Justice Committee on May 14th, 2019

[Jennifer Klinck]

Similar directives could be adopted in the provinces to allow for much better coherence with the federal directive, or they could be mirroring or they could go further.

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

Mr. Ryan, do you think the federal directive has had any impact in your community? Are people aware of the directive in the territories, or are they not aware of this and still believe that, in fact, they will be prosecuted?

[Shannon Ryan]

I think there's a strong belief among many of the folks we work with. We try to educate folks as much as possible about the often-changing nature of the law in this area. We try to work with them to deepen their understanding, but folks are walking around with so many assumptions about what the law says and what the law does not say. There's a fair amount of confusion, and these regional differences absolutely contribute to that at this point.

It is an arcane subject and issue for many folks. It really is. Folks are dealing with the complexities of treatment, and in many cases of our clients, the complexities in settlement in Canada. This is another complexity within which people must engage. There is a lot of confusion and the need for a lot of clarity.

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

Would you say that certainly in the racialized communities in Toronto, better access to things such as point-of-care testing, and perhaps self-testing, would help with particularly men who have sex with men getting to know their status?

[Shannon Ryan]

Yes, absolutely. We do know there are a good number of folks who are HIV-positive and are not diagnosed. Increased access to testing absolutely supports our work in this area.

We want to really get people engaged in something called the cascade. We want to get people diagnosed. We want to get them in treatment. We want to have them sustained in treatment. We want them to achieve an undetectable viral load. This reduces the overall burden of HIV in all communities, including within the gay male community.

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

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Garrison.

Ms. Salters, can you hear me now?

[Kate Salters]

I can.

[The Chair, Liberal, Anthony Housefather]

Perfect.

Before we get to our last round of questions, we're going to give you the opportunity now to do your presentation to the committee.

The floor is yours, Ms. Salters.

[Kate Salters]

Thank you. I hope you can hear me. Please let me know, or interrupt me, if you cannot.

Good morning, everyone.

My name is Kate Salters. I'm a Ph.D. trained infectious disease epidemiologist working as a research scientist at the B.C. Centre for Excellence in HIV/AIDS and a faculty member at Simon Fraser University within the faculty of health sciences.

Thank you very much for inviting me to speak with you, despite the technical difficulty.

I would like to first acknowledge the land and territories on which we gather today. It is critical to reflect on the role of colonialism in the disproportionate burden of HIV among indigenous populations nationwide.

During my brief time with you, I hope I'm able to impress on you the overwhelming evidence that challenges the criminalization of non-disclosure of one's HIV status. I will demonstrate how the law poses direct and significant barriers to our prevention efforts and provides barriers to clinical care for those living with HIV.

I'm here on behalf of and speaking on behalf of many other scientists, community members and clinicians with whom I have consulted who have witnessed the impact these laws have on our communities and the way they threaten our public health efforts.

Quite frankly, the law does not reflect reality or science. There is overwhelming scientific evidence demonstrating that when a person living with HIV is on treatment, antiretroviral therapy, not only does their health and longevity improve, but HIV replication is halted. Antiretroviral therapy drives HIV to undetectable levels in biological fluids, including blood, semen and cervical-vaginal fluid. Having an undetectable viral load is the goal of antiretroviral therapy and means that HIV cannot be transmitted to a sexual partner. I know you've heard this before, but it's very important to reinforce. This double benefit of antiretroviral therapy is known as “treatment as prevention”, or TasP, a made-in-Canada strategy formally endorsed by the World Health Organization, the UN and the Government of Canada since 2015.

My organization originally postulated the TasP strategy in 2006. Implemented in B.C., it has subsequently led to the largest decline in new HIV cases in this country. This phenomenon is not new. In 2014, 70 Canadian scientists signed a joint statement affirming the negligible possibility of sexual HIV transmission by a person living with HIV who is receiving antiretroviral therapy or uses a condom. This was five years ago. There have been at least 12 non-disclosure cases since then.

That was as of 2017, as reported by the Canadian HIV/AIDS Legal Network. Since then, major international studies have definitively confirmed that consistent and sustained antiretroviral therapy stops the onward transmission of HIV. Most recently, the partner study assessed HIV transmission amongst zero-discordant gay couples, meaning one partner was living with HIV on treatment and the other was HIV-negative.

Scientists measured more than 77,000 episodes of sex in which a condom was not used. How many transmission events were observed between study participants? There were none—zero cases. To add, previous partner studies have shown no cases of HIV transmission between zero-discordant gay and straight couples after observing over 58,000 acts of condomless sex. In other words, undetectable means HIV is untransmittable, or U=U.

The Honourable Ginette Petitpas Taylor acknowledged the science behind the U=U message to end stigma and in 2018 became the first minister of health to officially endorse the campaign, demonstrating Canadian leadership on science-informed health policy.

In stark contrast to these efforts, the current Criminal Code perpetuates HIV-related stigma, leading to significant delays or total lack of testing. As a result, individuals living with HIV will not initiate treatment in a timely manner that eliminates the risk of onward HIV transmission. The virus rapidly replicates during acute or early infection. Eliminating delays to diagnosis and connecting people to care are the steps needed to eliminate the HIV epidemic in Canada.

Women are especially at risk of delays in access and care. This is linked to many factors, including HIV-related stigma, poverty and poor understanding of the needs of women living with HIV.

A study conducted by our organization found that of nearly 1,000 participants, significantly more men than women living with HIV, 65% versus 45%, reported fulfilling the current legal requirement to have both a low viral load and condom use with a new sexual partner. This was despite the fact that nearly 100% of the participants reported doing either one or the other. This means that despite taking the established steps needed to guarantee the elimination of transmission risks, more than half of the female participants in our study could have been at risk of being charged with aggravated sexual assault.

The current law fails to address how women, particularly cis women and transwomen, may not be able to safely negotiate condom use with their sexual partners. These real, gendered risks are not reflected in the current interpretation of the law. Research conducted by me and colleagues found that over 80% of women living with HIV in B.C. have reported experiences of violence in their lives. Similar studies have been published, across the national cohort of over 1,400 women living with HIV, showing very similar statistics. More recently, we have shown that over 60% of women living with HIV have experienced sexual or physical intimate partner violence, suggesting huge inequities in sexual relationships. Women have reported being threatened, assaulted, abandoned and outed as being HIV-positive after disclosing their HIV status to sexual partners. Women living with HIV may, then, instead choose to take actions within their control in order to eliminate the risk of HIV transmission onward by maintaining an undetectable viral load, or using condoms.

It is naive and inappropriate to assume that women living with HIV should be legally required to ensure that their male sexual counterparts use condoms. Under the current interpretation of the law, a woman with undetectable HIV who is unable to convince her male sexual partner to use a condom may be charged with aggravated sexual assault. She would then be classified as a violent sexual offender despite having no intention of transmission and there being no risk of HIV transmission. Nevertheless our research shows women living with HIV are doing everything in their power, through adherence to antiretroviral therapy and sustained virologic suppression, to eliminate the risk of onward HIV transmission.

Relying on an undetectable viral load is an empowering and effective way for women living with HIV to reduce the risk to themselves and others. Aggravated sexual assault is among the most serious offences within the Criminal Code and should be applied when the perpetrator wounds, maims, disfigures or endangers the life of the complainant. This law has been used by disgruntled former partners as a form of violent retribution against people living with HIV. This law stigmatizes people living with HIV. This law prevents people from getting tested and treated. It is imperative that we stop erroneously using this law to criminalize the sexual behaviour of people living with HIV.

Thank you for your time.

[The Chair, Liberal, Anthony Housefather]

Thank you very much. I'm really glad we finally were able to get that connection working.

We have one more question, which is from Mr. McKinnon.

Mr. McKinnon, the floor is yours.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you, Chair, and thank you, witnesses, for being here.

Thank you, Ms. Salters, for hanging in with us to give your testimony. Unfortunately, at this point most of my questions are directed elsewhere.

I'm going to start with a question that Mr. Boissonnault has asked me to ask Mr. Ryan.

You thought the lightning-fire questions were over. They're not.

In accumulating statistics, Mr. Ryan, about the number of contacts you have per day, how many days a week are you open?

[Shannon Ryan]

Five days a week.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you.

I'd like to carry on with Ms. Klinck.

You indicated the federal directive doesn't go far enough. Certainly it only applies to the territories. But assuming a similar thing would be applied elsewhere in the provinces, you said that it's imperfect and needs to go further.

How should it be changed?

[Jennifer Klinck]

The primary difficulties with the directive are that it still requires prosecutorial judgment regarding the types of activities that will trigger criminal liability, so there is room for prosecutions based on conduct, such as sex with a condom, depending on the vague sense of other risk factors that aren't defined in the directive. That leaves the directive unclear and it is inconsistent with the community consensus statement that says where a condom has been used, there shouldn't be criminal liability.

It also still contemplates the use of sexual assault offences, again based on the exercise of prosecutorial judgment, based on factors that aren't clear. Given that the community consensus is against sexual assault offences being used for simple HIV non-disclosure, those are certain defects with the directive as it currently stands. Of course, the basic point that a directive is less clear than amendments to the Criminal Code, because it's just guidance for prosecutors, is a more long-term concern. If we could have the directive or a better version of the directive applied on the national scale that would be an improvement. But, ultimately, legislative reform is the only way to ensure clarity and consistency in the application to the criminal law.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

I guess I'm focusing on the HIV directive at this point, because at this point in Parliament, there is no chance of changing the law. Improving the HIV directive is something that could be done sooner, and it could be propagated by the other attorneys general across the country.

Thank you for that answer. I'll switch to Ms. Salters.

I know this is not your field of expertise, but are you aware of whether or not there is an HIV directive, or similar approach, issued by the attorney general in British Columbia?

[Kate Salters]

Yes, there is a directive in this province.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Is it similar to the federal one? Do you think it's an appropriate directive?

[Kate Salters]

It's a step, but it doesn't go far enough.

As the other speakers have mentioned, it needs to be applied consistently. It's a step, but what we've called for is that public health does not warrant criminal sanctions for sexual behaviour.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Are there any circumstances in which the criminal law should apply? I agree with everyone who has testified, basically, that sexual assault provisions should not apply in any case. I'm wondering if, in any case, criminal negligence causing bodily harm might not be more appropriate. In what circumstances might that be?

Ms. Klinck.

[Jennifer Klinck]

The point was previously made by Mr. Boissonnault that public health legislation already provides for a device to respond. Egale has serious concerns about the criminalization of HIV non-disclosure in general and particularly outside the context of actual and intentional transmissions.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Are you saying that in no circumstances should the criminal law be applied?

[Jennifer Klinck]

Criminalization should be seriously questioned, and the only circumstance in which it should be even contemplated is actual and intentional transmission.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Mr. Ryan, would you agree?

[Shannon Ryan]

Yes, I think so. The intentional transmission, as I said earlier, after every other public health approach has been exhausted. We've been most successful in addressing challenges with disclosure when we've collaborated with public health units as an organization, and been able to have real conversations, really through a cultural lens, with folks who are struggling with disclosure. Intentional transmission is incredibly rare, in my experience. It's not something we see much of, at all. Only in the rarest of cases do I believe this happens.