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HIV lawyers help fight stigma

Focus on ‘It’s a chronic, manageable disease’
|Written By Michael McKiernan
HIV lawyers help fight stigma
Jonathan Shime says the science supports a less zealous criminal pursuit of those with HIV.

If the law and societal attitudes to HIV had advanced as fast as the science associated with the virus, Ryan Peck might well be out of a job.

“In the 1980s, an HIV diagnosis was understood to be a death sentence, and you had people dying left, right and centre here in Canada and in the U.S.,” says Peck, executive director of the HIV and AIDS Legal Clinic Ontario, which is devoted to providing free legal services to people living with the virus.

By the time Peck joined HALCO in 2001 as an articling student, researchers had developed a firm grip on their understanding of the virus, and pro­gress has only accelerated since then.

“Antiretroviral therapy has completely transformed the face of HIV,” Peck says. “It’s a chronic, manageable disease, akin to something like diabetes; as long as you’re taking your medication every day and looking after yourself, you can lead a pretty happy, normal, healthy life.”

Unfortunately, he says, public opinion on the subject has evolved on a considerably slower scale, creating a host of legal issues for HIV-positive individuals and providing plenty of work for HALCO.

“What is still the hallmark of an HIV diagnosis is the very real stigma and accompanying discrimination,” he says, noting that a 2012 attitudinal tracking survey conducted for Public Health Canada found that 15 per cent of respondents feel afraid of people living with HIV/AIDS and 24 per cent would feel uncomfortable putting on a sweater once worn by someone with the virus.  

More than half of HALCO’s governing board lives with HIV, and Peck says he has been inspired by the advocacy of that community during his entire tenure at the clinic. 

“From the beginning, it’s those people, who were the most affected and impacted, who have taken care of each other and been at the forefront of change,” he says. “They revolutionized patient-centred care not just for themselves but for health system users more generally.”

Toward the top of HALCO’s current priority list is Canada’s criminal prosecution record of individuals with HIV for non-disclosure of their status to sexual partners. By criminalizing risk of exposure to HIV, Peck says, Canada is out of step with jurisdictions such as the U.K., where prosecutions are limited to cases of reckless transmission.

With more than 200 criminal cases brought, the bulk of them in Ontario, Canada lies third on the list of the most vigorous prosecutors of people living with HIV per capita in the world, behind only Russia and the U.S.   

“That’s not a title we should be shooting for,” says Jonathan Shime, a criminal lawyer with Toronto firm Cooper Sandler Shime and Bergman LLP, who says the science supports a less zealous criminal pursuit of those with HIV.

For those whose condition is under control through medication, he says, their low viral load makes the chance of transmission extremely small during many forms of sexual contact and virtually zero when a condom is used. 

“In the U.K., they realized it was defeating public health goals because the stigmatization makes people less likely to get tested for HIV,” Shime says. 

For that reason, he welcomed a Justice Canada report issued late last year that recommended criminal sanctions not be sought against those on treatment who use condoms or engage in oral sex only. Ontario’s Ministry of the Attorney General also said it would not proceed with charges against people whose viral load was suppressed for at least six months. 

“It’s positive, but it’s not sufficient,” Shime says.

In the last decade, HALCO has boosted its expertise in immigration law as a result of demand from both refugees and economic migrants with HIV, says Peck.

Michael Battista, a Toronto lawyer with Battista Smith Migration Law Group, has acted for a number of refugee claimants who sought protection in Canada as a direct result of their HIV-positive status.

“In many countries around the world, people with HIV are heavily stigmatized and discriminated against. They’re ostracized and can even be subject to violence,” he says.

For economic migrants, he says, the inadmissibility provisions of the Immigration and Refugee Protection Act have historically presented an additional hurdle for applicants with HIV who are otherwise deemed suitable for permanent residence, due to the cost of medication.

Section 38(1)(c) of the act makes foreign nationals inadmissible to Canada if their health condition “might reasonably be expected to cause excessive demand on health or social services.” 

“When I first started practising in the early ’90s, there was very little I could do for people with HIV who wanted to qualify in the economic categories,” Battista says. 

Until the Supreme Court of Canada’s landmark 2005 decision in Hilewitz v. Canada (Minister of Citizenship and Immigration), he says, jurisprudence offered very little scope for lawyers to argue that the economic impact of a person’s HIV-positive status could be borne by sources other than government, such as the individual’s family or a private medical insurance plan. 

“That’s when we were able to start offering alternatives to people affected by HIV,” Battista says.

More recently, Immigration, Refugees and Citizenship Canada tripled the threshold at which treatments are considered to impose an excessive demand to almost $19,000 from the old level of $6,500 per year, after hearing from critics who labelled the provision discriminatory to people with disabilities. 

The federal government has also left open the possibility it will repeal the section altogether at some point in the future in line with a recommendation from the House of Commons’ Standing Committee on Citizenship and Immigration in late 2017. 

Battista says the changes are “very positive,” but he says he still harbours hope the government will follow through on the recommendation and repeal the provision, which he says may not even be achieving its aim of saving taxpayers money.

“My quarrel with this provision was always that it fails to account for the contribution a skilled immigrant will make to the country and whether that outweighs the potential cost of the health condition,” he says. “Even after tripling the threshold, unfortunately, Canada is still known around the world as a country that refuses people entry based on their health, which is a stain on our reputation as a fair society.”

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