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.