Justice Committee on May 14th, 2019

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Ms. Klinck.

[Jennifer Klinck]

Yes.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Let me ask you this question. If we could say that lying about status were considered a reckless act, and that was combined with actual transmission, could that kind of scenario be where the criminal law could step in?

Ms. Klinck.

[Jennifer Klinck]

I'm not prepared to take a position on that without—

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

It's okay.

[Jennifer Klinck]

—further engagement with the community, because I know that the consensus is around intent.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Yes.

This is where—and I'm going to get to you, Mr. Ryan—intent is a challenging area in the law, right? We get into issues of morality when we start to use things of intent.

What we're trying to do is isolate the difference between reckless behaviour, which we have provisions for.... Mr. Virani mentioned vitiating consent through fraud.

Intent gets us into issues of, “Oh, you bad person. You have HIV+. You lied. You intended to transmit.” There are a whole lot of value judgements in there that are very tough to prove in law, so what we need to do on our side is understand the definitions around reckless behaviour.

I'll tell you my personal opinion. I think reckless behaviour plus transmission should be the standard. It's a high standard, and it would be a high standard to prove.

Mr. Ryan, do you have any thoughts on those two combinations?

[Shannon Ryan]

I'd say two things. Reckless behaviour that's demonstrated to be repeated and intentional after all other public health approaches have been exhausted seems like an appropriate approach.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Ah, thank you.

[Shannon Ryan]

I would also say that I've worked with hundreds of black people who are living with HIV over my career at Black CAP, and one of the biggest concerns of the folks who I've worked with is transmission to a negative partner. Folks living with HIV are often framed as reckless and determined to negatively impact public health. I would say that is absolutely the farthest thing from the truth. People stress about the possibility of transmitting to a negative partner and are highly concerned about the health of their partners, as well.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you. I have to pause you there; I have 15 seconds.

Ms. Klinck, would a federal-provincial-territorial meeting of the justice ministers to talk about the directive being applied in more provinces help, in your opinion?

[Jennifer Klinck]

Yes, absolutely.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We're going to try one more time to see if Ms. Salters is now available by phone.

Ms. Salters, can you hear me?

Okay, we'd been told that she was there, but I guess not.

We're moving to Mr. Garrison.

Mr. Garrison.

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

Thank you very much, Mr. Chair. After Mr. Boissonnault's rapid-fire questions, I think we all need to take a deep breath.

I do want to say that I know the justice committee has to look at extreme cases, but I don't think this is the point in our deliberations where we should be looking at the extreme cases. What we're trying to do, I believe at this point, is give some shape to what the reform is going to look like and how the reform might proceed. I think that there is an inadvertent danger in focusing on those marginal cases, that we actually contribute to the stigmatization and marginalization again.

As I've said before, I'm a gay man of a certain age, and I've lived all my life with gay men who are trying to do evil in society, and it is particularly true, I think, in the black community as well.

Towards the end of your presentation, Ms. Klinck—

[Kate Salters, Research Scientist, British Columbia Centre for Excellence in HIV/AIDS]

Can you hear me?

[The Chair, Liberal, Anthony Housefather]

Ms. Salters, Mr. Garrison is in the middle of a question round right now. We're going to come back to you in about five minutes, if we're able to hear you properly.

Mr. Garrison.

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

Thanks very much.

Ms. Klinck, toward the end of your presentation, I believe you talked about the criminalization of sex work and the criminalization of possession of drugs for personal use.

Can you come back to that and maybe spend a bit more time on the connection you see between that and the criminalization of non-disclosure?

[Jennifer Klinck]

The important point here is that social determinants of health are often interrelated. One of the points we have tried to draw attention to is the failure to take into account the experiences of particularly transwomen in work on HIV. We also want to point out that for members of the LGBTQ2SI community who may also be sex workers, or who may also be injection drug users, the criminalization of that behaviour as well tends to contribute to their social exclusion, marginalization and difficulty accessing health care.

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

Mr. Ryan, would you like to comment on that same issue of the relationship between criminalization of sex work and injection drug use? I know you work on prevention of HIV AIDS, so can we hear from you on that topic?

[Shannon Ryan]

I really concur with the other witness on this issue. I don't know that I could say too much more than that.

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

Sorry, did you say that you do concur?

[Shannon Ryan]

Yes.

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

Okay.

Again, toward the end of Mr. Boissonnault's question, he talked about a federal-provincial meeting and asked for just a very rapid answer to that.

Ms. Klinck, with the limited nature of the current directive, we now are in a situation where people may be treated quite differently depending on where they live in the country. Can you comment on that and how a federal-provincial meeting might address that?

[Jennifer Klinck]

Yes. It's absolutely a concern that the directive as it now stands only applies in the three territories. In fact, that may create the risk that people misunderstand the degree to which they are at a threat of criminalization.

Increasing co-operation with the provinces to extend the application of the directive, which is imperfect for sure and needs to go further, but as an immediate measure, trying to have that actually apply in a more coherent fashion across the country is an important immediate step.

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

What would you envision as an outcome of that meeting? Could it be something such as a statement or a directive in all the provinces that said, until there's reform, prosecutions should focus only on intent in transmission? Is that what we're seeing as an outcome?