless of viral load, contribute to a climate of fear and stigma for people living with HIV, which inhibits access to HIV services, we know from research. Also, ironically, it actually discourages people from disclosing their HIV status for fear of legal reprisals.

As a practical and recent example, I am currently working on an HIV educational video with support from the Public Health Agency of Canada, and in this video we are interviewing people living with HIV on camera to dispel myths about HIV and how the virus is transmitted. One of the participants in this project confided to me that he had some concern that disclosing his HIV status on camera could lead to repercussions, and not just in terms of stigma or discrimination but because a sexual partner could make a criminal complaint upon learning he is HIV positive, even though he has an undetectable viral load and there is no possibility of HIV transmission.

There is a very well-founded concern among people living with HIV that they could face a very serious criminal charge by people who misuse sexual assault law, and as a result, they conceal their HIV status to protect themselves. If our goal here is to encourage people to disclose their HIV status to their sexual partners, using sexual assault law could actually be counterproductive.

[Sean Hosein]

It should also be noted that HIV is most likely to be transmitted when a person doesn't even know they have the virus, especially if this person has been recently infected. A new analysis by the U.S. Centers for Disease Control found that a recently infected person was 92% more likely to transmit the virus than someone who had not been infected recently. This is consistent with our knowledge that HIV is most transmissible in the acute phase of infection, when the virus is circulating in the body at its highest levels. The same CDC analysis also found that people who know their status are less likely to transmit the virus, due to behavioural changes that occur once a person is diagnosed.

In summary, people who know they are HIV positive are the least likely to transmit the virus and HIV-positive people with suppressed viral loads cannot transmit the virus.

[Andrew Brett]

With this knowledge at our disposal, it is clear that targeting people living with HIV with criminal sanctions should not be our approach. Our efforts to curb the spread of HIV should instead be focused on increasing awareness—increasing access to testing and increasing access to treatment and care.

We hope this information has been useful for you and we welcome your questions.

[The Chair, Liberal, Anthony Housefather]

Thank you very much. That was very helpful.

Now I will go to Women's LEAF.

Ms. Segal, the floor is yours.

[Karen Segal, Staff Counsel, Women's Legal Education and Action Fund]

Thank you.

My name is Karen Segal. I'm from the Women's Legal Education and Action Fund, also known as LEAF. I'm joining you from LEAF's national office in Toronto. Thank you very much for having me back and for inviting LEAF to speak to this committee on this issue.

LEAF is a national non-profit that advances women's equality rights. Over the past 35 years, LEAF has played a key role in advancing women's rights in law through litigation, law reform and public legal education. Sexual assault law and the development of sexual assault law through a feminist lens is a fundamental element of LEAF's work due to its close proximity to women's equality rights.

As this study considers sexual assault law and questions around sex and consent, it is a study that is particularly relevant to LEAF's mandate. I am aware this committee has heard extensively from advocates in the HIV/AIDS community who seek to end the harsh criminalization of individuals living with HIV. LEAF supports this important objective, but to further assist this committee, I will focus my submissions here on the impact of this area of law on women's equality rights.

As an organization that advocates for the equality rights of women and girls. There are three key areas that we are interested in regarding the law of HIV non-disclosure. First, HIV non-disclosure prosecutions have led to an increase in the number of women as accused persons being convicted of aggravated sexual assault. That has had a particular impact on women from marginalized communities. Almost 80% of women living with HIV are indigenous or racialized women, a group that already faces serious over-criminalization in Canada. That over-criminalization is a product of systemic race and sex discrimination that will be exacerbated through the harsh criminalization of HIV.

Further, HIV non-disclosure prosecutions can make women more vulnerable to intimate partner violence. For example, in the case of Regina v. D.C., one of the seminal Supreme Court of Canada cases in this area, the complainant was an abusive partner who brought his allegations of HIV non-disclosure against his former spouse after she brought forward allegations of domestic violence against him. He waited until that point despite having known about her HIV status for many years, which is an example of how HIV prosecutions can be used by abusive men as a tool of their abuse.

On the other hand, despite the fact that most cases of HIV transmission occur among men who have sex with men, the majority of HIV non-disclosure prosecutions occur in the context of heterosexual relationships with women bringing complaints of sexual assault against men. The safety and bodily autonomy of this group of women as complainants also animates LEAF's proposed response to HIV non-disclosure.

Finally, the development of the law relating to HIV non-disclosure has altered the law of sexual assault to the detriment of women's equality rights. LEAF has a particular interest in the law of sexual assault because sexual assault is a gendered crime that disproportionately impacts women. Because non-disclosure of HIV is dealt with under the law of sexual assault, advocates in this area have sought to limit the scope of behaviour prohibited under sexual assault laws due to the concern that expansion of the kind of behaviour considered to be a sexual offence would further criminalize people with HIV.

Unfortunately, the changes that many advocates have advocated for apply to all sexual assault trials, not just those involving HIV non-disclosure. Success in advocacy to limit the application of sexual assault law risks decreasing protections provided for women against sexual violence. In this way, the limitation of the law to advance equality of people living with HIV has actually undermined important protections for women's equality rights.

In response to these complex concerns, LEAF engaged in a multi-year consultation with feminist experts nationwide, including scholars and legal practitioners, which resulted in the law reform position that we have provided to you.

I will give you an overview of that position now.

First, it is imperative that HIV non-disclosure be removed from the law of sexual assault. Sexual assault affects one in three Canadian women and in 2014 less than 1% of sexual assaults led to conviction. Impunity for sexual violence is a human rights crisis in Canada and further limiting the protection of the law in this area will hurt women. On the other hand, further criminalization of people with HIV will hurt equality rights in Canada.

The proper response is to remove HIV non-disclosure from sexual assault law altogether. LEAF proposes that HIV non-disclosure be prosecuted under criminal provisions that do not deal with sexual assault and only when the accused was reckless and transmission actually occurred.

This serves three purposes. First, it limits the punitive over-criminalization of people living with HIV.

The requirement of transmission would act essentially as a proxy for the factors identified in the recent federal prosecutorial directive that outlines when HIV non-disclosure should be prosecuted, specifically that it should be prosecuted only when the individual either did not use a condom or properly use ARVs. As I've heard from my friends on this panel, studies indicate that those methods are just about 100% effective at preventing transmission, so transmission would act as a proxy for someone failing to take one of those two steps.

While the recklessness requirement leaves open the possibility that, in some circumstances, transmission would not be criminal, depending on the steps taken by the accused to prevent transmission, this would reduce the over-criminalization of the most marginalized women in Canada.

The second reason that we propose this is that leaving some room for the criminal law in cases of reckless transmission of HIV provides some protection for women who have contracted HIV from partners who acted recklessly and took no care to prevent transmission of the virus.

Finally, this proposal would protect the robust and broad scale of consent that is fundamental to women's equality rights and the right to bodily autonomy. It would prevent courts from having to contort the law of sexual assault to fit the context of HIV non-disclosure, which is a very different set of circumstances from those usually seen in sexual assault prosecutions.

As I've outlined in our written submissions to you, we urge this committee to take this opportunity to clearly signal that the principles outlined in seminal sexual assault decisions, such as R. v. Ewanchuk, which give women the right to decide who touches their body and how, and clearly indicate that voluntary consent is required for any sexual touching, remain the foundational principles of sexual assault law and continue to bind future courts.

Finally, we would propose that prosecutorial directions for HIV non-disclosure are necessary to ensure that marginalized women are protected from violence. We've submitted to you in our submission that the reckless transmission of HIV non-disclosure should be prosecuted under non-sexual assault provisions of the Criminal Code. We would further submit that the transmission should not be an offence when the accused feared violence would result from disclosing their HIV status or feared violence if they insisted on condom use.

As we know, the use of a condom is a gendered requirement and women don't always have as much control over condom use as their partner if they engage in sex under duress, were coerced into sex or the sex occurred without the consent of the accused.

In short, to best protect the equality rights of people living with HIV and to protect women from sexual violence, we propose that HIV non-disclosure be removed from sexual assault law and that the reckless transmission of HIV should be prosecuted under criminal provisions that do not deal with sexual assault, with clear prosecutorial guidelines that ensure that women are not criminalized for the violence committed against them.

Thank you very much for hearing from LEAF.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Now we will go to the AIDS Committee of Ottawa, Mr. Salam.

[Khaled Salam, Executive Director, AIDS Committee of Ottawa]

Good morning.

My name is Khaled Salam and I'm the Executive Director of the AIDS Committee of Ottawa. ACO is a social justice organization that provides education, support, outreach and advocacy to people living with, affected by and at risk of HIV/AIDS in Ottawa. ACO has served the Ottawa community for almost 35 years.

Criminalization of HIV non-disclosure has stood as an impediment to public health and HIV/AIDS education and prevention. It has added even more fuel to stigma, misinformation and fear. HIV is a health and medical issue, not a legal or criminal issue. HIV should be addressed from a scientific and evidence-based lens, particularly when it comes to risk factors and methods of transmission, and not from a place of prejudice, judgment and HIV phobia.

People living with HIV need health and social supports instead of the threat of criminal accusations and imprisonment hanging over their heads. Criminalization of HIV non-disclosure undermines the work of organizations like ACO, and it fosters a climate of fear and recrimination. We understand that the topic of criminalization of HIV non-disclosure generates different views, opinions, thoughts, feelings and experiences. Having these conversations—even if they are difficult at times—is crucial in effectively addressing the impact of criminalization of HIV non-disclosure in our communities.

Disclosure of one’s HIV status is a complex social issue. Our communities and society as a whole don’t always allow for safe and supportive environments for voluntary disclosure of status. Often when people living with HIV disclose their status, they're shunned and ostracized, sometimes by those closest to them. People may fear rejection, violence or discrimination, or they may worry that their status might not be kept confidential by the person they're disclosing to.

There are many communities where the topic of sexuality and HIV is taboo. Racism, colonialism, homophobia, drug phobia, gender norms, economic conditions, and cultural and language barriers are all factors that can also affect a person’s ability to disclose their status.

In the overwhelming majority of cases, the very broad application of the criminal law to HIV exposure—which often includes draconian sentences—does far more harm than good. Rather than using criminal law to respond to cases of HIV exposure or transmission, our society as a whole should move towards reforming laws and policies that stand in the way of evidence-informed HIV prevention, support and treatment efforts. We need to collectively work towards promoting a social and legal environment that is supportive of and safe for voluntary disclosure.

Last year on World AIDS day, December 1, at our annual commemorative event on Parliament Hill, the federal Minister of Health, the Honourable Ginette Petitpas Taylor, on behalf of the Canadian government, officially endorsed the “U=U” strategy—undetectable equals untransmittable—and signed the consensus statement. Words cannot express our sentiments, nor can they truly convey our feelings surrounding that momentous occasion when we as an organization, a city, a country and most importantly the HIV community made history together. Our collective hearts were filled with pride and tears were trickling down our cheeks. At the same time, our hands were either up in the air or coming together in thunderous claps as Canada became the first country in the world to endorse U=U. This meant our government was proudly declaring that a person living with HIV on treatment with a suppressed viral load cannot sexually transmit the virus to another person. This is a shining example of government and community working together to eradicate HIV/AIDS stigma.

The same day as that endorsement, the federal government announced a new directive to help limit unjust prosecutions against people living with HIV in Canada. This new directive comes after years of advocacy by legal networks, many community partners and people living with HIV across Canada. At ACO, we see this as a welcome and positive step forward in the ongoing effort to end the criminalization of HIV. We recognize that it is more in line with the latest scientific evidence regarding HIV and its transmission.

Last year, the Canadian Coalition to Reform HIV Criminalization—the CCRHC—released its community consensus statement. We immediately signed on to it, along with 160 other organizations across Canada.

This statement called upon the federal government to act on its stated concerns about the over-criminalization of HIV and the findings of a Justice Canada report released back in 2017.

As a local organization advocating for the HIV community in Ottawa, we were pleased that the government listened to our collective voice by issuing this new directive. It is an important step in the right direction. The fact that the new directive states that there should not be prosecution where the person living with HIV has maintained a suppressed viral load is a big step forward and in line with the government's aforementioned endorsement of undetectable equals untransmittable.

Having said that, it is important to recognize that historically, Canada has had one of the highest rates of HIV criminalization in the world, with more than 200 cases documented to date. Even though this new directive is a significant step forward in reducing the stigmatization of Canadians living with HIV, there is a lot more work to be done. We call upon the federal government to reform Canada's Criminal Code to ensure that HIV-related prosecutions are removed from sexual assault law and are applied only to intentional transmission.

In addition, the federal directive only applies to Nunavut, Northwest Territories and Yukon, as they all fall under federal jurisdiction. The majority of people living with HIV reside in the other 10 provinces. We continue to call on the provincial governments to adopt the federal directive and update their prosecutorial guidance on HIV-related prosecutions. We would like to see our federal government work closely with its provincial counterparts to ensure the directive is standardized and consistent all across our country.

In closing, we would like to congratulate the federal government for taking this action, and we urge Ontario and the other provinces to also move forward.

Thank you for giving me the time to speak today.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We will now go to the Interagency Coalition on AIDS and Development.

Ms. Montgomery, the floor is yours.

[Robin Montgomery, Executive Director, Interagency Coalition on AIDS and Development]

Thank you, Chair and members of this committee, for the opportunity to appear before you today. The issue of the criminalization of HIV non-disclosure is a serious one, and I'm very pleased that the Standing Committee on Justice and Human Rights is studying the matter.

My name is Robin Montgomery. I'm the Executive Director of the Interagency Coalition on AIDS and Development. I do not have a law degree, nor do I have a medical degree. However, I am a human rights defender and a public health advocate on issues of HIV here at home in Canada and within the global community. It's from this perspective that I will ground my comments today.

In our work at the Interagency Coalition on AIDS and Development, a Canadian coalition that bridges domestic and global responses and connects the worlds of HIV and international development, we continue to observe the negative impact of HIV criminalization on individuals, on communities and on countries and regions in Canada and around the world. We see the negative impact on women, on LGBT2QI communities and on black and indigenous communities, to name but a few.

We also see its detrimental implications for our collective progress in ending HIV as a global public health threat as part of our 2030 agenda for sustainable development, an international commitment to which Canada has been an enthusiastic signatory.

We know that HIV does not discriminate. It's rooted in complex social and structural issues. It's largely both a cause and a consequence of poverty, where isolation, marginalization, vulnerability, stigma and discrimination are its closest friends.

One key global strategy in meeting our 2030 targets and goals, leaving no one behind, is called the 90-90-90 fast-track strategy, laid out by UNAIDS and endorsed by Canada. The tenets of this strategy are grounded in targets for HIV prevention and treatment, with the understanding that if we are able to reach the goal of having 90% of people living with HIV knowing their status, 90% of people who know their status on antiretroviral therapy and 90% of people on antiretroviral therapy achieving viral suppression, then we will effectively see success in getting to zero new infections, zero AIDS-related deaths and zero stigma and discrimination.

Singling out HIV with specific laws or prosecutions runs directly counter to this UN-led global public health strategy. There is no body of evidence that criminalization of HIV non-disclosure exposure or transmission has a public health benefit. There is, however, as we've heard today, a growing body of research that illustrates how such prosecutions undermine public health interventions and messaging by further stigmatizing people living with and at risk of HIV, placing them at risk of violence and driving them further away from learning their status and accessing essential and life-saving services and treatment. As we know, HIV-related stigma is the greatest barrier to testing, treatment uptake and timely access to prevention, treatment, care and support services.

As we've heard today, HIV epidemics are driven by undiagnosed HIV infections, not by people who know their HIV-positive status. It is now well established that the possibility of HIV transmission from an HIV-positive person with an undetectable viral load as the result of early and effective treatment is zero. HIV-positive people with a suppressed viral load cannot transmit the virus. I refer you to the “Expert consensus statement on the science of HIV in the context of criminal law”, which is a statement that was circulated in July 2018 from 20 of the world's leading HIV scientists. I have copies here for you today, but only in English. I will follow up with a hard copy following today's session.

The 2012 Oslo Declaration on HIV Criminalisation, which is the second document that I have shared with you today, points to the growing body of evidence that illustrates how criminalization of HIV non-disclosure is actually doing more harm than good in terms of its impact on public health and human rights. Due to the high number of undiagnosed infections, relying on disclosure to protect oneself and prosecuting people for non-disclosure can and does lead to a false sense of security.

As we've heard today from our esteemed colleagues at CATIE, if our goal is to encourage people to disclose their HIV status to partners and to access services early, using the blunt tool of sexual assault law to achieve this is counterproductive. Rather, an evidence-informed and rights-based alternative includes measures that create an environment that enables people to seek and realize the benefits of testing, support and timely treatment, and to safely disclose their HIV status.

While there may be a limited role for criminal law in rare cases in which people transmit HIV knowingly and with malicious intent, we echo experts, advocates and leaders at the Global Commission on HIV and the Law, UNAIDS, the UN special rapporteur on the right to health, the World Health Organization and the Canadian Coalition to Reform HIV Criminalization. We prefer to see people who are living with and at risk of HIV supported and empowered from the moment of diagnosis, so that even these rare cases can be prevented. This requires a non-punitive, non-criminal HIV prevention approach that is centred within communities where expertise about and understanding of issues of HIV are best found.

Where to go from here? We are very encouraged by the 2018 federal prosecutorial directive as a firm step forward, but more needs to be done. The acceleration of work with provincial attorneys general to endorse and follow the federal government directive is absolutely paramount. Reforms to the Criminal Code are also warranted in order to further limit the currently broad scope of HIV criminalization in Canada.

These reforms should achieve two things: first, put an end to the use of sexual assault law as the means of criminalizing HIV non-disclosure; and second, limit any use of the Criminal Code to cases of intentional and actual transmission of HIV to another person.

To help move forward this important work that has already been undertaken with the federal directive, broad multi-stakeholder consultations and cross-sector co-operation will be essential to ensure that legal reforms are steeped in the most up-to-date, leading scientific and medical evidence, and that all concerned stakeholders are meaningfully engaged. These include experts in human rights and law; public health, medical and scientific experts; experts from civil society and the community; and first and foremost, experts with lived first-hand experience—people living with HIV.

Canada has demonstrated tremendous global leadership and political will in responding to issues of HIV, human rights, gender diversity and gender equality. It is unfortunate, as well as very inconsistent and very confusing, to also have the distinction of being one of the most aggressive countries in the world in terms of the criminalization of HIV non-disclosure. It is fourth only to Russia, the United States and Belarus.

Canada's leadership here is absolutely critical. It will send an important signal to other countries that are either in the process of legal reform or that have yet to begin. Removing HIV non-disclosure prosecutions entirely from the reach of sexual assault laws will, first, be catalytic in Canada's ability to meet its own 90-90-90 targets. Second, it will be catalytic in its commitment to the sustainable development goal to leave no one behind. Third, it will align with Canada's commitment to human rights and evidence-informed public health approaches.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We will now move to questions.

Mr. Cooper.

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

Thank you, Mr. Chair. I'll address my first questions to the representatives from CATIE.

You spoke about the very low risk of transmission where there is a low viral load, where a condom is properly used, and in the case of oral sex. Let me just say that I support the federal directive that was issued, inasmuch as I believe that it strikes a balance in terms of recognizing individual autonomy without unduly over-criminalizing what, at the end of the day and on the whole, is not harmful and blameworthy behaviour.

What is the risk of transmission in the case of not having a low-viral load and not using a condom?

[Sean Hosein]

That's a very good question. Those studies are hard to quantify. This relies on people reporting what they may or may not have done in a certain situation. They can't be observed in a proper experiment, so it's uncertain.

[Andrew Brett]

What we can say is that for sex with a condom with or without viral suppression, there is no possibility of this if the condom is used consistently and correctly. In the context of oral sex as well, there are no confirmed cases of HIV transmission. There's very limited evidence, but there's a theoretical possibility of this if a person performs oral sex on an HIV-positive person and ejaculate is present. However, there are no confirmed cases in a scientific study.

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

Now, you would agree that while HIV is no longer a fatal condition, it remains clearly incurable and has serious implications on one's health. You would agree with that.

[Sean Hosein]

Yes, but to be clear, a person who's diagnosed today and who gets on treatment right away has a near-normal life expectancy. Canadian studies have shown this. So yes, it is no longer a fatal illness, but people have a near-normal life expectancy with treatment.

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

Even with antiretrovirals, for some individuals they don't always work well. I saw some evidence indicating that individuals who use antiretrovirals experience higher rates of certain diseases, including cardiovascular disease, diabetes and so on. Would you care to comment on that?

[Sean Hosein]

HIV treatment has evolved over time. At first it was not very effective. The latest treatments are fairly simple. They can be taken once daily. More importantly, they have very few side effects. What we're seeing now in the studies that look at people who are aging is that HIV-positive people get the same illnesses as others. In some cases, as you point out, the cardiovascular risk has been associated with the fact that in HIV-positive people, rates of smoking are double or triple what they are in HIV-negative people.

It's not the medicines. It's other factors.

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

Thanks for that.

Ms. Montgomery, you stated that it is your position that in terms of the realm of criminal law, there should be Criminal Code penalties for individuals who intentionally transmit. What about in the case or recklessness? Why should that not be covered by the criminal realm? Again, where the risk is well above negligible.... I certainly agree that where the risk of transmission is negligible, whether it's intentional or not, that should not be covered by criminal law, but where the risk is above negligible and the conduct wasn't intent but recklessness, is there not room for criminal law in that regard? If not, why not?

[Robin Montgomery]

Thank you very much for that very important question. I will look to my colleagues at CATIE, the ACO and LEAP to jump in here as well.

I would answer that by first asking how you define “reckless” behaviour and at whom that is pointed. Power relations play an important role in all sexual negotiations. When we're looking at the impact of HIV transmission and prosecutions against women in particular, and marginalized communities, more importantly, as a whole, they often come from a place of marginalization, where power relations are certainly not to their advantage.

I think it's very difficult to define reckless behaviour, as there is a very limited breadth of evidence to actually prove, in the moment, whether the act is reckless or not.

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

Thanks very much.

[The Chair, Liberal, Anthony Housefather]

Just as food for thought on Mr. Cooper's question for the panel, or in terms of future questions, let's say somebody has Kaposi's sarcoma, for example, where they have actual signs that they have AIDS and they don't get tested, or let's say somebody is told by their previous partner, “I have now been diagnosed with HIV, so you should get tested” and they don't. There are other elements of recklessness, other than lack of powerlessness, that maybe you want to consider.

Mr. Ehsassi.

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you, Mr. Chair.

My first question is for Mr. Brett and Mr. Hosein.

I reviewed your 2019-20 strategic plan. In that plan, you note that there are a number of policy gaps that inhibit the reduction of HIV in marginalized communities. Could you elaborate on those gaps?