Justice Committee on May 14th, 2019

[The Chair, Liberal, Anthony Housefather]

Good morning, everyone.

Welcome to the Standing Committee on Justice and Human Rights as we resume our study on the criminalization of non-disclosure of HIV status.

For our first panel this morning, we are joined by four witnesses. From Africans in Partnership Against AIDS, we have Ms. Fanta Ongoiba, Executive Director. She is joining us by video conference from Saskatoon. From the Alliance for South Asian AIDS Prevention, we have Mr. Haran Vijayanathan, Executive Director. As an individual, we have Mr. Eric Mykhalovskiy, Professor at York University. From the Ontario Aboriginal HIV/AIDS Strategy, we have Mr. Duane Morrisseau-Beck, President and Chair.

Welcome.

As everyone knows, you all have eight minutes to deliver your opening statements.

You can proceed in English or in French.

Ms. Ongoiba, since you're here by video conference, we're going to start with you. We don't want to lose you.

Ms. Ongoiba, the floor is yours.

[Fanta Ongoiba, Executive Director, Africans in Partnership Against AIDS]

All right.

Good morning everyone.

Thank you for inviting me to appear before the committee today.

I am extremely proud and delighted to address the committee today and to fight for HIV non-disclosure in support of all those affected. I will share with you how this issue impacts members of the African, Caribbean and black community in Canada, and Ontario, in particular.

Addressing this issue is a priority for us because it affects people from all walks of life, but especially marginalized populations. We have long been concerned about the criminal laws and the punishment they essentially inflict on people living with the virus. We think it is high time that the laws change for the better, so that those affected can lead a healthy and peaceful existence, like everyone else.

This is also about normalizing the face of HIV/AIDS to send the message that HIV/AIDS does not discriminate. It doesn't care about what colour a person's skin is, what they look like or whether they are rich or poor. HIV/AIDS crosses all boundaries. It would therefore be better if everyone were on the same page, working hand in hand to fight the scourge and surrounding negativity, while supporting prevention efforts. That would, at a very minimum, help those affected to lead happy lives, like everyone else, and to feel loved and accepted by all.

I know that we don't have much time for a presentation, but this is my plea regarding a disease that affects all strata of society. It's essential to rethink the law so that people can once again be seen as normal.

The most marginalized and vulnerable people affected are women. They, in particular, are vulnerable in the face of the disease. They are the ones who give life and are certainly not spared. What's more, women are the caretakers of children and men. Criminalization prevents people from revealing their status and being seen as normal. In the current climate, they are seen as abnormal.

We are all here for the same reason. I applaud you for holding a debate on this scale, bringing lawmakers and community workers together to foster mutual understanding in pursuit of the common good. In the African, Caribbean and black community, the effects of these laws are strongly felt, especially by women.

It's also important to look at the issue through the immigration lens. To some extent, people suffer prejudice. People leave war-torn countries for a better life here, in Canada. Not all of them bring the virus with them; some of them contract it here.

Therefore, no one can say that immigrants are bringing the disease to Canada. The justice system criminalizes people living with HIV/AIDS, mainly heterosexual African, Caribbean and black men. Their cases are highly publicized, with their photos being splashed everywhere. If they are sent to prison, they leave their families behind. Their reputations are ruined and they lose everything they had. The damage done by these laws leads to major isolation and even suicide. These cases come down to one person's word against the other's. The law makes no allowances for situations where a person claims that the other never disclosed their status even if they did. The person who makes the initial complaint will always win. Let's face it, it's the person who complains about the other.

The criminalization of HIV non-disclosure can be viewed in a number of lights. For instance, the current situation does more harm than good from a prevention standpoint. It drives people into hiding and discourages them from getting tested. It results in fewer people being diagnosed and receiving treatment. How can we treat someone when they don't even know they have HIV?

Furthermore, how can we achieve the UNAIDS 90-90-90 targets? That means diagnosing infected individuals, providing treatment to them and ensuring they sustain treatment. By criminalizing HIV non-disclosure, we rule out the possibility of achieving the 90-90-90 targets, in my view.

The statistics show that, in Canada, 86% of infected individuals are diagnosed, 91% receive treatment and 81% remain in treatment. That's a good thing. However, if you take the figures 86-91-81, it represents just 73%, which means we are still a good ways away from the 90-90-90 target. The situation is improving, though. The figures we have now are encouraging, especially when it comes to individuals who sustain treatment. That's a good thing in Canada.

Nevertheless, as far as the criminalization of HIV non-disclosure is concerned, I strongly believe we need to reconsider the laws. We need to relax Criminal Code measures that target people with HIV. I would suggest that we look to other countries for inspiration. Cuba, for instance, did not criminalize non-disclosure and has made significant strides with respect to HIV/AIDS infection rates.

Canada has the ability to consider other dimensions as well. We can look at ourselves in relation to other countries such as those in Africa, where the situation is endemic. Although that's not true for the entire continent, it is the case in a number of countries. Considerable progress has been achieved there. HIV non-disclosure is not criminalized, and every effort is made to help people living with the virus, while providing them with support.

By criminalizing HIV non-disclosure here, in Canada, we are preventing people from living their lives freely and disclosing their status, all of which does more harm than good.

I don't want to monopolize the committee's time. I'm not sure whether my eight minutes are up, but that's what I wanted to say. Criminal Code provisions targeting people living with HIV/AIDS need to be reviewed and relaxed so that we can all work hand in hand for the better.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much for your presentation.

We will now move on to the next witness.

Next we'll move to the Alliance for South Asian AIDS Prevention.

[Haran Vijayanathan, Executive Director, Alliance for South Asian AIDS Prevention]

Good morning, Honourable Chair and members of the committee. Thank you for the invitation to present today.

My name is Haran, and I am the Executive Director at the Alliance for South Asian AIDS Prevention, also known as ASAAP since our humble beginnings in 1989. Today our programs are inclusive of not just South Asian communities but also a very diverse Middle Eastern community. This year marks ASAAP's 30th year of service to a now broader demographic of racialized individuals living with, affected by and at risk of HIV and AIDS. That was really our primary purpose in forming ASAAP.

In our nascent year, tragedy struck when a South Asian couple died from AIDS-related complications. Their deaths were the direct result of not being able to access life-saving treatment, medical attention and care linked to a language barrier and a lack of ability to navigate our health care system.

In response to their loss, a group of South Asian LGBT activists founded ASAAP to ensure a crisis like this would never happen again. We have a very high rate of success, with 95% of our clients maintaining a suppressed viral load, which means that HIV cannot be passed on during sexual intercourse. Moreover, HIV is considered a manageable chronic health condition by the Public Health Agency of Canada, which is excellent news.

However, attitudes toward people living with HIV have not kept pace with the science. There is widespread stigma and accompanying discrimination against people living with HIV, and people living with HIV regularly face heightened legal issues because of their HIV positive status. Although 95% of ASAAP's clients have a suppressed viral load, every one of them has faced HIV discrimination, including loss of jobs, abandonment by family, eviction, denial of health or dental care, treatment as criminals even when no crime has been committed, physical assaults after disclosing their HIV status, denial of immigration status and being outed as HIV positive by family members and former partners.

Within the past two years, amidst the cheering for undetectable equals untransmittable, ASAAP's tight-knit group of long-term survivors have attended the community memorials of several of their beloved peers, half of whom have died by suicide or by refusing to take treatment and medical care. Imagine that. In the age of U=U, people are still dying of AIDS-related complications.

Criminalization of HIV is making things worse. In addition to blatant cases of individual injustice, the over-criminalization of HIV is hampering the HIV response in Canada. We know that people in South Asian and Middle Eastern communities are avoiding getting tested because they fear that, once diagnosed with HIV, they will face further repercussions in the form of stigma and discrimination, criminalization, incarceration, rejection and severe isolation.

Criminalization of HIV promotes and maintains the stigma. It reinforces fear and ignorance of HIV and those living with it. Clients of ASAAP have repeatedly stated that it was not HIV but the stigma that killed their peers too soon, long before the current life expectancy of people living with HIV.

Clearly, people living with HIV and AIDS in Canada are not living the improved quality of life they should be living as members of one of the richest countries in the world. This is despite the availability of highly effective HIV drugs that have minimized the long-term side effects. If Canada, as a signatory to the UNAIDS 90-90-90 goals, wishes to honour its commitment, there must be immediate Criminal Code reform in order to remove the offence from the realm of sexual assault law and have it focus on intentional and actual transmission.

As of 2016, 86% of Canadians were tested for HIV; 81% of Canadians were on treatment and 91% of Canadians achieved viral suppression. While we are all well on our way to achieving the 90-90-90 goals, with the elimination of criminalization of HIV—a significant root cause of stigma that hinders care, treatment, support and prevention—Canada would be well positioned to reach, if not surpass, the 90-90-90 goals.

The federal Attorney General's directive on limiting HIV non-disclosure prosecutions in the territories where federal prosecutors handle Criminal Code cases was a step in the right direction, but more is needed, including reforms to the Criminal Code to further limit the currently broad scope of HIV criminalization in Canada.

Using the MIPA principles, the meaningful engagement of people with AIDS, it is imperative that reform take place in consultation with meaningful engagement of those living with HIV along with leaders in the legal, scientific and AIDS services organizations endorsed by the broader HIV community. Those reforms should achieve two things. First, they should 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 law to cases of intentional, actual transmission of HIV to another person.

Intentional insightful deliberations will yield the community- and government-led initiative to address the criminalization of HIV and in what section of the Criminal Code this law would rest. As a government who has continued to demonstrate care for the well-being of all, I encourage you to now strive to be the first country to implement a nationwide educational policy against HIV stigma and discrimination.

You will be well informed and will monitor their health with regular testing, and due to the use of widespread educational campaigns, our youth as tomorrow's leaders will model a more positive outlook on HIV that could release the shame, secrecy, and fear people may have when they were first diagnosed.

I'm grateful to you for affording me the opportunity to speak on behalf of ASAAP and advocate for the people who continue to come back day after day to our office trusting us to represent them with dignity, care and grace.

I now pass on to you that same hope that in your deliberations about this issue you will acknowledge that the overuse of criminal law against people living with HIV has greatly impeded the progress we have made and will continue to strip those living with HIV of the very things that promote life, liberty, and health.

Thank you very much.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Professor Mykhalovskiy.

[Eric Mykhalovskiy, Professor, York University, As an Individual]

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.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We will go to Mr. Morrisseau-Beck from the Ontario Aboriginal HIV/AIDS Strategy.

[Duane Morrisseau-Beck, President and Chair, Ontario Aboriginal HIV/AIDS Strategy]

Good morning.

I'd first like to acknowledge the unceded, unsurrendered territory of the Algonquin people.

My name is Duane Morrisseau-Beck, and I am the President of the Ontario Aboriginal HIV/AIDS Strategy. I am an indigenous person living with HIV, commonly referred to as an IPHA, for the past 27 years. I want to declare that, pertaining to this intrusive approach to law, I am not an expert or a lawyer.

As an IPHA, similar to others like me, I have been on the front lines fighting this disease and other Canadian colonial violations against indigenous people since 1995. I understand the impacts of the law, both professionally and personally.

According to the Canadian Coalition to Reform HIV Criminalization, HIV criminalization, as defined in the “End Unjust HIV Criminalization” community consensus statement, is the unjust application of criminal law to people living with HIV based solely on their HIV status. This includes the use of HIV-specific criminal statutes and general criminal laws to prosecute people living with HIV for unintentional HIV transmission, possible or perceived HIV exposure, and/or non-disclosure of known HIV-positive status. HIV criminalization is a growing, global phenomenon that undermines both human rights and public policy, thereby weakening the HIV response.

Professor William Flanagan from Queen's University told committee members on April 9:

Criminalization erodes trust in voluntary approaches to HIV prevention and testing. It helps spread misinformation about the nature of HIV and its transmission. The overuse of criminal law compromises the ability of people living with HIV to engage in the care they need due to the fear that their HIV status and discussions with medical professionals may be used against them in criminal prosecutions.

Although we believe HIV criminalization impacts all genders among people living with HIV in the indigenous community, OAHAS would like to draw to the committee's attention the traumatic effects HIV criminalization has on HIV-positive women.

According to the 2017 national surveillance data, 31% of people with new HIV diagnoses were identified as aboriginal women. The 2016 national estimates were that 14,520 women with HIV and women aged 30 to 39 have the highest rates of HIV diagnoses. HIV estimates for women, since 2016, have increased from 23.4% up from 22.2%.

In Mr. Alexander McClelland's statement to the committee on April 9, he spoke about his doctoral research to examine experiences of people living with HIV across Canada who have been charged, prosecuted or threatened criminally in relation to alleged HIV non-disclosure. He discovered a wide range of experience and found that applying criminal law, specifically the law of sexual assault, causes greater harm, often exacerbating situations that are already marked by stigma, trauma, shame and discrimination.

It was also clearly stated to the committee on April 9, by Mr. Richard Elliott, the executive director of the Canadian HIV/AIDS Legal Network, that there is a “disproportionate impact of HIV criminalization on a number of different populations...among women who have been charged, indigenous women are disproportionately represented”. This is very alarming for OAHAS and the indigenous community.

The Public Health Agency of Canada estimates that between 5,100 and 8,000 women are living with HIV in Ontario. Indigenous women account for 4% of those newly diagnosed people. Transwomen are not described because there is no data collected on them, as noted in the 2015 briefing of the Ontario HIV Treatment Network.

Indigenous women are being diagnosed later, many at the AIDS stage. Aboriginal women are affected by HIV in ways that are unique to both their gender and cultural identities. Determinants rooted in the impacts of colonization have created entrenched poverty, social marginalization and unresolved trauma, which can increase their exposure to HIV/AIDS. For these reasons, aboriginal women’s position at the intersection of GBV and HIV/AIDS must be understood in the context of a colonized peoples.

We were optimistic to learn, in 2016, that Canada's former minister of justice and attorney general,Jody Wilson-Raybould, an indigenous woman, understood there was a problem with the over-criminalization of HIV non-disclosure and it further “stigmatizes those living with HIV or AIDS”.

In 2018 she issued a directive to the director of public prosecutions that applies only in Yukon, the Northwest Territories and Nunavut. Although the directive is viewed as a step in the right direction, this has caused some confusion in the indigenous HIV community in Ontario.

The historic relationship that indigenous people have with Canada is marred by human rights violations. These violations can be found in failed public policies like the Indian Act, residential schools and the policy of removing children which led to the sixties scoop. These failed public policies have caused overrepresentation of indigenous people in child welfare systems, jails, missing and murdered indigenous women and men, and in the high rates of chronic illness and infectious diseases observed among indigenous peoples.

As the only indigenous HIV organization in Ontario, OAHAS is implementing its five-year strategic plan, ending in 2024. One of our five goals is to provide information and supports to prevent the transmission of HIV and other STBBIs to indigenous people and indigenous communities. How are we to do this when criminalization undermines promotion and prevention work in the indigenous communities in Ontario? How will we meet UNAIDS' 90-90-90 targets or promote the U=U prevention campaign when we're dealing with an application of law that counters all our efforts as well as Canada's efforts? The outcomes of this overly broad application of criminal law are catastrophic and deter people from getting tested, accessing health care when tested positive or accessing antiretroviral treatment.

No other medical condition has been criminalized in the way HIV continues to be. If you don't tell your sexual partner you have HIV, you can be charged with aggravated assault and be registered as a sex offender. For members of the indigenous community who deal with daily stigma, trauma, shame and discrimination, this furthers the mistrust they already have for government's laws, policies and its institutions. The application of this law as it pertains to indigenous HIV-positive women should be viewed as a form of structural gender-based violence. Unwarranted criminalization has a devastating effect not only on those accused and convicted. It also has a highly detrimental effect on the broader HIV prevention and care initiatives. The unjustified application of criminal law is traumatic to HIV/AIDS-positive women and the HIV-positive community.

As a UN member state, Canada has pledged to promote social and legal environments supportive of and safe for voluntary disclosure of HIV, further to the 2016 political declaration on ending AIDS. The UN Committee on the Elimination of Discrimination against Women, UNAIDS and the Global Commission on HIV and the Law have also specifically recommended to Canada that it limit the scope of criminal law to those cases of actual intentional transmission of HIV.

In 2018, the Journal of the International AIDS Society, during the international AIDS conference, which I attended, announced an expert consensus statement on the science of HIV in the context of criminal law. That statement was endorsed by the International AIDS Society, the International Association of Providers of AIDS Care and UNAIDS, which are three leading global HIV scientific organizations. We want to thank the Canadian Coalition to Reform HIV Criminalization, which, along with partner organizations, is leading the charge on this important human rights issue.

Given that the election is happening in October of this year, it is OAHAS' recommendation that you work quickly with federal, provincial and territorial attorneys general to take the necessary steps within your respective areas of jurisdiction, and in consultation with people living with HIV, HIV organizations, service providers, women's rights advocates and science experts, to limit the unjust use of the criminal law against people living with HIV. OAHAS further recommends that any reform also remove the law from the realm of sexual assault.

In the 2015 mandate letter to the Minister of Justice and Attorney General of Canada, the Prime Minister wrote the following:

As Minister of Justice and Attorney General of Canada, your overarching goal will be to ensure our legislation meets the highest standards of equity, fairness and respect for the rule of law. I expect you to ensure that our initiatives respect the Constitution of Canada, court decisions, and are in keeping with our proudest legal traditions. You are expected to ensure that the rights of Canadians are protected, that our work demonstrates the greatest possible commitment to respecting the Charter of Rights and Freedoms, and that our government seeks to fulfill our policy goals with the least interference with the rights and privacy of Canadians as possible.

This statement generally articulates the true sentiments being expressed today. Canada's covenants to its citizens and people residing in Canada must be honoured. As section 35 rights holders of the Constitution Act, it is imperative that Canada end the unnecessary and intrusive attack on our communities and continue forging reconciliation, which will ensure the protection of IPHAs now and into the future.

Interference with the rights and privacy of Canadians should be a thing of the past. Please act in a manner that upholds our proudest legal traditions at the national and international levels.

Meegwetch.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

I would note, as we start our questions, that we seem to have lost Ms. Ongoiba for a moment. We'll be watching the screen to see when she comes back. Until then, please direct your questions to the other three members of the panel.

We'll start with Mr. Cooper.

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

Great. Thank you, Mr. Chair.

I'll direct my first question to you, Mr. Vijayanathan and Mr. Mykhalovskiy.

Both of you stated that in terms of criminal law reform, the predicate to be convicted of an offence of HIV non-disclosure would require two elements, namely, intention and actual transmission. How do you justify that, inasmuch as there could be an individual who engages in blameworthy conduct but doesn't actually transmit and gets off scot-free, and someone who actually transmits may spend time behind bars? How do you justify that?

[Haran Vijayanathan]

Just from working in the HIV sector for the last 19 years, I can say that a significant majority of our folks living with HIV don't want to transmit. In fact, when they find out their HIV diagnosis, they actually go backward. Very few individuals are intentional. I think in a court of law and through evidence gathering, you would be able to find out whether they were intentional or not.

I can tell you, again, through the individuals who come in, they are fearful of it and actually shy away. Relationships have ended as a result of their identifying it or it being found out that they were HIV-positive. They actually make the decision to say, “I'm not having sexual intercourse with you at all” for fear of transmitting the virus. When you are looking at a highly stigmatized issue of HIV and the practices of the majority, I think it would be very easy to prove intention in actual transmission in a court of law in Canada.

[Eric Mykhalovskiy]

I think the argument is not that criminal law should have no role in HIV non-disclosure but that it should be restricted to the most blameworthy of circumstances, which involve intentional and actual transmission. It needs to be guided by the best science we have available about the risks of transmission. If you look at what happened in terms of the pattern of cases that happened after Mabior, you would imagine that things would have gotten better, but the proportion of cases that involved no transmission increased. I think the direction needs to move in the other way.

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

Right, but I'm trying to understand situations where someone did not transmit but they engaged in very blameworthy conduct, whether it be a failure to comply with public health interventions, whether they took advantage of someone who was vulnerable deliberately, or whether they actively misrepresented their HIV status and they were not on antiretrovirals and it was not a situation where they were engaging in oral sex, three or four circumstances where the science is pretty clear that the likelihood of transmission is next to nil or very, very little. In both situations where there is a significant risk and the individual engages in blameworthy conduct but there isn't actual transmission, then how do you justify the fact that in those circumstances no criminal charges would be laid, but in another circumstance where an individual does the exactly same thing and there's actual transmission, they're up on a criminal charge? I'm just trying to understand the distinction.

[Eric Mykhalovskiy]

I can't answer that in a...since I'm not a lawyer; let's be clear about that. That's a question that is probably best answered by a legal scholar or legal counsel.

The position I would take is more as a sociologist in terms of looking at patterns and trends. When we do that, we see that the direction of prosecutions has proceeded in a way that is contrary to the guiding signs we have available about the risks of HIV transmission. In response to that, it is advisable to try to proceed in a direction that decreases the scope of use of criminal law and restricts it to circumstances that—

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

Sorry, but it's my time.

Where has the criminal law gone off the rails? Can you cite a few cases?

[Eric Mykhalovskiy]

In the HIV/AIDS Legal Network in Ontario, there have been 10 cases since Mabior where people faced criminal charges. Some were prosecuted when their viral load was undetectable and they had no risk of transmission.

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

Now, fortunately, we have the federal directive, which I support, by the way, which would clarify the law in that regard, so that's off the table now, right?

Ontario has it's own directive—

[Eric Mykhalovskiy]

No, it does not have its own directive. It has a policy statement that was made by the attorney general. The federal directive applies only to the territories. It doesn't apply to the jurisdictions.

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

You're quite right, but if we were to apply that directive, that would take that off the table.

[Eric Mykhalovskiy]

In answer to your question, there are a number of cases where people have been subject to criminal prosecutions and have been convicted when their viral load has been low and undetectable. My understanding from reading—

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

Let me just cite the case of Aziga, just so we're very clear. In that case, that individual had sex with 11 victims without telling any of them that he had HIV status. Two of the victims died in association with HIV infection. Another five were infected with the virus. The remaining four victims were placed at grave risk by exposure to the virus. That's what we're talking about.

[The Chair, Liberal, Anthony Housefather]

Thank you, Mr. Cooper.

Of course, in that case there was actual transmission, so they would be prosecuted.

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

They couldn't answer what the distinction was between actual and non-actual in the context of blameworthy conduct.

[The Chair, Liberal, Anthony Housefather]

I understand.

Perhaps other questions will now come up.

Ms. Khalid.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you, Chair.

Thank you, witnesses, for coming in today and for your testimony.

To get clarification on some of the questions that have been asked, I'll start with you, Mr. Mykhalovskiy.

It's not a very common thing for somebody to be intentionally spreading this virus. Is that correct?