 So wait a few seconds here before, just in case anyone's entering the room. So welcome everyone. Today's event is called the background on the criminalization of HIV in Canada. My name is Sierra Mateo. I am a 3L student at the Schulitz School of Law and the current co-chair of the Dalhousie Criminal Law Students Association. Today's event was put together by the Criminal Justice Coalition and the DCLSA, the Student Association. Before we get started, I just wanted to acknowledge that Dalhousie University is located in Nagmahi, the ancestral and unceded territory of the Nagmah. Here today and every day here all treaty people. So unfortunately, Megan Longley, our third panelist today, could no longer join us, but we're still very, very happy to be joined by both Richard Elliott and Alexander McClellan today. So as you saw from our promotional material, Richard served as executive director of the HIV legal network from 2007 to 2021. And his current work is as a consultant focusing his efforts on HIV, health and human rights. Alex, as well as a professor at Carleton University, and he had the exciting opportunity to present his research findings on the criminalization of HIV non-disclosure as an expert witness to the House of Commons, the Standing Committee on Justice and Human Rights. So thank you both so much for joining us. It's unfortunate that Megan couldn't be here, but we do this for the best today. So for anyone joining us in the audience. If you have a question that comes up during the event, please feel free just to put it in the chat at the bottom of your screen there. I will be monitoring the questions and then close it to the end. I will be just posing those questions to the group. So that's it for me. I will hand it over to the experts now. Thanks, Sierra. I think I'm going to kick things off. Thanks very much for the invitation and I'm glad that Alex could join this discussion as well, because he's done some of the groundbreaking research in Canada on the harms of HIV criminalization to people living with HIV, along with a lot of other stuff so it'll be really important to hear that in our discussion. I'm glad that I would kick things off with a bit of an overview about the state of the law related to HIV criminalization in Canada. And then also speak a little bit about some of the advocacy efforts to date to address the state of the law which gives rise to a number of concerns. So I want to speak to both of those in that order. So for those who are not familiar with the issue, just to let you know that since the first recorded prosecution in Canada for alleged HIV non disclosure to a sexual partner. And that's mostly what we're talking about in Canada when we're talking about HIV criminalization. But it's not entirely. There have been to our knowledge 224 prosecutions to date. There have been to be amongst the world leaders in the number and I put that term in quotes in terms of prosecuting people with HIV edged non disclosure. Unfortunately the situation we have learned in a number of other countries has actually gotten worse. And that is the reason that Canada is no longer in the top five, but it's hardly a group in which we want to be. There's a lot of information about the details of those prosecutions and some of the trends and patterns, including demographics in a document that I'll share a link to later in the chat that the legal network has produced. But it's a significant resort to the use of the criminal law. And I think it's worth also noting that while the law I'm about to outline in theory applies to other sexually transmitted infections or at least some of them. There have been a few cases in relation to some other sexually transmitted infections, the overwhelming majority of the cases of the use of the criminal law to deal with these allegations of not disclosing a sexually transmitted infection have been in relation to people HIV for alleged HIV non disclosure. Now there is no specific offense in our criminal code that deals with not disclosing or transmitting HIV or another sexually transmitted infection to a sexual partner, or possibly other sexual charges. And so the way the law has evolved has been through the decisions of first prosecutors, and then subsequently courts in deciding to lay charges, and then in the interpreting and application of those charges, under other offenses that are already found in the criminal code so offenses of general application offenses such as common nuisance administering a noxious thing. There was no negligence causing bodily harm or causing death depending on the circumstances that are alleged, and most, particularly, especially since the late 90s charges of assault or particular sexual assault. And specifically, most often the charge of aggravated sexual assault with serious form of sexual assault, as people will know, in the criminal code. There is a lot of throwing different things at the wall and seeing what would stick by prosecutors and courts and conflicting outcomes in the first decade or so of resort to using criminal charges in cases where people are accused of not having disclosed their status to a sexual partner. In most of those cases I should note there was no transmission or no allegation of actual transmission the majority of cases in which people have been prosecuted have not involved actual transmission they've involved allegations of exposing a partner to a risk of acquiring HIV that is perceived by prosecutors and police and the courts to be too high in their view. So that's one important thing to remember. But since the late 90s, as I mentioned, the main charge that has been laid against people has been the charge of aggravated sexual assault. And that follows a decision of the Supreme Court of Canada in a case called Courier, which was the first case on this subject, and it established the basic legal framework that has since been applied in the vast majority of cases. And the gist of the decision was that the Supreme Court said in a split decision that in some circumstances, not disclosing HIV or another sexually transmitted infection, could amount to fraud that would vitiates a sexual partner's consent to sex and as people will perhaps know, under section 265 of the criminal code consent can be rendered invalid in law consent to sexual activity can be rendered invalid in law in a variety of ways and fraud is one of those. So the Supreme Court affirmed that in some cases, not in every case but in some cases, not disclosing that you have HIV to a sexual partner would amount to such a fraud. Therefore, what was otherwise a consensual sexual encounter in law a sexual assault. I've also said without much consideration of this that it would meet the requirements for the offensive aggravated sexual assault because there would be in its view endangerment of life and that's one of the ways in which sexual assault or an assault is elevated to an aggravated status. The court was clear in that case that there was not a blanket obligation to disclose that was a central point in the case, but rather they said that the duty to disclose will arise when there is a significant risk of serious bodily harm that's the key phrase from the courier decision that's the threshold. Excuse me, a majority of the court in that case, and this is relevant for how things evolved later, said that something like condom use may, or in the case of a minority concurring judgment on the part of some judges including now Chief Justice Beverly McLaughlin would in fact prevent from being a vacant risk of transmission and so in that circumstance, according to the majority you may not have a duty disclose according to one of the concurring minority judgments you would not have a duty disclose. And so, so there was a clear recognition from the beginning that there was a need to not cast the net of criminalization too widely that mere non disclosure should not in and of itself be a criminal offense there had to be a certain level of risk and a certain potential harm associated with that risk in order to trigger the application of the criminal law. So fast forward from there to another key case in this area from the Supreme Court of Canada in 2014 decision called maybe or in that case the Supreme Court of Canada affirmed the basic legal framework that they had set out in courier and went on to clarify in their words that this significant risk of serious bodily harm would in the specific case of HIV be met if there was a quote real list ability of transmitting HIV so that is the key HIV specific updated formulation of the legal test, if you will. So, and they did that because there have been a lot of criticism about how the courier test had been interpreted and applied by lower courts and by prosecutors there have been a lot of uncertainty. And there have been importantly developments in the scientific knowledge about HIV, including factors associated with possibility of transmission or not, including for example, significant new developments in the evidence base about the relationship between the viral load that someone has and the possibility of transmitting through sexual activity to a sexual partner. And so there was a need a scene on the part of the court to revisit to some degree what the phrase the law should be but they affirmed the basic legal framework and recast the significant risk of serious bodily harm test in the HIV context as a realistic possibility of HIV transmission test so that's the key phrase for HIV. Keep in mind that the overall framework is still, if there is a significant risk of serious bodily harm then a duty to disclose would arise, and that could apply not just to HIV but potentially to certain other sexually transmitted infections. I note that because it's relevant of course to some of the ongoing advocacy that is currently underway. Now, one of the significant problems and there are others that we can speak about is how this test this legal test has actually been interpreted and applied by police by prosecutors and by courts who have these cases brought before them to adjudicate, and are required to apply the legal test, at least the lower courts are required to apply the legal test that the Supreme Court of Canada has articulated. And what we were seeing that the interpretation and the application of the criminal law and this particular test has been very, very broad. And that's given rise to obviously a whole bunch of concerns. There are some inherent harms in turning to the criminal law to deal with HIV transmission or exposure. But of course those harms are magnified the broader you cast the net, right. And the net has been cast quite widely in Canadian law, unfortunately. And I'll explain what I mean about that in a moment. But this has led to some ongoing concern and advocacy by community organizations, importantly by people living with HIV, but also from scientific experts who have increasingly over the years in various jurisdictions including Canada, have spoken out and said that we have real concerns about how the criminal legal system in many cases is not actually being informed by the science that we have and over extending the ambit of the criminal law, at least from the perspective of the science that we have about HIV. There are indeed important other important reasons to be concerned about the overextension of the criminal law. That is an important one that it is not in touch with the best available scientific consensus. In Canada at the moment where we now stand is that it is reasonably settled. As a result of a number of different court decisions in different jurisdictions, and the adoption in some jurisdictions in Canada of prosecutorial policy that is pretty unlikely. You would be prosecuted and highly unlikely that you would be convicted for allegedly not disclosing your HIV positive status to a sexual partner. If at the time of that sexual encounter, you had a suppressed or an undetectable viral that seems to have been finally accepted by prosecutors for the most part and courts. As a situation in which there is no realistic possibility of transmitting HIV to a sexual partner, and that's very solidly based in the science and there's well established scientific consensus on this point that someone who has a suppressed viral load does not transmit HIV sexually. And so the significant possibility of the realistic possibility of transmission test would not be met in that case, and that's been accepted. It has also been accepted, including by the Supreme Court of Canada that if someone has not a suppressed viral load, which is normally defined as being under 200 copies of HIV per milliliter of blood, but rather a low viral load so viral load that is somewhat higher than suppressed, but still low. The person or their partner, depending on who's wearing it uses a condom for penetrative sex of the anal or vaginal sex. In that circumstance, there would be no realistic possibility of HIV being transmitted and therefore no duty to disclose and therefore you haven't committed a fraud if you do not disclose and therefore you have admitted the offense of aggravated sexual assault. Beyond that things are actually murkier. And actually, there are some recent troubling signs. So, situation where someone uses a condom, for example, but does not disclose their status to a sexual partner. Unfortunately, we had hoped would be recognized by the courts as a situation in which there isn't a realistic possibility of transmission for the purposes of triggering criminal sanctions, and therefore someone would not be convicted if they did not disclose their status to a sexual partner. Unfortunately, although we had some incurring, we had at least one encouraging decision from Nova Scotia, a trial court decision, a couple of years ago, and a suggestion from the Supreme Court of Canada in its first case on this in 1998 the courier case that that condom use might or would be sufficient to reduce the risk enough that there'd be no longer a duty to disclose. That in fact is not where the law has currently settled at this point and it remains unsettled. And most worryingly, just a couple of years ago the Ontario Court of Appeal in the first appellate court decision to address this point, since short of the Supreme Court of Canada. We expressly affirmed that no using a condom is not sufficient on its own in a case in which there was no dispute that a condom had been used by the accused person. There was no allegation by the crown that the condom had not been used properly or broken. And there was no allegation that the accused person had actually transmitted HIV to their sexual partner. And yet the Ontario Court of Appeal in a rather, I would say inflexible and rigid of the framework as articulated by the Supreme Court said, no, we think this is sufficient to actually uphold a conviction for aggravated assault. Keep in mind these were consensual sexual encounters, but for the allegation of not disclosing your HIV status, and there was condom use and no allegation of transmission. And what we know from decades of experience and the scientific consensus is that in that circumstance, the risk of HIV transmission would be negligible at most and we're talking exceedingly exceedingly small like infinitesimal or zero. So, and yet the Ontario Court of Appeal thought that this was an appropriate case in which to actually convict someone for non disclosure and so that person, you know, is spending years in prison for aggravated sexual assault. With respect to the question of oral sex. Again, we had some encouraging decisions along the way, not very many, including again, a decision from a trial court in Nova Scotia, suggesting that in that circumstance, there was a sufficient risk of HIV transmission and so there was no crime and not disclosing your status. Again, the Ontario Court of Appeal, unfortunately in a more recent decision, just earlier this year has again disappointed the hopes of activists who had hoped that we might at least reign in the criminal law on this front, and has in fact gone out of its way to say, oral sex alone without disclosure could in the right circumstances be a sufficient basis for convicting someone for allegedly not disclosing. Even though, again, the scientific consensus is that the risk of transmission in that circumstance is effectively zero. It's so close to zero as to be effectively zero. Absent some very exceptional circumstances. So, this is what I this is what I'm referring to or these examples what I'm referring to when I say the criminal the courts have cast the net of criminalization really really widely here. And the more they do that the more they give rise to the harms of criminalization, because the less you actually tie criminalization to harm or a serious risk of harm, the more you're actually criminalizing people just for being HIV positive and not disclosing that fact. So this gives rise to one of the many concerns about HIV criminalization. And we can talk about what some of the others are and I know Alex is going to touch upon some of those as well. So, there's been a lot of advocacy, I'll just say a couple of words about what that advocacy is involved and where it's gotten us to and where things stand now in terms of trying to change the scope of the law. In a number of these court cases that have arisen. There have been community organizations like the one I used to head and still do work with to support accused persons and their defense lawyers in making sure that they are equipped with good arguments with the best available as well as connections to experts whose testimony is going to be really key, given that so much of the scope of criminal liability depends on how this test of realist ability of transmission is going to be interpreted which requires resort obviously to scientific evidence. And in effect, although as I've just outlined the results have been decidedly mixed you know there have, there have been the sort of rhetorical recognitions that well there shouldn't be a blanket obligation to disclose, even though a number of provincial attorneys general over the years have gone to court arguing precisely that those have been rebuffed. In terms of actually limiting the scope of criminalization in a real meaningful way. Really the major success has been in getting courts to recognize the science of undetectable equals untransmittable so someone who has an undetectable or suppress viral load does not transmit HIV sexually therefore this threshold for triggering criminal liability is not met. That's been mostly it. There has also been an effort to get policy updated in a number of jurisdictions across Canada policy to which prosecutors are supposed to have been deciding in any given case, whether to actually proceed with a prosecution. This also has been important, and there's been some success but again it's been the results have been mixed. Three jurisdictions in Canada now have formal policy in place. The most significant and furthest reaching one is at the federal level, a directive that the federal Attorney General issued to the public prosecution service of Canada in 2018. Which they said there shall be no prosecutions in those places where prosecutors federal prosecutors handle them for in the case where someone has a suppressed or an undetectable viral load full stop. That's good. It's really just recognizing what the science already tells us. There's been a statement in the directive that that there should generally be no prosecutions in cases where someone has used a condom for example, or someone is on anti retro viral treatment, which would then lower their viral load, or only engaged in oral sex absent exceptional circumstances. So that's good, but it's not really a sort of a categorical ruling out of criminal prosecutions in those circumstances which is what would be preferable amongst other limits. In BC and Ontario, there is also policy in place from their prosecuting authorities. That is goes at least as far as saying someone with a suppressed viral load will not be prosecuted for not disclosing, but that's pretty much all that you can say definitively about their policies. The policy does suggest that the fact that someone uses a condom may be a factor to be considered by the prosecution in determining whether it's in the public interest in a given case to pursue a prosecution. That's obviously one of the key two key tests that a prosecutor has to consider in each case, but that's about as far as it goes and so people living with HIV are left in this still murky legal terrain with the threat of criminalization hanging. Through those different avenues we've achieved as advocates, some successes, but they are limited and it's become increasingly clear, especially with the two recent Ontario Court of Appeal decisions that I mentioned about condoms and about oral sex, that it is likely that the courts and prosecutors are able or willing to get us out of the mess into which the years of accretion of prosecutorial and court decisions, including from the Supreme Court have gotten us. And therefore, if we really want to get to the root of this problem here, we need to actually change the underlying law. The courts have interpreted things in the criminal code in certain ways and to find some parameters far too broadly in the view of those of us were concerned about this. And so it is now up to Parliament as part of the ongoing dialogue between Parliament and the courts to actually step in and remedy this and reform the law. And so there has been a coalition for a number of years called the Canadian to reform HIV criminalization, of which Alex is the chair of the steering committee and he can say more about that in a moment. And of which the HIV legal network is a member that has been advocating for reform to the criminal code. And earlier, I was going to say earlier this year but last year a few months ago. The government of Canada, the federal justice minister announced consultations about possible criminal code reform and the coalition and others have been participating in that consultation and making our recommendations about what changes might be needed to the code to actually limit the criminal law to a much more appropriate and very limited set of circumstances. The gist of which is to prevent the end of the use of sexual assault charges as an inappropriate tool for criminalizing HIV known disclosure in for a whole bunch of reasons, and to limit any use of any criminal provisions to cases where there is action commission of HIV, and there has been transmission with there's been action with the purpose of transmitting HIV. So to set the bar much, much higher, and that would capture only a very few and quite rare set of circumstances. That's where things stand at the moment and we will see if 2023 brings any sort of efforts to actually introduce amendments to the criminal code. And I hope that gives you a sort of summary if somewhat whirlwind overview of the state of law and policy in Canada and some of the current advocacy, and happy to expand on any of those points in the comments to follow but I should turn it over now to Alex to fill in more of the picture. Thanks. Thank you, Richard. And I just wanted to highlight. Yes, I did present my research at the House of Commons Standing Committee on Justice and Human Rights, alongside Richard, and many other amazing people who were part of the Canadian College to reform HIV and if you're interested to see our testimony you can see it all here on the multiple days, but there was over 30 witnesses who presented and helped inform that process. I'll say upfront, I am not a lawyer, I am a activist and criminologist. I come at this work from a different perspective, and I always value deeply being able to present alongside Richard and other lawyers that I work with to provide the technical expertise and the legal legal expertise needed. I am going to be presenting briefly on my doctoral research and I'll just present a link here to a booklet that I've made that provides outcomes of it for those of you that are interested in in it and want to know more. I think Richard really just gave us a really excellent overview of what the picture looks like. Legally and my work has tried to kind of understand how those laws are embodied by people and how what law means on the ground for those that impacts, and what are the actual impacts. For many years we have known that HIV criminalization has deterred people from testing for HIV testing, accessing counseling and support has created a chill in relation to people living with HIV accessing services but also other people from getting HIV testing. We haven't really known or we hadn't known previously to some of the work that I've done. What are the impacts on people who've actually been charged and what are the experiences of people who have been prosecuted in relation to this and so I went across the country and interviewed 18 different people who have experienced either were threatened with charges because we know in a context of ongoing intimate partner violence and just disproportionate power relationships between men and women and relationships that HIV criminalization or the specter of HIV criminalization can be brought forward in those relationships and used as a coercive means against women and threaten to threaten them with potential criminalization so I interviewed a number of women in those circumstances, but also talked to people who had been either charged with aggravated sexual assault charges in the context of an ongoing criminal trial or had served their time and were prosecuted and subsequently registered as sex offenders. And so I spoke to them about the law and their experiences being criminalized from their own perspectives so often they had different understandings of what happened to them than the specifics of the law itself. And so they were just have an embodied understanding of what happened to them and talk to them about their lived experiences. I kind of often know that, or often noted that, you know, though, we don't get to hear the voices and experiences of criminalized people that often, specifically people living with HIV and anyone else criminalized the criminal justice system produces a dichotomous narrative of either victim or perpetrator. And perpetrators don't usually or people who are framed as perpetrators don't usually get to tell their side of the story they lose a sense of autonomy and subjectivity and being able to speak for themselves. And in the context of HIV criminalization, all of this people I spoke with did not understand themselves in that way, and felt very confused by the charge of aggravated sexual assault where they were framed as a potentially a violent rapist who was trying to infect someone else with HIV and nothing could be further from the truth. All of the people I spoke to specifically had been doing things to try and protect their partners had been taking antiretroviral medications had been following drugs from their doctors to take their medication. And also, if that wasn't possible, based some women I know who I interviewed would, in the context of power differentials and relationships, would try and assert the use of a condom as a way of disclosing their status or trying to protect their partner. But we know, you know, I mean, I don't know I'm a gay man but in the context of a straight relationship. If a woman is the one who not doesn't get to decide to use the condom and that's the kind of horrific outcome of the 2012 decision is it privileges the person who can use the condom. And if a woman doesn't end up using the condom, because her partner doesn't use it. She's charged with aggravated sexual assault and she could be end up on the sex offender registry and I interviewed one of women who that happened to. She tried to give her partner a condom. He didn't use it. She's the one who's on the sex offender registry now. And that's the horrific outcome of that decision. There are many different impacts on people's lives as a result of HIV criminalization, and the experience of being criminalized and I think one of the ones that we has really come to light in the discussion of speaking to people directly about their experiences is the impact of being on the sex offender registry, and the impact of being prosecuted with a sex offense and so one of the, one of the charge that would be known as a dirty charge in prison. So that was quite horrific for people in many aspects of their lives so first of all their privacy would be violated in the media. There's often sensationalistic media coverage of people's stories because these stories bring up all this, all this, these past issues about sex and fear of the other. Often it's racialized men black men in the media who are have had sex with white women. And although those that number of people makes up less overall in terms of the number of cases, but they make up more of the media and some more of the media publications on that on that issue. But there's sensationalistic media people have access, lose access to privacy immediately. And so often they're framed right away in the media as violent perpetrators. As a result of that they'll lose access to all aspects of their social and civil life, often experiencing stigma and violence in their daily life if they're out on bail. People know in their neighborhoods that they are have HIV that they're charged with these charges and can end up facing forms of violence and stigma and discrimination in their communities. And they are incarcerated if that does happen the people I spoke to, often have their privacy again violated inside because their HIV positive. And people will endure why they're on medication and we'll find out that they're charged with being framed as a violent rapist even though all of the people I spoke to understood that they had had consensual consensual sex with their partners. On both sides of two women that I spoke to who had actually been assaulted by their partners, and, and they were living with HIV their partners weren't living with HIV. And as a consequence of them not disclosing their HIV status to their partner they were charged with aggravated sexual assault and they ended up on the sex offender registry. And there's a really disproportionate impact and vulnerability created because of criminalization for women living with HIV, quite a high portion of the women living with HIV or criminalized our indigenous women living with HIV, who have been subject to ongoing sexual violence throughout their lives, and consequently get framed as violent perpetrators in the context of HIV non disclosure. And I think Richard brought this up in terms of like knowledge of HIV and what's kind of what's, what's working within courts in terms of moving things forward and updated scientific understandings of HIV and the scientific consensus around transmission and undetectability equaling non transmission is something that's being brought forward quite widely but in the context of HIV criminalization. So the people I spoke to all of the people who were tasked with criminalizing them, police courts judges, sometimes even their lawyers had very limited information about HIV at all, or the risks involved and as a result, people were coached to coach to plead guilty. In cases where they are there was evidence that they should not apply guilty at all but it was just like a full on panic around HIV, and total lack of knowledge and that's why the work that the HIV legal networks been doing and the leading work that Richard's been doing around educating lawyers has been really really helpful so that we can get people not to plead guilty and to fight back on these cases. A further consequence of criminalization and a kind of just an outcome in general of the Canadian prison system is people face horrific violence inside as a result of their charges. Being incarcerated in Canada, anyone who's incarcerated is vulnerable to violence those institutions are extremely violent and, and people are very vulnerable in that circumstance, but in the context context of being charged with aggravated sexual violence, having HIV the people I spoke with faced intensified forms of violence, often ending up in protective custody which is essentially, or administrative segregation which is essentially solitary confinement. And a couple of other things I guess, a couple of many of the people I interviewed or actually all of the people I interviewed I should say, had a challenge in terms of accessing justice, and being able to pay for and get expertise. When they did get expertise to through the legal network and stuff like that their cases ended up ending up more in a beneficial outcome but people had limited access to, to justice really hard time getting access to the means to support themselves and represent themselves in court. One of the people I spoke to as a result of being criminalized had long periods of suicidal ideation and many who actually tried to kill themselves, many living today with post traumatic stress disorder and forms of anxiety and depression as a result of going through the criminal system and being framed in this way. A number of the people. A number of the people around the sex offender registry had to go through sex offender treatment programs where they had to sit in circles with other people who are on the sex offender registry who are charged with violent rapes of children and so on, and they had to undergo phallometric testing witnessing horrific videos of people being assaulted to see whether they were turned on by that. And they also had to then describe themselves their sexual desires as pathological and shameful and a problem when they were actually just normal adult sexual desires the only thing that happened was that they had HIV, but the fact that they were put in those treatment programs they had to follow the logic of the program. People were told by the psychologist running those programs that they didn't fit the criteria to be in those programs but to meet the standards of the correction service Canada to have their risk class classification lowered so they could be released. They had to frame themselves in a pathological way within those the context of that and that having a charge of aggravated sexual assault and it and being on the sex offender registry. We had a number of the impacts of being charged in relation to aggravated sexual assault and HIV nondisclosure. I will say a couple things quickly just about the, the work that we've been doing, and the work that Richard mentioned from the Canadian Coalition to reform HIV criminalization. We formed in 2016 and a lot of the work that had been done prior very leading work by Richard who's a foundational legal analysis like informed a lot of my work in my dissertation and a lot of other people across Canada have been inspired by the work that Richard has done. But prior prior to the formation of the of the Canadian Coalition to reform HIV criminalization. There wasn't a lot of work of having people's lived experience involved and having people with lived experience of criminalization involved and at the forefront of this movement. And increasingly we've been building that capacity and working to ensure that we're working to mobilize the leadership of some people who have had lived experience of criminalization to kind of lead our movement and speak publicly about their experiences because I think in tandem with the legal and human rights analysis having people's lived experience there has been really helpful in shaping public discourse and gaining empathy and kind of building momentum to call for why we actually need change. I think we didn't have a full understanding of the impacts of the harmful impacts of the sex offender registry until we started talking to people on the sex offender registry about how harmful those impacts are. And a number of people who I spoke to in my study. I mean many have gone on to continue their lives and just want to move on with things and actually are continually surveilled indefinitely for the rest of their lives on the sex offender registry with no means to get off of it. And they often find that going into check into the police station when they have to where they have their whole body exam and then they have to give information about where they live and what they're doing and where they're going. They find that often really triggering they think they might be arrested again they have a fear of going back to jail is really brings back all of the kind of harm and stigma. So one of the things we've been trying to do and work on is ensure that we can undo the harms of the sex offender registry and move this out of the classification of being understood as a sexual offense, because it is not that at all. That's one of the work that some of the work that we're doing kind of with trying to call for the criminal code to be reformed, but I would love to open it up for a discussion and also just to chat with with everyone if people have questions or with Richard and we can kind of talk further about anything that I missed but also any other developments that would be useful for people. Yes, thank you both so much. I really appreciate not only the education and the knowledge that you have on a subject matter but also as very clear the passion that you have towards advocating for these groups and so that's very much appreciated. I just wanted to add one other thing before we open up for questions and I should have said it in my overview, the penalties that the law provides Alex alluded to to one of them. In the case of a conviction for aggravated sexual assault as probably many who are listening will know the maximum penalty prescribed in the criminal code is life imprisonment and the available data. So it's partial that I'll share in one of the links in a moment suggests that in the case of convictions for aggravated sexual assault that are based on alleged non disclosure of HIV. The penalties that have been imposed actually are substantially higher than in quote normal sexual assault cases so what we normally think of a sexual assault of coerced or forced sex. It is also the case that until very recently, it was mandatory that a person convicted of that offense would be designated as a sex offender. There's been a slight loosening of that although the full implications of that remain to be seen as a result of a difficult decision, but there, it's highly likely still that if you are convicted of aggravated sexual assault for allegedly not disclosing, you will be declared your order to register as a sex offender. And that in the case of an aggravated sexual assault conviction is presumptively for life and for a minimum of 20 years before you can actually apply to try to get yourself off sex offender registry. Obviously, if you are not a citizen of Canada and you are convicted, it is highly likely that you will be deported as because of the interplay between the provisions of the criminal code and what the immigration and refugee protection act says about expulsion or the possibility to Canada based on criminality or serious criminality to use the language of that act. So those are very serious consequences for engaging in consensualist activity without transmitting without intent to transmit in some cases in circumstances where there are some proactive measures to reduce the possibility of transmission. You know, this is in my submission a wild overreaction on the part of the criminal law to, to the conduct in question. And the other thing to just note is that Justice Canada itself has recognized that certain communities are disproportionately affected by this. Certainly black men in particular are unfortunately represented amongst those who have been prosecuted and convicted. And as recognized by Justice Canada, Indigenous women and gay men are also populations who are disproportionately affected by this, because we are significantly overrepresented amongst the population of people living with HIV. So any criminal law regime that hangs over people living with HIV is also going to particularly affect those communities as well. And sentencing outcomes also seem to be correlated with race as well with black and Indigenous persons who are convicted, receiving stiffer sentences than white people who are convicted. So we have some systemic problems here, which is partly why we need to go to the root of the problem and just get the criminal law as much as possible out of this domain. I should also thanks for that Richard and thanks for all those clarifications and adding to the understanding the context I should also note that in talking to people about their experiences. One of the things like we think of this as activists or as advocates as a criminal law issue and it's really interesting or when you talk to people not interesting but you talking to people at their experience, understand how public health law and criminal law intersect and can reinforce each other. And so one of the concerns I guess that I have as we move forward with reforms is that we might default to kind of coercive public health measures which could be equally or similarly harmful. And so in some instances in people's process of criminalization they would have had a public health order enacted against them or legal public health order. Public health orders if not followed correctly or if allegedly not followed correctly by public health officials could lead to police being called or or a criminal charge later not because of the public health orders themselves but complaining or rising up higher in terms of how the charges will be elevated and and then in court fast past failure to comply with public health orders could be used to justify intensified treatment by the criminal criminal system. And so it just been important to understand the intersections of public health line criminal law combined, but we do have a question I just realized for you Richard. I mentioned that amending the criminal code would be one of the best ways to help this issue for conviction to limit the circumstances is there any reason this kind of change hasn't happened. Is there resistance to slow wheels of bureaucracy. Yeah, great question. And it hasn't happened. Because I don't think that there has been any appetite on the part of decision makers to actually recognize the problem that there is a problem and to take steps like legislative reform to deal with it until very recently, and it remains to be seen of how much appetite there is and for just how much reform. There is. There was, there was also earlier period in this ongoing struggle, a real concern that turning to parliament to intervene would not necessarily lead to better outcomes conceivably possibly worse outcomes. It's to, I think, make as good an estimation as one can of what the likelihood is in a given parliamentary configuration of actually having enough support from enough MPs and then enough senators, which is a whole other matter to actually get enacted that are needed. And for quite a long period of time, there was not thought to be a that appropriate configuration of parliament that, you know, a majority conservative government that was strong on quote law and order as it likes to portray itself. And that had shown that it was quite happy with the state of legal affairs was not going to be a parliament that was actually to pass the kinds of reforms that are needed. In recent years, there seems to have been a growing recognition, at least in some quarters, including on the part of the current Justice Minister, that there is a problem, and his predecessor as Attorney General and Minister of Justice was, you know, got the ball rolling. When she issued a directive to the PPSC, the Public Prosecution Service of Canada, and, you know, issued a report from Justice Canada basically saying we have a problem here and something needs to be done. A couple of years ago, the Standing Committee on Justice and Human Rights in the House of Commons did a study and, as you've heard mentioned already, and made a number of recommendations, including recognizing that there is a need for law reform here. So that also I think helps get us closer to that ultimate goal. There will, and frankly underlying a lot of this, of course, is unexamined HIV stigma. It is still the case that I would sit us based on my experience of speaking about this over many, many years that the large majority of people will say, but of course someone with HIV should disclose. I have a right to know if my partner has HIV. It's on a really basic level. It's that kind of simplistic assumption and often reinforced by a lack of good information about HIV and how it's transmitted and not. That is, you know, the initial stumbling block here and that can be said of parliamentarians and policymakers just like everyone else. So that is a big hurdle to overcome. But I think through some of the work that's been done by advocates through some of the research that's been done by people like Alex to document the full range of harms. And the fact that scientists have also started to speak out and say we're really concerned that the criminal legal system is just not in tune with the science here. The number of feminist legal academics and women's rights advocates have also been very critical for a whole bunch of reasons about the use of sexual assault law to prosecute allegations of non disclosure. I think those things are starting to come together. And the conditions may be aligning for some possible reform, but may, and I'm going to be really caveatting that all over the place because we're just in a process of the government doing some consultation. And there's a lot of work still to be done between them hearing concerns from people, and then being willing to actually draft legislative amendments that are robust and that will properly limit the law. And then actually getting those through the parliamentary process so there's, you know, we're not, we're not there yet by any means, but we're closer than we've ever been before in 25 plus years of advocacy on this issue. Thank you for that Richard. I think, just along the same vein here we have another question in the chat, just asking about the status of advocacy efforts with parliament which I think you just touched on as well. But perhaps if you could discuss any of the advocacy groups and their ability to influence the prosecutorial policy that was also tacked on to the question as well. I mean, yeah, a little bit. Sure. I mean, you've been involved more in calling for prosecutorial guidance, which has been a strategy that's been called for for many, many years and been pushed for in Ontario specifically. And primarily by lawyers initially but also then before the Canadian coalition reform HIV criminalization came about. I would definitely say that advocacy groups have the ability to influence prosecutorial policy over time I mean I think in terms of the change that happened on in Ontario that was a pretty groundbreaking one that was that happened as a result of over 800 people mailing letters to the to the Attorney General's office, having multiple protests at the Attorney General's office, having petition to the attorneys Attorney General's office multiple op ads multiple news articles, many experts leading and calling for change and so consistent and constant pushing does work over time slowly in certain ways. The change doesn't always end up being the one you wanted to be necessarily but yes, I think would say Sophie that advocacy groups to have the ability to influence policy. And that's one of the reasons why we formed our coalition in 2016. We're connected to international network of organizations working to counter HIV criminalization around the world. This is a global advisory panel of the HIV justice network in Europe, which is a global network and Richard you're on the steering chair of the board chair chair of the board yeah okay. But one of the we actually formed our coalition at the HIV is not a crime conference in the US, which is a leading conference in North America on movements and specifically leading in the US around different states working to counter illegal HIV criminalization legislation. And so that work and being connected to global movements where you've seen people repeal harmful laws those are HIV specific laws which is very different than what we'd be advocating for in Canada we don't want to repeal aggravated sexual assault from the criminal code we want to change how it's being interpreted and that it can't be a limit the scope so that it can't be applied to HIV criminalization cases. We're connected to those movements and experts around the world we've seen that advocacy groups can influence policy and can change policy. There's been numerous states in the US where movements of people living with HIV and legal experts and advocates have mobilized for change, and have gotten laws either to be modernized or repealed harmful laws to be repealed and being connected to those movements has really influenced our work as the Canadian coalition and so one of the things we did strategically is form this coalition which is across Canada involving human rights experts, legal experts people on the ground who've been criminalized people who work in HIV organizations all together who can speak with one voice about what we want so in advance of the government's consultation that just took place and just ended the Minister of Justice's consultation, we conducted our own consultation, which involved many many people living with HIV and experts around across Canada, who informed us on what they want to see as a path forward and you can see the report and the outcomes of our consultation online, and we've used that to create a platform to call for change which is what we're pushing for in the current consultation process and so, being coordinated with advocacy groups can lead to change and hopefully I'm cautiously optimistic around the outcomes of the consultation we'll see we have to be really really cautious about what can happen and also whatever gets drafted could end up changing in multiple different ways once it's out in the world and we have to be really careful about how we move forward but have cautious optimism about it all. So we have about four minutes left. Something that I've been curious about I'm going to be a little bit selfish and ask a question of my own here. I'm just curious if there's been any efforts to approach this from a charter perspective. I know you've mentioned the human rights side but I'm just curious about that side of it. Sure. Yeah, I'm happy to speak to that we so so the HIV legal network and some other organizations like the HIV AIDS legal clinic in Ontario and an organization called Cuxida in Quebec that has an HIV and human rights program. Along with a number of organizations of people living with HIV and frontline ASOs AIDS service organizations in various configurations have intervened in some Pellet proceedings over the years including at the Supreme Court of Canada. And in those submissions we have, depending on the facts of the case and you know the space we have as interveners to you know for our written submissions and oral submissions have specifically spoken about the charter concerns that are raised by overly criminalization of HIV and in particular questions of equality and non discrimination or section 15 of the charter. So as I said in my remarks at the beginning, the wider you cast the net of HIV criminalization, the more you're approaching just recognizing people for living with HIV and having sex. Not because you're actually tying the application of the criminal law to actual harm or actual serious risk of serious harm, which ought to be, you know, a fairly high bar before you start deploying the criminal law against people. And so we've made we've made that point, amongst others in our submissions as one of the, you know, public policy arguments basically about why HIV criminalization as it currently stands is too broad and should be range in. We haven't spent. We haven't put a huge focus on that argument, in part because some of the exchange with courts from the early years but judges from the bench, including during the courier hearing and Supreme Court of Canada in 1998 suggested that that argument wasn't one that was going to gain a lot of traction. And so you want to be strategic as an advocate of course when you're going in front of the court and you have your five or maybe 10 minutes to make your own submissions and you have X number of pages in your written submissions. You really want to focus on the things that you think are going to be the stronger arguments and are going to persuade the court to adopt the position that you're putting forward. I don't see it has not seen would be one of those arguments, unfortunately, that's why we have not put too many eggs in that basket and we've advanced a whole range of other arguments about why the law should be limited in various ways. I think that the fact that we have data showing disproportionate impact on certain populations that I mentioned, and the Justice Canada's own report has recognized that you know also gives rise to other aspects of the quality concerns so not just based on each basis but certainly sexual orientation and race. But again, I, I'm not super confident that the courts are going to care about that enough, frankly, to have it serve as sufficient basis certainly not on its own to actually have the courts all from the fairly broad net that they've cast so far and say okay we're dialing is back we got it wrong we realize that now, and here's a much more limited legal framework that you should apply. I think that damage is done, you know the horses bolted the cat is out of the bag, and the court, the court, the Supreme Court and lower courts are just not able or willing to deal with this they've been given multiple opportunities, including the Ontario Court of Justice and frankly they've screwed it up more often than they haven't, then they've gotten it right. And so I don't think applying a charter argument here is going to get us very far, unfortunately. Sorry to be cynical, but one might call it realistic to know absolutely that makes sense. So it looks like we're at time here. I just wanted to give another huge thank you to you both for joining us today. Our chat was busy. We had some interested listeners today. And for anyone who wasn't able to watch this recording will be posted on our social media and shared within the next couple of days. Also if anyone watching has any questions for our panelists specifically, you can send them to our email dclsa.com and I will try to connect you to our panelists. I'll flip you a Word document that has links to some of the things I shared and outshared and a few other items as well that you might want to share with with people. That's wonderful. Thank you so much Richard. All right. Thanks very much. Thanks for having us. Take care everyone.