Justice Committee on May 14th, 2019

[Fanta Ongoiba]

All right. Thank you.

I listened to the other witnesses talking about their objectives. As I said in my opening statement, the criminalization of HIV non-disclosure significantly impacts prevention success rates.

Before coming to Canada, members of the African community were tested for HIV/AIDS in their home countries. If they're infected, they can't even obtain a visa. Even students who are infected aren't allowed to come.

When people reach out to Africans in Partnership Against AIDS, which is a Toronto-based association, we give them information pertinent to the situation in Canada. In their home countries, signs informing the public about the reality of AIDS are very visible. People know about the disease and take precautions. They talk about it with one another. As soon as they set foot on Canadian soil, however, there is nothing telling them that AIDS exists here as well. Most of the time, then, the members of our community are infected here, in Canada. We do our best to remind them that AIDS is a reality everywhere, in Canada and Africa alike, and that they need to take precautions.

We've started working with the Centre francophone de Toronto to provide people with information at points of entry such as airports. Those arriving in Canada for the first time deal with immigration officials. The kits they are given upon arriving now include information pamphlets. They indicate who to contact and provide guidance on what to do.

We educate them on HIV/AIDS so that they don't become infected, but if they do, we tell them where they can turn to access the services and support they need.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

It is now Mr. Virani's turn. He will be sharing whatever time he has left with me.

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

Thank you.

For the benefit of the committee, in the context of some of the previous questions, I think we might want to look at the notions of attempt. Attempt is outlined in section 463 of the Criminal Code, and that might address some of the concerns raised by Mr. Cooper. Also, if we are in the realm of sexual assault, there are the provisions about when you vitiate consent through fraud. Therefore, there are provisions already within the Criminal Code that could possibly address what was being raised.

I want to start with Mr. Vijayanathan.

Haran, I've heard of your reputation through my wife, who served as the chair of your board. I've seen your work in action both here and in Toronto. You're obviously very modest, because you neglected to mention the leadership role you took with the Bruce McArthur investigation and the serial killings in the LGBTQ2 community in Toronto. That was a significant leadership role in terms of liaising with municipal leaders, particularly law enforcement.

I salute you for that, but I want to ask how that connects here, because what we've heard a bit today but also in previous testimony is that it's one thing to have directives and it's another thing for them to percolate onto the ground.

Can you comment on the work that needs to be done to ensure that the police officers, the law enforcement officials and the Crown prosecutors are understanding the science and using it to inform their decisions to lay charges and proceed with charges?

[Haran Vijayanathan]

Absolutely.

With a whole missing person's case, it's actually police officers, front-line officers, who don't understand how people come in to report something that's happening. Then when they go out there, they're using laws that they might not understand, that have changed, and so on. For example, right now, police officers are directed to connect with the Crown in Ontario before they lay a charge. That's actually really good news, but only a few officers know that.

There's work being done that's really good in addressing it. However, these overarching principles and laws that exist allow for misinterpretation and misrepresentation within communities. If only a few people have that knowledge, that knowledge gets misused, and by the time an individual goes through the system and comes out at the other end, it's again reported in media in certain ways and then there is an impact on a lot more people. They're not going to get tested or they're going to actually delay getting tested, delay getting access to treatment and delay getting support.

That's how it plays out in the real-life world. Again, our justice system is fair and just. That's what I'd like to believe. We have processes in place, but as I said in my statement, if we can't engage and support individuals working together as community individuals, legal representatives and government officials to sit down and really look at local situations and have conversations and hash out how this is actually going to happen, taking from policy to practice is actually quite challenging. However, it becomes easier when you do it all together.

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

I have about two minutes left, and I want to ask both you and Mr. Morrisseau-Beck, we've heard from Ms. Ongoiba and others, about the disproportionate impact on the black Canadian community, but also on indigenous people, and you're adding South Asians and Middle Eastern LGBTQ to that pool.

If you remove the notion of a violent sexual offender from the charging provisions, what impact will that have on the people you are serving, both at ASAAP, and Mr. Morrisseau-Beck, the indigenous community that you serve at your agency?

[Haran Vijayanathan]

That actually has a huge impact, because it takes the severity of the law away. A lot of people are afraid of going to jail. A lot of people are afraid of interacting with the justice system from a criminal perspective.

If we can remove that fearmongering language, that would actually allow people to sit down and listen to what the laws are and be educated and treated well. Therefore, absolutely and certainly, and again, with the LGBT community and their history in this country and being illegal themselves, especially gay men, who were criminalized at one point, and the decriminalization, unfortunately some of those bawdy-house laws still exist within the justice system. However, because we decriminalized in 1969, we were able to educate and then allow people to advance their engagement.

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

Mr. Morrisseau-Beck, did you want to add to that?

[Duane Morrisseau-Beck]

Yes. I want to concur with what my colleague said.

From an indigenous perspective, indigenous people have been suppressed and oppressed by the state of Canada, so when we're dealing with prevention and promotion and just working with indigenous communities, we have a really hard time advancing our work. By removing this and reforming it, we would be able to work with our communities a little more succinctly and hopefully begin to lower the rates of HIV in our communities.

Thanks.

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

Thank you very much.

I'll turn it over to Mr. Housefather.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

I want to come back to the crux of what we're actually looking at, which is whether or not we're promoting reforms to the criminal law.

My question is for Professor Mykhalovskiy.

In response to Mr. Cooper, you said earlier it was a legal question. I think it's more an ethical question, and that's why I want to come back to it. The criminal law is built on ethics. For me, there are two particular issues. One is, what is the standard we use to actually charge someone? Is it whether or not there's an actual infection? Then there's the question of whether there is intention. I think you are both saying that it should be both intention and actual infection.

Let me look at another scenario, an ethical scenario, for a sociologist. You have someone who has a viral load that is high, who is not on antivirals and who knows that they're infected. They engage in sexual behaviour that could transmit the disease—either vaginal or anal sex—with another individual. They're in a relationship in which they're peers, so nobody is coercing one another—and the other person says, “Are you infected with HIV? I want to make sure that you're not before I engage in sexual behaviour with you.” The person lies and says, “I am not infected,” in which case the person decides not to use a condom or to go ahead with something they wouldn't go ahead with, and the virus is then passed from one to the other.

There's actual infection and there is reckless behaviour. The person didn't intend to transmit the virus, but they engaged in reckless behaviour that led to the transmission of the virus. Can you explain to me why that person should not be prosecuted?

[Eric Mykhalovskiy]

I think whether a pattern of reckless behaviour is interpreted as intention is a legal question. What the appropriate use of the criminal law would be in that circumstance is a question that should be discussed. I don't think the argument is that there's no role for the criminal law in circumstances in which there is significant reckless, or whatever the—

[The Chair, Liberal, Anthony Housefather]

That's exactly what I'm trying to establish, Professor: that as opposed to “intentional”, which everybody is using, the standard may well be “reckless”.

[Eric Mykhalovskiy]

I can't answer that question because I don't know what the legal repercussions are of using the definition of “recklessness” in the law. You had lawyers here all week.

[The Chair, Liberal, Anthony Housefather]

We've been asking it.

[Eric Mykhalovskiy]

Well, then, I'm not sure that I can add much to it. When you get into that, you're asking me a question about.... I don't know what the definition of “recklessness” in law is, and what it opens the door to in terms of how it could be used in an expansive way. What we've seen in the past is that prosecutors will use whatever charge they can to secure a conviction. I think the approach is to try to encourage a parsimonious use of the criminal law in ways that are sensible, and the specifics of that constitute a question of deliberation.

[The Chair, Liberal, Anthony Housefather]

I understand. I just wanted to explain that.

Thank you very much. I appreciate all of the help we've had.

Thank you very much.

I hope it wasn't too much trouble to join us from Saskatoon.

Again, I really appreciate all your testimony. It was all very helpful.

We'll take a short break and move to the next panel.

I'd ask the members of the next panel to please come forward.

[The Chair, Liberal, Anthony Housefather]

I will resume the meeting. We are now joined by our second panel of the day.

From the Black Coalition for AIDS Prevention, Mr. Shannon Ryan, the Executive Director, is joining us from Toronto. Welcome, Mr. Ryan.

From the British Columbia Centre for Excellence in HIV/AIDS, Ms. Kate Salters is joining us by video conference from Vancouver. Welcome, Ms. Salters.

From Ottawa we have from Egale Canada Human Rights Trust, Ms. Jennifer Klinck, who is the Chair of the Legal Issues Committee. Welcome.

[Jennifer Klinck, Chair, Legal Issues Committee, Egale Canada Human Rights Trust]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Basically, we start with the people who are on video conference first because we don't want to lose them. We're going to start with Mr. Ryan.

Mr. Ryan, the floor is yours.

[Shannon Ryan, Executive Director, Black Coalition for AIDS Prevention]

Great.

Good morning, everyone. I'd like to thank members of the committee for the opportunity to speak to all of you today.

My name is Shannon Thomas Ryan and I'm the Executive Director of the Black Coalition for AIDS Prevention, otherwise known as Black CAP. Black CAP is a non-profit organization with a mandate to address HIV in Toronto's African, Caribbean and black communities. We've delivered services for 30 years, and are the largest black-specific, HIV-focused organization in Canada. We work with more than 300 black people living with HIV every year.

I've led this organization for almost 13 years, and over this time I've witnessed the detrimental and significant impact that the criminalization of HIV non-disclosure has upon Canadians living with HIV and, more specifically, black Canadians living with HIV.

You've heard from a number of highly qualified witnesses about the issue, and I won't offer my thoughts on the science or the law. Other witnesses have accurately and adequately addressed advances in treatment, the science of viral transmission, the unjust nature of the law in this area and emerging thinking about appropriate responses to non-disclosure.

Black CAP strongly endorses these positions. We also endorse the brief on ending HIV criminalization in Canada recently submitted to you by the Canadian HIV/AIDS Legal Network. It reflects the thinking of our sector and sensitively considers the realities of people living with HIV in Canada.

Today I'd like to speak about the unique and specific impact that the criminalization of non-disclosure has on black people in Canada. As you may know, black people in Canada carry a significant burden of the HIV epidemic. According to the Public Health Agency of Canada, black people account for almost 22% of all HIV cases in our country, while comprising about 3.5% of the population. Black people in Canada also have highly disproportionate incident rates, about 6.4 times higher than people of other ethnicities living in Canada.

We also know that between 2012 and 2016 about a half of those charged with these crimes were black men. It's also important to highlight the media portrayal of black people in Canada charged in these cases. According to a 2016 report, black communities are differently portrayed in media narratives than others. The report cites that African, Caribbean and black men living with HIV are highly represented among racialized defendants, and while black men account for about 20% of people who have faced criminal charges related to HIV non-disclosure in Canada, they're the focus of about 62% of newspaper articles dealing with such cases. The report also indicates that there are more than 2.5 times the number of newspaper articles featuring black than white defendants. This is highly problematic.

We also know of many black defendants unjustly charged with sexual assault crimes who have been deported to their country of origin because of these charges, whether founded or not.

This tells us something very important about how black Canadians living with HIV are impacted by non-disclosure law. These realities support our assertion that black people in Canada carry a significant and disproportionate burden of the HIV epidemic and charges for non-disclosure.

I'd like to cite the recent ACCHO “Criminals and Victims?” report. Importantly, the report highlights the impact of racialization or the process by which non-white groups are designated as different and singled out for unequal treatment on the basis of their race, ethnicity, language, religion or culture. There's no doubt that the criminalization of HIV non-disclosure is a highly racialized issue when we consider the experiences of black people in Canada living with HIV. This racialization is created by sustained, institutional anti-black racism in Canada. In order to understand how the criminalization of HIV non-disclosure is a racialized issue and to develop appropriate interventions and responses, we must recognize the historical legacy of racism and injustice within which the contemporary criminalization of HIV exposure sits. Deep-seated and institutional anti-black racism has long been a feature of black people's interactions with police, courts and prisons, and for centuries in our country racist beliefs and practices have permeated our criminal justice system.

Today, the relationship between police and a broader criminal justice system and black people in Canada is more troubling than ever. We all know this. Racialized communities experience over-policing, and the practice of racial profiling is very well documented. Racialized people tend to be under-represented among lawyers, judges and juries, leading many accused people to feel that justice will not be done because the system does not understand or represent them.

Lawyers and judges are also criticized for relying on stereotypical attitudes and views of racial minorities and for failing to recognize or being unprepared to deal with issues of race and racism. As a result, although the Canadian justice system strives to provide an impartial adjudicative process that dispenses justice, regardless of race, it does not often deliver on its promise of equality, and often contributes to the marginalization of people of colour within Canada.

Moreover, the law has a difficult time taking into consideration the obstacles and limitations black people face within Canadian society. The criminal process is an adversarial one. Complex events, subject to multiple interpretations, are reduced to simple statements of fact. There is a perpetrator and a victim. One person is responsible; another is claiming redress. It is very difficult to fit into this tradition a nuanced and contextualized understanding of HIV disclosure, and sex and intimate interpersonal encounters, mediated with gender roles.

We would also like to reiterate that the criminalization of HIV non-disclosure in any form is at odds with public health objectives that our organization works to uphold. As it is, HIV is highly stigmatized in black Canadian communities. Black CAP struggles with discussions about the basics of HIV prevention and treatment, the importance of HIV testing and the value of disclosure. However, the legitimate fear of prosecution of black people in Canada living with HIV strongly deters people from testing, treatment and disclosure.

HIV criminalization can also deter access to HIV care and treatment by undermining Black CAP's work with people living with HIV. Prospective clients have simply chosen not to engage with health care professionals due to this environment and this makes our work much more challenging.

We strongly believe that public health approaches, especially approaches that include collaboration between front-line and community-based organizations and public health teams, are a much more appropriate response to non-disclosure. We've seen the best outcomes when Black CAP staff, who share similar identities with black HIV-positive folks, have collaborated with public health staff to provide supports, facilitate disclosure, manage viral load and reduce the likelihood of transmission to a negative partner. This is one of the ways to effectively and meaningfully address the drivers of non-disclosure. However, we do recognize that other drivers that limit one's ability to attain an undetectable viral load, such as immigration status, housing, health care and health treatment access, also exist.

You also asked witnesses to speak to the best way to improve co-operation between the criminal justice system and public health authorities. We strongly believe that there is a significant and pressing need for a frank examination of the realities of pervasive and deeply rooted anti-black racism in Canada, within these institutions. We seek your leadership in this area.

We also believe that Criminal Code reform is urgently required, in consultation with the HIV community, in order to remove the offence from the realm of sexual assault law. We are highly concerned that Canada has the unfortunate distinction of being the world leader in the persecution and prosecution of people living with HIV, and we call on the federal government to use any means at its disposal to repair the damage it has done to those living with HIV. This includes adhering to the directives from the legal networks providing briefs to this committee, calling for the creation of evidence-based prosecutorial guidelines, the reform of the Criminal Code, and resources, such as training.

We also ask that such training include a focus on anti-racism and its specific and unique impact on black and indigenous communities in Canada. This should also be done in collaboration with organizations such as the Canadian HIV/Aids Legal Network, HALCO, Black CAP and others, researchers and academics and most importantly, people living with HIV.

Finally, I would really like to recognize the advocacy efforts of leaders such as Richard Elliot from the Canadian HIV/Aids Legal Network, Ryan Peck from HALCO, Jonathan Shime and others who have represented the HIV sector in communities so ably. Their advocacy efforts have resulted in meaningful debate on this issue. Most importantly, we need to recognize black people living with HIV, who have been unjustly charged with these crimes, publicly shamed, had their lives turned upside down and spent time in prison. They have suffered the unfair impact of unjust laws. We call on you for action in this area.

Thank you, again, for the opportunity to share my thoughts on this issue. We appreciate the opportunity.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Ryan.

We seem to have some trouble with the connection to Ms. Salters, so we will ask Ms. Klinck to go next, and then we'll come back to Ms. Salters.

Ms. Klinck.

[Jennifer Klinck]

Thank you.

On behalf of Egale Canada, I would like to thank the chair and the members of the committee for the opportunity to speak today on this fundamental issue of human rights and public health.

In 2017, Egale’s Just Society Committee published a report reviewing Canada’s criminal justice system and identifying provisions of the Criminal Code that have a discriminatory effect on LGBTQ2SI Canadians and that are therefore in need of reform.

That report identified Canada’s criminalization of HIV non-disclosure as a key area for change. Consistent with the report’s recommendations, Egale fully endorses the community consensus statement of the Canadian Coalition to Reform HIV Criminalization.

In particular, Egale’s position emphasizes that, first, any use of the criminal law should be limited to actual and intentional transmission of HIV. Second, in keeping with the “Expert consensus statement on the science of HIV in the context of criminal law”, in no circumstances should the criminal law be used against people living with HIV who use a condom, practise oral sex, or have condomless sex with a low or undetectable viral load for not disclosing their status to a sexual partner. Third, the offence of sexual assault must not be applied to HIV non-disclosure in the context of sex between otherwise consenting adults, as it constitutes a stigmatizing misuse of this offence. Reforms must ensure that they do not further stigmatize people living with HIV or undermine protections against sexual violence.

Egale’s position is informed by the reality that the criminalization of HIV non-disclosure discriminates. It disproportionately affects already marginalized populations and contributes to their marginalization.

To begin, the criminalization of HIV non-disclosure cannot be separated from the discriminatory stigma that attaches to HIV. It is important to recall the historical context. Homophobia marked the response to HIV from the outset, when the first cases of the illness were reported in 1981. At first, it was labelled “gay-related immune deficiency” or GRID.

Further, criminalization of HIV non-disclosure continues to have a disproportionately harmful impact on marginalized people, including members of the LGBTQ2SI community. Troublingly, some of these inequalities have only become worse since the Supreme Court of Canada’s decision in R. v. Mabior.

As set out in “HIV Criminalization in Canada: Key Trends and Patterns”, which was included in the materials submitted to the committee by the Canadian HIV/AIDS Legal Network, black men are overrepresented in the prosecution of HIV non-disclosure, especially since the Supreme Court of Canada’s decision in Mabior. They are also significantly overrepresented in media coverage, contributing to intersectional stigma and prejudice.

Nearly half of the women charged with this offence are indigenous.

Criminalization of HIV non-disclosure also continues to cause particular harm to gay men, bisexual men and other men who have sex with men. According to the Public Health Agency of Canada’s 2017 surveillance report on HIV in Canada, the “gay, bisexual and other men who have sex with men” exposure category continued to represent almost half of all reported HIV cases in adults at 46.4%. As such, the threat of criminal prosecution disproportionately affects the lives of gay men, bisexual men and other men who have sex with men.

As noted by the key trends and patterns document, men who slept with men represented 25% of all men charged from 1989 to 2016, and post-Mabior, the numbers increased significantly to 38%.

Finally, to date, consideration of the impact of criminalization of HIV non-disclosure on members of the trans community in Canada has been woefully inadequate. However, there are strong indications that such criminalization harms transwomen in particular.

The Public Health Agency of Canada’s 2012 population-specific HIV/AIDS status report on women noted that it found no Canada-specific data on HIV prevalence among transwomen, but that a meta-analysis estimated a particularly high HIV prevalence rate of 27.7% among transwomen in North America.

Further, the academic research on the experiences of transwomen who have sex with men has found that their experiences of violence, transphobia and stigma, depressive symptoms, substance use, unstable housing and extreme poverty contribute to HIV-related sexual risk behaviour. These factors often cluster together.

Egale echoes concerns about the failure of HIV policies to take into account the lived experiences and perspectives of the trans community that have been raised by community activists Nora Butler Burke, Professor Zack Marshall and Professor Viviane Namaste, the research chair in HIV/AIDS and sexual health at Concordia University.

In short, people who are already marginalized face a disproportionate risk of contracting HIV. Risk factors for HIV are often interrelated circumstances of marginalization. For example, members of the LGBTQ2SI community include injection drug users and sex workers. Criminalization of these already marginalized communities only adds to their social exclusion, fuelling stigma and frustrating public health initiatives.

The LGBTQ2SI community knows all too well the harm of being criminalized based on existing grounds of social exclusion. As such, the criminalization of non-disclosure of HIV status is an issue of critical concern to the LGBTQ2SI population.

Egale is encouraged by the directive to the federal prosecution service and recognizes that it is a step in the right direction. However, more needs to be done. In terms of its content, the federal directive does not fully reflect the principles in the community consensus statement. For example, it calls for prosecutorial judgment regarding the types of activities triggering criminal liability and the use of sexual assault offences.

Further, because it is drafted as guidance to prosecutors, it does not set clear standards for what constitutes criminal conduct.

Most significantly, the federal directive, which applies only in three territories, does little to meaningfully curb prosecutions. Although the federal directive is a positive step forward, legislative action is required to ensure clear and uniform application of the criminal law across the country; to constrain the application of the criminal law to cases of actual and intentional transmission of HIV; and to build upon and make durable the federal directive's positive step forward.

Finally, while it is Egale's position that amendments to the Criminal Code are necessary, it is also essential that these be carefully considered and developed in consultation with people living with HIV, medical experts, legal experts and community stakeholders. The much needed amendments must be crafted to avoid perpetuating stigma toward people living with HIV and continuing to thwart public health initiatives.

In terms of immediate action, while a legislative solution is developed, Egale calls upon the federal government to actively encourage the provinces to adopt similar directives or directives more consistent with the community consensus statement.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We still have not recovered the video connection to Ms. Salters or an audio. My suggestion is we proceed to questions and if we recover Ms. Salters, we'll give her eight minutes.

Mr. Cooper.

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

Thank you, Mr. Chair, and thank you to the witnesses.

I'll direct my first question to Mr. Ryan.

You stated that the criminalization of HIV non-disclosure discourages testing. What evidence do you have to back that up?

[Shannon Ryan]

From my perspective, and I'm sure there's academic evidence out there that could speak to this, it is largely anecdotal. We do hear from folks every day about the articles and stories they see in their local papers. We have many conversations with our community members about their understanding of non-disclosure law. The media portrayal and its challenging framing of often black men who are living with HIV really limits people's level of engagement with testing, treatment and disclosure. We often hear this from our clients in our organization.

I believe folks like Eric Mykhalovskiy may have spoken to some of the evidence in this area already, but unfortunately, my perspective on this is largely anecdotal.