Within a week of being at the Canadian HIV/AIDS Network (the Network), I was given the opportunity to meet mayor John Tory and Queer Ontario New Democrat MPP Rev. Dr. Cheri DiNovo at a City Hall Proclamation declaring May 17th, International Day Against Homophobia, Transphobia and Biphobia. Notably, DiNovo introduced Bill 77, the “Affirming Sexual Orientation and Gender Identity Act” and is urging Kathleen Wynne to pass it by Pride in the upcoming weeks. The Act would prohibit conversion therapy for LGBTQ children, and prohibit doctors from billing Ontario Health Insurance for conversion therapy conducted on any patient. That said, Ontario isn’t the only province with groundbreaking trans* developments. Only a few days later in Quebec, amazing activists such as Gabrielle Bouchard, Samuel Singer and Jean-Sébastien Sauvé were speaking to the Committee on Institutions which included the Minister of Justice at the National Assembly at special consultations and public hearings on the draft regulation concerning the Regulation respecting change of name and of other particulars of civil status for transsexual and transgender persons. An issue of great concern for volunteering at the Clinique Juridique Trans* Legal Clinic and many trans* people living in Quebec.
The Canadian HIV/AIDS Legal Network is an intervener in Bedford v. Canada. The case is a constitutional challenge to Canada’s prostitution laws, specifically three laws in the Criminal Code: keeping a bawdy-house, living on the avails of prostitution, and communicating in public. Oral arguments in the case took place last Thursday (June 13) at the Supreme Court. Three plaintiffs, Terri-Jean Bedford, Amy Lebovitch and Valerie Scott, first filed the challenge in March 2007. Last year, the Ontario Court of Appeal held that provisions in the Criminal Code have serious negative impacts on the constitutional rights of sex workers, namely a threat to their health and safety.
It is legal in Canada for consenting adults to legally exchange sex for money; however, most activities related to this exchange are criminalized. For instance, the Criminal Code makes it illegal for sex workers, their clients, and third parties to communicate about the exchange of sex for money in a public place, or to “live on the avails” of prostitution. Sex workers are prohibited from taking basic measures to screen their clients, work indoors in a safe, familiar place, or hire security personnel to protect them.
Catholic, Christian, and the anti-feminist group REAL Women formed a coalition opposing decriminalizing the impugned provisions and were granted intervener status to make arguments before the court. The Evangelical Fellowship was also granted intervener status on its own to argue before the SCC.
On the other hand, the Feminist Coalition and 2 sex-worker led coalitions were denied intervener status by Justice Richard Wagner back in May: The POWER-Maggie’s-Stella Coalition and the International Sex Worker Coalition made up of sex worker associations from Australia, Sweden and New Zealand. This was a huge blow to ensuring that the voices of sex workers are at the forefront of case proceedings. As Catherine Healy, coordinator of the New Zealand Prostitutes’ Collective, stated, “Sex workers are the real experts on the sex industry and know first-hand the impact of the criminal law on our safety and human rights. It is extremely concerning to us that the Supreme Court of Canada proposes to examine this case without the input of a broad cross-section of those most affected.”
Also denied status was the Feminist Coalition, representing 23 women’s shelters, rape crisis centres, clinics and women’s rights organizations across Canada as well as internationally. These groups offer frontline services to sex workers and also work to advance the rights of sex workers. In addition, the Canadian Civil Liberties Association was denied intervener status.
A group calling itself the Women’s Coalition for the Abolishment of Prostitution (includes the Canadian Association of Elizabeth Fry Societies, the Native Women’s Association of Canada, the Canadian Association of Sexual Assault Centres, Le Regroupement Québécois des Centres d’Aide et de Lutte contre les Agressions à Caractère Sexuel, the Vancouver Rape Relief & Women’s Shelter, and L’Action Ontarienne contre la Violence faite aux Femmes) was granted intervener status, and advocates an “asymmetrical” approach to criminalization. This approach, known as the “Swedish model”, is underpinned by the philosophical imperative that all sex work is inherently a manifestation of violence against women and, therefore, must be eradicated. To reach the end of sex work, therefore, laws must continue to criminalize the purchase of sex and those who “promote” sex work, including sex workers themselves.
In 1999, Sweden passed the law Prohibiting the Purchase of Sexual Services (Sex Purchase Act), which punishes those who purchase sex with a fine or imprisonment for up to one year. The law’s stated objective is to “end demand” for prostitution because sex workers are deemed to be “victims” and sex work is considered to cause serious harm to individuals and to society as a whole.
Evidence from the Swedish sex work industry since the law’s passage, however, reveals that the law perpetuates stigma, discrimination and violence against sex workers, concerns at the core of the constitutional challenge in Bedford. Street sex workers have reported increased experiences of violence. Regular clients have avoided them for fear of police harassment and arrest and are instead using the Internet and indoor venues. This has led to greater competition for clients, driven prices for sex down, and forced sex workers to accept clients they would have otherwise refused, including those who insist on unsafe sex practices. Sex workers who work indoors continue to be criminalized and are unable to work or live with others, including their partners, since it is illegal to share in any income derived from sex work.
Furthermore, sex workers continue to be denied access to social security benefits that are available to all other workers in legal labour activities. As in Canada, the Swedish model wrests control from sex workers over their working conditions and institutionalizes an adversarial relationship between sex workers and law enforcement.
The Legal Network’s arguments are informed by principles of the rights to health and work, and embody the perspectives of a range of Canadian and international sex worker activists. They are also supported by a broad consensus among international health and human rights experts that the criminalization of sex work—and, by extension, sex workers—threatens the health and human rights of sex workers.
It is clear that the legal framework for sex work in Canada must change. But it must pivot towards seeing sex workers as just that –workers, engaged in labour, and in need of the rights and protections associated with belonging to the workforce. Bedford is an important step toward providing sex workers their international and Charter rights to freedom of expression, freedom of association, security of the person, right to work, and the right to enjoy just and favourable conditions of work.
I am at the Canadian HIV/AIDS Legal Network. The Legal Network’s 5th Annual Symposium took place last week. The highlight of the Symposium was A Conversation with Frank Mugisha, a leading Ugandan activist and advocate for LGBT rights in sub-Saharan Africa.
A Conversation with Frank Mugisha
The Canadian HIV/AIDS Legal Network was honoured to host Frank Mugisha, one of Uganda’s leading activists in the struggle for lesbian, gay, bisexual and transgender (LGBT) rights at the Toronto Refernece Library last Thursday, June 13. Executive director of Sexual Minorities Uganda (SMUG) and founder of Icebreakers Uganda, Mugisha received the 2011 Robert F. Kennedy Human Rights Award and the Thorolf Rafto Memorial Prize for his activism in combating homophobia throughout sub-Saharan Africa.
Former Toronto mayor, Barbara Hall, introduced Mugisha, and reflected on the city’s early failure to mobilize a public response to the HIV/AIDS epidemic in the 1980’s.
Mugisha spoke about the 2009 introduction of Uganda’s anti-homosexuality bill (An Act to prohibit any form of sexual relations between persons of the same sex; prohibit the promotion or recognition of such relations and to provide for other related matters), introduced by Member of Parliament, David Bahati. The legislation proposes to impose the death penalty for serial acts of homosexuality, broaden the criminalization of same-sex relations and even includes provisions for Ugandans who engage in same-sex relations outside of Uganda, potentially extraditing individuals back to Uganda for sanctions. The bill also imposes penalties on individuals, companies, media outlets, and non-governemental organizations that know of LGBT people or support LGBT rights. Under present law, same-sex relationships are illegal in Uganda, and punishable by incarceration up to 14 years.
This blog post was prepared for Legal Aid Ontario and can be read via their website: http://blog.legalaid.on.ca/2013/06/17/keynote-event-roundup-a-conversation-with-frank-mugisha/
Mugisha noted that the roots of the proposed law can be traced back to a conference at which three prominent American evangelical Christian leaders asserted that homosexuality threatened the cohesion of African families. Since being introduced, the bill has been denounced by the international community and numerous governments have threatened to rescind aid from Uganda. Strong resistance from the international community and from local Ugandan activists has helped delay the bill in committee, though Bahati re-introduced the bill in February 2012.
Mugisha advocated a delicate approach in combating current myths that impede progress for LGBT rights in Uganda, including the view by many Ugandans that homosexuality is a Western import and not indigenous to African culture. As one way to reduce stigma, Mugisha calls for more community discussions to help give a face to LGBT people.
Despite threats to his life and the 2011 murder of his mentor and colleague David Kato, Mugisha remains resolute when responding to concerns about his safety. He feels that his recognition as an activist has helped protect him from arrest. “My visibility and my speaking is my protection,” he said. He did admit, however, that he must take caution when moving through Kampala and the rest of the country.
Mugisha has received offers of asylum in many countries, but insists on staying in Uganda. “I can never think about leaving Uganda. I have lived there all my life.”
Video of the event is available via the website of the Canadian HIV/AIDS Legal Network.
This blog posted is also available on Legal Aid Ontario‘s blog.
By Jihyun Rosel Kim
Before I began my internship, I was told it would involve mostly research. That statement is technically true – the majority of my time here was spent wrestling with Quicklaw, writing memos, or making information charts. However, one thing I’ve learned about the Legal Network is that it is truly committed to the issues identified in its mission statement, and will speak out in various ways.
1. Quiet action at the Court of Appeal
On June 15, staff of the Legal Network and other members of the community (including members of the Ontario Working Group on Criminal Law and HIV Exposure) participated in a “quiet action” campaign at the Ontario Court of Appeal. The Court was scheduled to hear an appeal on a case involving HIV status non-disclosure (R. v. M.), where both the Canadian HIV/AIDS Legal Network and HIV/AIDS Legal Clinic of Ontario (HALCO) were intervenors.
At trial, the judge ignored case law by not applying the significant risk test (i.e. a person living with HIV must disclose his/her status to the partner when the sexual activity poses a “significant risk of bodily harm”) set out in R. v. Cuerrier. Instead, he charged the defendant with aggravated sexual assault simply on the ground that the defendant did not disclose his status. Although the defendant stated he used a condom (which further diminishes the already-low risk of HIV transmission), the trial judge said it did not matter whether the sex was protected or not.
To demonstrate to the Court that people living with HIV and their allies were concerned about such overbroad use of criminal law, the Legal Network organized a t-shirt campaign—members showed up to the courtroom all wearing the same t-shirt with the logo “HIV Positive” at the front. There were about 18 people at court, and since the assigned courtroom for the hearing happened to be a smaller one, we effectively filled the gallery.
Unfortunately, the Court decided to stay the appeal, to wait for the Supreme Court decision on HIV non-disclosure (R. v. D.C.; R. v. Mabior) later this year. Even though it was a bit anti-climactic, one of the justices did take notice of the audience uniformly dressed in “HIV Positive” shirts to address us directly, and say that he realizes these issues are important and that he will make sure to rule on the issues carefully once the Supreme Court decision came down.
2. Action around cuts to refugee health care
At the end of April, Citizenship and Immigration Canada announced changes to the Interim Federal Health Program, which would effectively cut most supplemental health care benefits for refugee claimants, and all access to government-funded health care services for failed refugee claimants (who may reapply to stay in Canada under humanitarian and compassionate grounds). The only exception would be when the claimant’s health condition presented a “public health risk”—such as HIV. As of now, the public outcry seems to have made Kenney’s office backtrack a little bit from their initial cuts these days, but most of the cuts still remain.
On June 18—the national day of action to protect refugee health care—the Executive Director emailed everyone about the protest in Toronto, and encouraged everyone to attend the protest with him. So later on that day, I went to the Citizenship and Immigration Canada office on St. Clair Avenuewith a team of policy analysts and the ED of the Legal Network, and joined a few hundred people who were chanting “health care for refugees!”
Through participating in these actions, I’ve learned about the joys of being out on the streets with other people who believe in the same things as I do, which offers tremendous comfort in times where laws and policies seem to be going to a dark place. These experiences won’t appear on my CV as things I accomplished, but they nevertheless had a big impact on my outlook on activism and effective advocacy.
And for that intangible feeling of joy that came from connecting with other like-minded people who are committed to making things better, I am very grateful to the Legal Network.
by Jihyun Rosel Kim
When people hear the question “should non-disclosure of HIV status be a criminal offence?” their usual response is, “well of course! We shouldn’t hurt people.” When all we see and hear about HIV in the news is so sensationalized to the point that we equate HIV with death and people with HIV with predators, that response is understandable.
The landmark case involving HIV status disclosure was R. v. Cuerrier. In the case, the Supreme Court established that failure to disclose one’s HIV status could lead to a charge of aggravated sexual assault, which can lead to a maximum of a life sentence in prison. Justice Cory for the majority stated that non-disclosure of HIV status that would lead to a “significant risk of harm” would constitute an aggravated sexual assault. However, he never clarified what exactly would amount to “significant risk,” despite the differing levels of risk of transmission in diverse sexual activities. Justice Cory did, however, stated in an obiter that certain actions such as wearing a condom might be seen as mitigating the “significant risk.”
Since the Cuerrier decision in 1998, science has come a long way for HIV/AIDS. Moreover, research has shown that transmission risks for HIV are generally low, and differ significantly depending on the activity. Generally, the transmission rate of HIV during unprotected vaginal intercourse is 0.1% per act (with recent analysis suggesting a more accurate rate would be 0.08% per act). If a person has an undetectable viral load (below 50 copies of HIV virus per mililitre of blood), the risk of infection is about 1 in 10,000 for unprotected sex acts. Recent studies also suggest that antiretroviral therapy can reduce transmission up to 96% in heterosexual couples, where one partner is HIV-positive and the other is HIV-negative.
Yet, Canadian courts have not kept up with scientific evidence. Due to the unclear guidelines regarding what exactly constitutes “significant risk,” courts have continued to send mixed messages regarding legal duty to disclose one’s status. Some courts have held that a person who did not disclose to a partner but wore a condom is not criminally liable. Other courts have held the opposite view by charging a defendant with sexual assault for non-disclosure without considering the kind of sexual activities.
The conflicting messages from the courts seriously undermine and threaten the rights of people living with HIV/AIDS (PLHs). How can PLHs truly prove that they disclosed to a partner – should they require witnesses or signatures? Should activities such as oral sex and mutual masturbation, which bears almost zero risk of transmission, bear the possibility of a criminal charge, when almost no activity in our lives are truly risk-free? What about the issue of partners, who can blackmail and even abuse their HIV-positive partners by threatening to charge them?
My first two weeks at the Canadian HIV-AIDS Legal Network have felt like an intense and stimulating crash course. One of my first tasks was to gather information on access to HIV/AIDS treatment to help a policy analyst prepare for a guest lecture. The policy analyst also asked me to go beyond the numbers and find any factors that may complicate the numbers that I found. By the time I finished the research, I came out questioning the word “access” altogether. Here were my findings:
- At the end of 2009, 36% (about 5.2 million) of the 15 million people in need in low- and middle-income countries were receiving antiretroviral (ARV) therapy, which is used to suppress the HIV virus.
- Only 21 countries provide data on people with HIV who inject drugs. Out of the 21 countries, only 9 countries had a treatment rate of 10% for this demographic. 
- Some countries may have initiatives and programs that sound great and accessible, but the whole picture is always more complicated. For example, the National AIDS Control Organization (NACO) provides free first-line ARV treatment in India. However, accessing treatment for sex workers is still difficult due to the negative disposition of health workers. One sex worker recalled to the researchers: “If I am going to be in a condition to take tablets [ART], I will not go there because they denigrate us.”
- Migrants also face additional barriers to HIV/AIDS treatment, due to strict immigration policies. For example, EU’s Return Directive, established in 2008 and enforced in 2010, enables a member country to detain migrants up to six months. This may make public health interventions regarding HIV/AIDS to migrants more difficult.
If these facts sound a bit foreign and removed, there is also the issue of differing coverage of ARV drugs by province that can cause mobility issues. Some provincial health care systems don’t cover newer form of drugs. Quebec won’t reimburse claimants who buy medication out-of-province.
“Access” has become one of the buzzwords of human rights law. In many reports I read, there are often goals or objectives that have to do with improving or increasing access to certain services. In our efforts to improve access, we must not only focus on the numbers, but also focus on who gets to access services or programs as well, and how social structures and stigmas limit the effectiveness of certain programs.
 UNAIDS, Report on the Global AIDS Epidemic, 2010.
 V. Chakrapani et al. “Barriers to free antiretroviral treatment access for female sex workers in Chennai, India,” AIDS Patient Care and STDs 23 (11) (2009): pp. 973-980 at 976.
 Directive 2008/115/EC, European Union, art. 15.5. (http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:348:0098:0107:EN:PDF)
 Deborah Yoong, “Access and Coverage of HIV Medications across Canada”, published on Toronto General Hospital’s website: http://www.hivclinic.ca/main/drugs_reimbuse_files/Provincial%20Coverage%20of%20HIV%20medications.pdf)