Justice Committee on May 14th, 2019

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

Ms. Klinck, you stated that in terms of criminal law reform, similar to some other witnesses, the law should be reflect intent and actual transmission.

I'm still trying to understand those situations where someone who isn't on antiretrovirals, who is at a significant risk—let's put it that way—of transmitting HIV, doesn't disclose it, actively misrepresents, transmission doesn't occur, and no charges are laid, but someone who engages in exactly the same blameworthy contact is charged. Why should one person not be charged and another charged on the basis of transmission alone notwithstanding the very same blameworthy conduct?

[Jennifer Klinck]

I think the starting point in answering that question is to really ask ourselves why this isn't being considered as a public health issue first and foremost. Egale's position, which is entirely consistent with that of the community consensus statement, is based on the opinions of medical and legal experts and members of the community as to what will best comport with achieving the optimal health outcomes and with the general perspective that the use of the criminal law should be most exceptional in this circumstance, if at all.

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

So, you don't really have a problem where there is an active misrepresentation and a significant risk of transmission. That's okay?

[Jennifer Klinck]

I'm not sure that would be the position Egale would advance, but there's a distinction to be drawn between what should be the subject of criminal law and the types of criminal sanctions that should be imposed based on conduct that might be viewed as morally questionable. For that reason, we're relying on the extensive thought that's gone into the community consensus statement and the input from medical experts as to what is likely to lead to the best outcomes.

I do think that, when we take some extreme examples, there may be situations where what is intentional and what is reckless may coincide from the perspective of legal interpretation. There may also be room for further discussion on some of these marginal cases, but our view is that we support the community consensus statement on how to best approach the criminal dimension of HIV non-disclosure.

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

Mr. Ryan, do you have anything to say in response to that?

[Shannon Ryan]

We strongly endorse the consensus statement as well.

Speaking as a community person here, I'll say that misrepresentation is a funny thing in the context of sexual relationships. It can happen on many levels in many ways. We've all, perhaps, done it in our lives and in our relationships at some point. To frame HIV specifically and uniquely around this issue is perhaps a challenging thing to do; it's problematic.

Again, I want to say that we support the content of the consensus statement as well. We really need to consider the use of criminal law in, perhaps, only the most extreme cases when every other public health approach has been exhausted. Again, from our perspective at the organizational level, our best approach, our greatest success in getting folks to disclose, is to work closely with them in collaboration with public health teams and public health units before it advances to the level of criminality.

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

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

I've been advised that Ms. Salters is now on the phone.

Ms. Salters, can you hear me?

I guess I was not correct about that.

We will move to Mr. Boissonnault.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thanks very much, Mr. Chair.

Thank you to the witnesses who presented today.

I'll turn quickly to Egale and Ms. Klinck.

We heard from Dr. Tyndall from the BC Centre for Disease Control last week that it is entirely within the purview of the public health statutes across the country...that when somebody's engaging in reckless behaviour, there are all kinds of statutes that the public health authorities can use, from basically saying, “no more contact with people”, all the way to quarantine, and that applies to TB, to Ebola. Shouldn't we be using the public health authorities in the kind of case that Mr. Cooper raised?

[Jennifer Klinck]

That's a really good point. Public health regulations and statutes already create a framework for managing issues that are truly matters of public health, and they also provide opportunities for enforcement and some involvement of the state in telling people what to do. There is a real question as to why HIV non-disclosure receives this peculiar treatment as the subject of criminalization.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

You and I would agree, and I would go further and say “discriminatory”.

[Jennifer Klinck]

Yes.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Mr. Ryan, would you agree with my assertion that the public health authority has all kinds of authorities and parameters to contain somebody who's doing what Mr. Cooper said earlier?

[Shannon Ryan]

It absolutely does. There's no doubt about that.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you.

I have six minutes, so I'm going to go to rapid-fire questions between the two of you.

Mr. Ryan, how many people does your organization see on a daily basis, roughly?

[Shannon Ryan]

People living with HIV?

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

How many people?

[Shannon Ryan]

Probably 20 to 30.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

You see 20 to 30. So, you would see 100 to 150 in a week.

[Shannon Ryan]

Yes.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

What percentage of those people would say that the criminalization of HIV status prevents them from getting tested—a rough percentage?

[Shannon Ryan]

It's probably 100% for those who are aware of the criminal—

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

So, 100 to 150 visits times 50 weeks, would it be 5,000 people who are not getting tested right now because of the criminalized status of HIV, in your opinion?

[Shannon Ryan]

Yes, it absolutely deters people from testing.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you very much.

I have a question for both of you. I want to bounce back and forth.

Ms. Klinck, first of all, do you agree that criminalization of non-disclosure of HIV status prevents people from being tested?