Good morning, and thank you for the opportunity to appear before you today on this important issue.
In 2010, I was lead author on the first policy options report on HIV criminalization in Ontario, which addressed concerns that continue to be central to broader discussions about HIV criminalization in Canada today.
Our key arguments at that time were: first, that the criminal law disclosure obligation in Canada does not permit people living with HIV to determine with certainty when they are subject to criminal punishment for HIV non-disclosure; second, that the distribution of punishment for non-disclosure is uneven, with a heavy burden felt by marginalized and racialized populations; third, that the approach of the criminal justice system is insufficiently informed by up-to-date science on the risk of HIV transmission, resulting in unjust prosecutions; fourth, that the overuse of criminal law exacerbates stigma and damages HIV prevention care and support; and fifth, that sound, evidence-informed prosecutorial guidance is required to ameliorate these many problems.
Much has changed since those early days. There has been more research, advocacy and dialogue with provincial and federal authorities. There have been important legal developments, some troubling, such as the 2012 Supreme Court decision, others more promising, such as the federal directive, the 2017 Justice Canada report on non-disclosure of HIV, and the Ontario provincial policy announcement made in response to that report.
The most important change has surely occurred in the science of HIV transmission. As others who have appeared before me have made clear, a global scientific consensus has emerged that people living with HIV, who are virally suppressed, cannot transmit HIV. The extraordinary implications of that change have yet to fully register.
However, what seems clear is that moving forward, HIV non-disclosure will cease to be the matter of concern for state authorities that it has been in the past. The state, whether in the form of the criminal justice system or public health, will surely have more pressing matters to address than trying to govern the conduct of people living with HIV who cannot transmit the virus.
While there have been changes, much also remains the same. The concept of a realistic possibility of transmission continues the tradition of legal uncertainty about HIV non-disclosure. People living with HIV continue to be uncertain about their criminal law liability and courts have interpreted the concept in different ways, leading to differential judicial treatment across the country.
It is also the case that the legal concept of a realistic possibility of transmission more than ever lags behind the latest science on HIV transmission. The distribution of punishment for HIV non-disclosure continues to be skewed.
Over the years, research in Canada about the public health implications of HIV criminalization has accumulated. That suggests that HIV criminalization is a serious impediment to engagement with HV testing, care and support. Two Canadian studies have specifically examined the relationship between HIV criminalization and HIV testing, yielding findings suggesting that some people are unlikely to test because of fears about HIV criminalization.
Both used survey methods to study men who had sex with men. In one study, conducted in Toronto, 7% of participants stated that concerns about prosecutions made them less, or much less likely, to be tested for HIV. The authors then used a modelling approach to estimate that the reduction in testing could result in a potential 18.5% increase in HIV transmission.
In the other study, conducted in Ottawa, 17% of men who had sex with men stated that HIV criminalization affected their willingness to get tested. This group of participants was also more likely to have never previously had an HIV test and reported a higher number of sex partners in the two month period prior to the study, suggesting that those who are discouraged from testing, because of concerns about HIV criminalization, may be more likely to engage in HIV-related risks and therefore, be more likely to be unaware of their HIV-positive status.
Other HIV criminalization studies have looked at a range of topics, including the likelihood of disclosure, impacts on sexual risk taking, awareness of and perspectives on the law, experiences of stigma, impacts on HIV prevention counselling and clinical relationships, and the impact of HIV criminalization on the professional activities of public health workers and other providers.
These studies present findings that are relevant to the question of the impact of criminalization on access to and retention in care. A repeated finding is that some people living with HIV are afraid to speak openly about their sexual activities with public health and health care providers. These studies point to how criminalization can erode a sense of trust and confidence in the confidentiality of those relationships and can significantly hamper the ability to establish patient provider relationships in which people are able to talk about their sexual activities and their difficulties with disclosure.
Three reviews of this wide body of literature internationally emphasized that HIV criminalization provides no HIV prevention benefit and is associated with significant unintended impacts that interfere with public health efforts to prevent HIV transmission. An emerging perspective on the literature views HIV criminalization as a source of HIV stigma and therefore a structural impediment to the prevention, engagement, and care cascade, the single most important approach we have to responding to the HIV epidemic.
Taking this research into account the current situation might be described as a perverse form of injustice whereby the state’s criminal law disclosure obligation punishes people on the basis of the amount of virus they have in their body but also interferes with their very ability to achieve the low levels of virus required.
How are we to respond? The federal directive is an important step but there are problems related to its geographical reach. Pursuing more lasting and widespread change through criminal law reform is a vital option. The federal government can continue to display leadership on the issue by outlining key principles that would guide the direction of that reform. One is that it first be based on a process of consultation involving legal experts, people living with HIV/AIDS service organizations, affected communities, medical and health care providers, and public health personnel. Second is that it detach HIV non-disclosure from the Criminal Code offence of sexual assault. Third is that it reserve the use of the criminal law for the most blameworthy of circumstances, namely, when a person intentionally and actually infects another person with HIV.
Finally, the question of collaboration between public health and criminal justice must be regarded as a complex and sensitive issue. Public health and criminal justice are different systems for governing human conduct with different formal powers, conventions of practice, cultures, and recent histories. Moving forward, public health should not be regarded simply as an alternative policing method and public health guidance must emphasize the significance of voluntary testing, counselling, and support for managing the epidemic. How, whether and what form any collaboration should take between public health and the criminal justice system including, for example, the matter of safeguards and guidance for flows of information about viral load, is something that requires careful consideration and widespread consultation.
Thank you.