Law Times

Law Times • apriL 23, 2018 Page 7 www.lawtimesnews.com COMMENT End legal stigma against people with HIV BY RYAN PECK F or those with access to treatment, HIV has transformed into a chronic medical condi- tion. However, in many other ways, Canada is stuck in the 1980s. Stigma and discrimi- nation against people living with HIV remains perva- sive across the country. There is no better example of stigma-ridden law and policy as Canada's approach to the criminalization of people living with HIV. Contrary to science, human rights, international standards and even recommendations from its own federal govern- ment, Canada remains a world leader, along with the United States and Russia, when it comes to prosecuting people with HIV. There have been at least 210 prosecu- tions, the overwhelming majority since 2004. Over half have taken place in Ontario, which makes the prov- ince a global hot spot for criminalizing people living with HIV. Alarmingly, since 2012, almost half of those charged in Canada are African/Caribbean/Black men, and there is deep concern that a trend is developing that sees the overrepresentation of Indigenous women. To make matters worse, the charge is almost always aggravated sexual assault, one of the most serious of- fences in Canada's Criminal Code, even though the sex that underlies the offence is consensual in nature. Moreover, people are charged when there is no allega- tion of transmission of HIV, no intention to transmit and in circumstances where the sexual activity in question poses negligible to zero risk of transmission. In short, people with HIV are significantly over- criminalized in Canada. In addition to horrendous miscarriages of justice faced by individuals, the cur- rent use of the criminal law is bad public policy. Al- ready vulnerable persons, such as those who do not have access to HIV medications or who are in abusive relationships, are at heightened risk of interaction with HIV criminalization. In particular, criminalization can have serious, adverse impacts on women living with HIV, especially those facing challenges due to socioeconomic status, discrimination, insecure im- migration status or abusive or dependent relation- ships. An overly broad use of the criminal law also puts women at increased risk of violence and prosecution by providing a tool of coercion or revenge for vindic- tive partners. The federal government itself recognizes the prob- lem. On World AIDS Day in December 2017, Justice Canada released "Criminal Justice System's Response to Non-Disclosure of HIV," which contains a number of important conclusions warranting a more limited application of the criminal law. In particular, the re- port explicitly recognizes that: (i) HIV is first and fore- most a public health matter; (ii) the use of the blunt instrument of the criminal law should be a matter of last resort; and (iii) the application of the criminal law to HIV non-disclosure is likely to disproportionately affect Indigenous, gay and Black people. The report also recognizes that it is problematic, in at least some circumstances, to use the law of sexual assault to deal with allegations of HIV non-disclosure. Justice Canada's report recommends, inter alia, that the criminal law should not apply to people who have a suppressed viral load and should gener- ally not apply to those who are not on treatment but use condoms or engage only in oral sex. On the same day that the federal government re- leased its report on the issue, Ontario finally took an initial step to bring the use of the criminal law in line with science and human rights in a manner that is supportive of HIV-related care, treatment and pre- vention. In a joint statement, the attorney general and minister of Health and Long-Term Care stated that they "believe strongly that HIV should be considered with a public health lens, rather than a criminal justice one, wherever possible." The statement further made it clear that "where an individual has a suppressed viral load for six months, Ontario's crown prosecutors will no longer be proceeding with criminal prosecutions." While this decision is welcome, we unequivocally take the position that this ref lects but one of the mini- mum points called for by many in the HIV commu- nity and beyond. As indicated for many years, and as ref lected in a recently released community con- sensus statement endorsed by more than 150 or- ganizations across Canada, criminal prosecutions should be removed from the reach of sexual as- sault laws and be limited to cases of actual, intentional transmission of HIV. In addition, HIV-related crimi- nal charges are not appropriate where a person living with HIV engaged in activities that, according to the best available scientific evidence, posed no significant risk of transmission, which include: (i) anal or vaginal sex without a condom while having a low viral load; (ii) oral sex; and (iii) anal or vaginal sex with a condom. We are deeply concerned that the province will con- tinue its overzealous approach by continuing to pros- ecute those who do not have a suppressed viral load, even in circumstances relating to sex with a condom or oral sex. Not only does this approach run counter to the federal recommendations and standards that have been recommended repeatedly, it would also (i) perpetuate stigma and discrimination against people living with HIV; (ii) ignore scientific evidence; (iii) continue unjust criminalization; and (iv) be bad public policy. Among other reforms, Ontario must immediately cease prosecutions in relation to oral sex and sex with a condom. In addition, historic convictions must be reviewed. After many years of work on this issue, we are hopeful that, through meaningful engagement with the HIV community, Ontario will cease to be one of the world's worst offenders in unjustly prosecuting people with HIV. Instead, it is our fervent hope that Ontario will lead the way to arrive at a place, as en- visioned in the provincial HIV/AIDS strategy, where new HIV infections are rare and people living with HIV will lead long, healthy lives, free from stigma and discrimination. LT uRyan Peck is executive director of HIV & AIDS Legal Clinic Ontario, co-chairman of the Ontario Working Group on Criminal Law and HIV Exposure, member of the Ontario Advisory Committee on HIV/AIDS and the recipient of the 2016 Legal Aid Ontario Sidney B. Linden Award. u SPEAKER'S CORNER Surveillance cannot protect from violence BY FATHIMA CADER A t Alexandre Bissonnette's April 11, 2018 sentencing hearing, the court played surveillance foot- age of Bissonnette's Jan. 29, 2017 attack on worshippers at the Quebec City Islamic Cultural Centre. Even if I wanted to watch it, I can't. The Quebec Superior Court ordered the video's viewing limited to that particular hearing. Videos of the killings of racialized peo- ple abound, some shrouded in secrecy, oth- ers broadcast widely on social media. Consider Soleiman Faqiri. Diagnosed with schizophrenia, he was arrested on Dec. 4, 2016 for charges later dropped. Set to be moved to a mental health facil- ity, Faqiri died at the Central East Correc- tional Centre in Lindsay on Dec. 15, a little more than a week after his arrest. The July 2017 coroner's report on his death was based in part on surveillance footage. The report describes prison guards pepper-spraying Faqiri and beating him after he refused to get out of the show- er. Guards forced a spit hood, leg shackles and handcuffs on him before returning him to segregation, upon which 10 to 20 guards entered his cell. The video evidence ends here. The po- lice have not explained why they have re- fused to release further footage to Faqiri's bereaved. In November 2017, the Kawartha Lakes Police Service announced that it had found no grounds for criminal charges against prison staff in Faqiri's death, nor has it announced any dis- ciplinary measures. The coro- ner's report describes lacera- tions across Faqiri's forehead and more than 50 cuts, bruises and other injuries across his body. The official cause of his death was "unascertained" and the province has called an inquest into his death. There is Abdirahman Abdi. After Abdi's June 2016 death, the Special Investiga- tions Unit charged Ottawa Police Service Const. Daniel Montsion with manslaugh- ter in March 2017. Like Faqiri, Abdi had a mental illness. Unlike Faqiri, Abdi's death is widely viewable. The police altercation with Abdi occurred in public, mere steps from Abdi's home. Cellphone footage of Abdi's dying moments are easy to find on YouTube, if difficult to watch. Perhaps the differing levels of public access to video evidence contributed to the different investigatory outcomes in these cases. This would ref lect the Ontario Court of Appeal's remarks in R. v. Cana- dian Broadcasting Corporation, 2010 ONCA 726, where it stated at paragraph 24 that "the open court principle" embraces, among other things, "the rights of listen- ers to receive the information [about court proceedings]." The court there allowed CBC to view and copy footage of the teen- ager Ashley Smith's 2007 death in custody at the Grand Valley Institution for Women. CBC went on to produce documentaries about Smith's life and death that have become valuable tools in the growing campaign to end solitary con- finement Nevertheless, justice is a slow-moving beast. Even where access to footage is relatively quick, trials are rarely such. Toronto Police Service Const. James Forcillo was not sentenced until three years after he killed Sammy Yatim, who died in full view of several cameras. For lawyers, this may sound fast, but for a grieving family, each day is an eternity. Nor can incarceration guarantee closure or re- habilitation. There are other reasons to be cautious about normalizing video surveillance as a tool of progressive change. There is the myth of deterrence. The guards who came into contact with Faqiri in the prison shower did so knowing secu- rity cameras were rolling. The constable who came into contact with Abdi in the streets did so in full view of passerby cell- phone cameras. When Bissonnette com- menced his murderous rampage, he did so undeterred by the mosque's security cameras. These killings did not emerge out of a vacuum. Cameras cannot pre-emptively protect people who are racialized and/ or mentally ill, because cameras are not shields, literally or figuratively, against dis- crimination. The dead are owed dignity — particu- larly when it was denied them in life. Racialized people are already dispro- portionately watched — from Muslims in airports to Black people in coffee shops. Surveilled so insistently in life, surely we are entitled to some privacy in death. On the other hand, the footage of Bis- sonnette's mass murder simultaneously provides a bitter view into staggering beauty and love. The video of Azzeddine Soufiane's last moments are of him run- ning straight at Bissonnette to disarm him. Bissonnette pushes the 57-year-old back, who falls. He lies prone, while Bissonnette shoots him, over and over again. Mohamed Belkadhir, hearing there was a shooting underway at the mosque, runs to it. In the January cold, he puts his coat over men who were already dying. The po- lice subsequently arrest Belkadhir. Aymen Derbali, who also intentionally drew fire, is now paralyzed. After the sentencing hearing, he said, "Unlike many others, I'm able to bear wit- ness." May we all bear witness — with or without the debatable aid of the graphic or the voyeuristic. LT uFathima Cader practises public interest, human rights and labour law in Toronto. She can be reached at cader@caderlaw.ca. Law Rebooted Fathima Cader

• Cover