Canada’s Progress in its Commitment to Ending AIDS as a Global Health Threat by 2030

By Nick Pineau

My final project with the HIV Legal Network involved writing a report analyzing Canada’s progress in its commitment toward ending AIDS as a global health threat by 2030. In March 2021, UNAIDS released its Global AIDS Strategy (hereafter “the Strategy”) for 2021–2026, which offers numerous recommendations to ensure the world has zero new HIV infections, zero discrimination, and zero AIDS-related deaths by 2030. However, as COVID-19 developed into another global pandemic in early 2020, the progress toward ending the AIDS epidemic has halted. Furthermore, the twin pandemics have inequitably exacerbated the impact AIDS has on marginalized communities. To properly assess the barriers to people living with or affected by HIV, the Strategy offers numerous recommendations through an “inequalities lens”, evaluating the pandemic’s impact from the perspective of those most affected by it.

Despite its commitment toward ending the AIDS epidemic, Canada is still far from achieving the goals it has set out for itself. By 2019, over forty countries were within reach of the epidemiological milestone of endings AIDS—yet Canada was not among them. Populations at risk of HIV, including men who have sex with men, transgender people, people who inject drugs, sex workers and their clients, and people in prisons or other closed settings, remain in a precarious position within our country. Much of the HIV Legal Network’s work centres around the result areas mentioned in the Strategy. For this blog post, I will take a look at how Canada is doing in comparison to the Strategy’s recommendations in three key areas: prison rights, drug use, and HIV non-disclosure.

For prison rights, the Strategy advocates for a harm reduction approach for prison or other closed settings, including voluntary HIV testing and treatment, needle-syringe programs, opioid substitution therapy, and naloxone kits. While the Correctional Services of Canada stipulates that they offer inmate HIV testing, access to opioid treatment, and PrEP & PEP, there is limited data on the prevalence of such programs at each individual facility across Canada. The CSC should strive to better report on such programs to properly assess whether Canadian inmates are receiving adequate harm reduction services. Furthermore, Canada’s Prison Needle Exchange Program has not accelerated at the requisite rate—the program has only been implemented at 11 of the 53 federal institutions in Canada. Such a program could significantly reduce HIV transmission at closed facilities and secure inmates’ right to security of the person.

The Strategy also recommends that discriminatory laws and policies against drug use ought to be repealed, including those that criminalize drug possession for personal use. Rather than punish and stigmatize people who use drugs, a health-centred approach to drug use should be comprehensive, people-centred (with community-led responses and systems), and gender transformative. Canada has recently made progress in decriminalizing drug possession for personal use—a prosecutorial directive was issued in August 2020 to divert individuals from the criminal justice system for simple possession cases. Yet the criminal system may remain a blunt tool to deal with the intricacies of drug use. Rather than further stigmatizing individuals who use drugs by sending them to prison for, for instance, sharing between friends (and thus trafficking), Canada ought to adopt a health-centred model for dealing with drug use and not further entrench the marginalization of people who use drugs.

Finally, Canada is among the 92 countries worldwide that criminalize HIV non-disclosure. The Strategy recommends creating an enabling legal environment that de-stigmatizes seropositivity and the removal of discriminatory laws that criminalize HIV non-disclosure. The concept of U=U, undetectable = transmissible, whereby HIV-positive individuals with ‘undetectable’ viral loads cannot realistically transmit the virus, has the potential to accelerate anti-stigma efforts. Canada has recently made progress in lessening the criminality of HIV non-disclosure, with then-Attorney General Jody Wilson-Raybould issuing a prosecutorial directive in 2018 not to prosecute HIV non-disclosure except in more severe cases. Wilson-Raybould acknowledged that HIV is a public health issue that disproportionately affects Indigenous, gay, and Black persons in Canada, and I would contend that using the criminal law to solve such an issue can further entrench stigmatization. Yet the directive’s force is lesser than if a Criminal Code amendment were made to legislate on the subject. HIV non-disclosure remains a crime on the books in Canada, and can be prosecuted as aggravated sexual assault which carries a maximum penalty of life imprisonment. This could undermine public health initiatives to encourage HIV testing, and may simultaneously increase the stigma and discrimination faced by people living with HIV. Canada should adhere to the Strategy’s recommendations to fully realize the rights of those living with HIV.

This brief survey demonstrates that Canada has much to do in order to ensure the country is on track toward ending AIDS as a public health threat by 2030. Canada ought to adhere to the Strategy’s recommendations and fully implement harm reduction initiatives in prisons, decriminalize drug possession for personal use, and decriminalize HIV non-disclosure. With renewed political commitment, advocacy, and community mobilization, Canada has the potential to fully realize the human rights of people living with or affected by HIV and AIDS.

The work continues

The end of my summer internship at Equitas provided me with many invaluable personal and professional lessons. First off, I was able to hone some skills and knowledge that I already had, while being challenged to apply them in a completely different setting. Feeling valued as a team member and encouraged to ask questions and make suggestions helped me feel as though I actually had something meaningful to offer. I learned a lot about the impact of working in silos and the consequences that may have, especially in a virtual work setting as well as how to mitigate against them in real-time. Equitas genuinely believes in the value of mentorship, relationship building, and sustainable impact and I feel so incredibly lucky to be able to continue with them this fall to see the work we did over the summer play out. 

This internship has given me a lot to think about in terms of my personal challenges and strengths as well as in the terms of the work I would like to pursue in the future. Going into this summer, I wasn’t sure if human rights work was for me in a formal sense, especially with a narrowed lens on ‘lawyering’, but after these past few months with Equitas, I have been introduced to so many possibilities and opportunities. As I enter 4L, I feel a bit more at ease knowing that even for someone like me who ended up in law school and has struggled the whole way through, there may be a place for me where I can do decent work and put these degrees to good use – a feeling I am so deeply grateful for.

Thank you Equitas, and thank you IHRIP Team

Going North

By Sarah Nixon

The views expressed in this blog are my own.

Before my placement with Nunavut Legal Aid this past summer, I spent very little time thinking about Nunavut, and even less about working in criminal defence. Now, after nine weeks working remotely and three weeks in-person in the territory, I can’t get either off my mind.

Arriving in Iqaluit in early August, I was stunned at how beautiful it was. Being north of the treeline, you can see very far in the distance from almost any vantage point, and you often pass striking views of the Arctic Ocean and rolling hills while simply walking around town from point A to point B. Two of the schools in the city are up on one of the highest hills in Iqaluit, with a panoramic view of the inlet and mountains on the other side of the water. I’ve never seen a school with such a breathtaking view, and as one of my hosts commented, it’s no wonder people might struggle to adjust to their new surroundings if they leave this incredibly scenic place for the South of Canada. In Iqaluit, you can also walk about twenty minutes in one direction from pretty well any place in the city to find yourself somewhere that there is ‘only’ tundra as far as the eye can see. I use scare quotes here because the tundra itself is especially beautiful, with so many different types of moss and low shrubs growing over one another amongst the varying coloured rocks and purple saxifrage. With all of the beautiful views to take in, I was glad to benefit from late evening light (the sun set around 10:00 pm while I was there) for many long walks around Iqaluit after work.

View on the water in Iqaluit

 

The tundra with purple saxifrage

 

View from two of the schools (!!)

Inuktitut is very widely spoken in Nunavut, including by some of the Legal Aid staff in the Iqaluit office. It was a pleasure to hear the language being spoken around me in the halls and gathering places at the office, and to have kind staff members share new words and phrases with me.

At the same time, the lack of Inuktitut-speaking lawyers and judges in the territory creates challenges for criminalized people and actors within the criminal justice system. While live translation is available during court proceedings, it is not always accessible during client meetings, nor when community members are speaking with police during the events that lead to criminal charges. The Nunavut Law Program, which produced its first class of graduates in Spring 2021, will surely help to address this issue in the coming years. However, it does not appear that there is any plan in place to change the system of ‘rotation’ of RCMP officers coming from various places in the South to spend short periods of time working in Nunavut. The challenge of communicating across this language barrier likely impedes understanding between English-speaking RCMP officers and those Nunavummiut whose first language is Inuktitut. One thing I observed repeatedly over the summer is the crucial role that police officers play in deciding when to recommend charges to the Crown. When interactions between police and community members are hampered by a language barrier, this decision-making process is surely affected.

Evening view in Iqaluit

It is difficult to write much more about my work this summer as I was privileged to be directly involved with a great number of clients’ cases, meaning the vast majority of my work was confidential. I can say, however, that criminal defence work is mentally and emotionally very challenging. Whether working remotely or in-person, I was exposed to many traumatic stories and experiences. Often enough, I found I could not begin to process each story and still finish that day’s work. It is certainly possible to prepare for and manage this experience, but to any future student considering this position, please plan to do so in a way that works best for you. To be clear, I hope this small ‘disclaimer’ does not deter any future intern, as I can assure you that the difficult parts of the placement were more than balanced by demonstrations of bravery, love, and resilience, by clients, their families, and all the staff at Legal Aid. I am grateful for the truly pivotal experience that this placement offered me, and I would be glad to discuss it in more depth with any interested applicant.

 

 

 

The Right to Housing in Canada

The National Housing Strategy Act, 2019 (NHSA) created my office, the Office of the Federal Housing Advocate at the Canadian Human Rights Commission. It also declared that housing was a human right (NHSA s.4). Canada has ratified the International Covenant on Economic, Social and Cultural Rights, which includes the right to adequate housing at Article 11. However, in the common law, it’s often said that there’s no right without a remedy, and Canadian courts have been reluctant to recognize a right to housing.

The right to housing has only been looked at by Canadian courts a few times. In City of Victoria v Adams (2008), the homeless community in Canada challenged a city bylaw that banned the construction of temporary shelters in public parks where the litigants lived as a violation of their s.7 rights (life, liberty, security of the person). The judge agreed that the ban unjustifiably violated s.7 and the decision was upheld by the British Columbia Court of Appeal. Notably, City of Victoria v Adams was decided prior to the enactment of the NHSA.

The right to adequate housing was litigated directly in Tanudjaja v Canada (Attorney General) (2014).  Individual applicants suffering from homelessness and inadequate housing brought Charter ss.7 and 15 (equality) claims against the Canadian government’s general approach to housing, which resulted in social conditions that violated their rights. This case was decided on a motion to dismiss, not the merits. The motion judge found “no positive Charter obligation which required Canada and Ontario to provide for ‘affordable, adequate, accessible housing’” or any breach of the principles of fundamental justice regarding the s.7 claim (ONCA, para 17). On the s.15 claim, the motion judge found that the applicants were not denied a benefit conferred to others or burdened compared to others by the actions of the government, and that homelessness or inadequate housing did not constitute an analogous ground of discrimination. The motion judge concluded that the claim for a right to adequate housing was not justiciable, a decision upheld by a majority of the Ontario Court of Appeal. The Supreme Court denied leave to appeal.

There is a general assertion that “positive claims against the state for the provision of certain needs are not justiciable because they would require courts to dictate to the state how it should allocate scarce resources, a role for which they are not institutionally competent” (Gosselin v Quebec (AG), para 330). While there is international consensus that the “positive” and “negative” rights dichotomy is false and not useful, Canadian courts still look at positive obligations as “non-justiciable.” That said, positive obligations have been found in other non-housing contexts, such as Canada v PHS Community Services (2011) for s.7 and Eldridge v BC (AG) (1997) for s.15.

According to the Supreme Court in R v Ewanchuk (1999), “the Charter is the primary vehicle through which international human rights achieve domestic effect. […] In particular s.15 (equality provisions) and s.7 (which guarantees the right to life, security and liberty of the person) embody the notion of respect of human dignity and integrity” (para 73). The concept of human dignity is particularly relevant to the right to adequate housing. One expert our office met with noted that Ontario courts have stated eviction is next worst thing that can happen to someone after incarceration. Human dignity is also referenced in the National Housing Strategy Act in s.4(b): “housing is essential to the inherent dignity and well-being of the person and to building sustainable and inclusive communities.”

Gosselin v Quebec (AG) (2002) is a leading case used to try to get the courts to recognize positive obligations in Charter rights. It concerned an inadequate level of social assistance benefits given to the applicant who had not enrolled in a workfare program. The majority of the Supreme Court ruled against the applicant with a restrictive interpretation of s.7, emphasizing a “deprivation” of the right to life, liberty, and security of the person. However, the majority also stated that “one day s.7 may be interpreted to include positive obligations” (para 82). Arbour J. wrote a significant dissent, arguing that s.7 “imposes a positive obligation on the state to offer basic protection for the life, liberty and security of its citizens,” and that “justiciability is [not] a threshold issue barring the consideration of the substantive claim in this case” (headnote). Bastarache J. in a separate dissent suggested that poverty could constitute an s.15 analogous ground of discrimination, stating “the fact that people on social assistance are in a precarious, vulnerable position adds weight to the argument that differentiation that affects them negatively may pose a greater threat to their human dignity” (para 238).

The COVID-19 pandemic has also impacted how housing is viewed, both by the public and by the law. The UN Special Rapporteur on the right to adequate housing stated that “housing is the front-line defence against COVID-19.” People were told to “stay home,” even though not everyone had housing where they could stay to protect themselves and others from COVID-19. In Quebec, a curfew between the hours of 8PM and 5AM was ordered as a public health measure. This disproportionately affected people experiencing homelessness, who had nowhere to go. A safeguard order brought to prevent the curfew and fines from applying the homeless population was granted, and the judge noted that serious questions were raised about whether the curfew infringed the ss.7 and 15 rights of people experiencing homelessness. However, there were also some positive developments in the right to housing, like eviction moratoriums, rental relief, hotels opened to people experiencing homelessness. While none of these solutions were perfect, it is important to capitalize on this progress while continuing to call attention to flaws in policies and new issues (policing encampments). While we strive for the judicial recognition of the right to housing, we should also think about what the right to housing looks like outside of the courts.

Navigating the Ins and Outs of the Yukon Human Rights Act

During my time at the Yukon Human Rights Commission (the “Commission”), I drafted legal memos for the Legal Counsel and Director. The subject matters of these legal memos often arose out of ongoing Commission investigations, or live matters before the Director, which made them both timely and interesting. The memos also often dealt with interpreting and potentially expanding the scope of the Yukon Human Rights Act. In this blog, I will highlight my findings from my largest undertaking during the internship: a memo I drafted on section 12 of the Yukon Human Rights Act. Currently, section 12 of the Act reads as follows:

Systemic discrimination: “Any conduct that results in discrimination is discrimination.”

My colleagues at the Commission and I thought that this definition of systemic discrimination could use some work as it lacks clarity and specificity. Therefore, my task was to do a deep dive into how the term should be defined, and to propose a series of reforms to this section of to the Act that could clarify the definition of systemic racism/discrimination.  To ensure that I proposed a comprehensive set of recommendations, I surveyed all Canadian human rights legislation (provincial, territorial, federal) and jurisprudence to assess if and how other jurisdictions drafted provisions relating to systemic discrimination, and how these provisions were interpreted by tribunals and courts. I also looked broadly at academic commentary on the matter.

I found that, currently, no exemplary definition of systemic discrimination exists in Canadian legislation. However, upon surveying different definitions and interpretations of the term, I identified six key characteristics that, if combined, could make up a comprehensive definition of systemic discrimination. These key elements are the following:

  1. The effect or impact of a policy or act, rather than its intention, is at the crux of systemic discrimination. In other words, if a well-intentioned policy or act has the effect or impact of disadvantageous treatment of a particular protected group, it may be considered to perpetuate systemic discrimination despite its intent.
  2. Facially neutral policies or acts may cause systemic discrimination.
  3. Systemic discrimination is often subtle or “hidden.”
  4. Systemic discrimination is rooted in long-standing social and cultural attitudes and norms.
  5. Systemic discrimination may be embedded or detected in patterns/series/continuing phenomena that have significant cumulative effects. In other words, “the whole is greater than the sum of its parts” when it comes to the collective effect of various instances of discrimination or differential treatment that result in systemic discrimination.
  6. Systemic discrimination often contains an element of intersectionality.

In addition to the Yukon, Manitoba and Saskatchewan are the only other jurisdictions that define or include systemic discrimination in a meaningful way in their human rights legislation. While Saskatchewan’s Code does not include a definition, it empowers its Commission to prevent and address systemic patterns of discrimination. Manitoba’s definition is more specific than Yukon’s in that it includes elements of “effect/impact over intent” and “pattern/series/continuing phenomena resulting in significant cumulative effects,” but is still missing other key elements from the list above. As such, I proposed that a re-formulation of section 12 include all six key elements, as well as a provision that empowers the Commission to tackle the issue of systemic discrimination specifically.

Amending the systemic discrimination provision of the Act is important because manifestations of systemic discrimination undoubtedly make their way into human rights complaints. Even in cases of more “overt” systemic discrimination (e.g. if a pattern of behaviour is apparent or a complainant has been able to track acts of discrimination and their cumulative effect over time), a clear definition of the term and all that it may entail will empower complainants as well as Commissions and Tribunals to better interpret and deal with the impacts of systemic discrimination. Moreover, giving Commissions the agency to address and combat systemic discrimination as part of their mandates may produce creative and productive results.

Through my in-depth research and broad survey of how systemic discrimination has been conceptualized by courts, legislatures, human rights commissions, and academics across Canada, I have identified a list of key features that I argue should be integrated into any legislation or body’s definition of the term. In so doing, these bodies will give courts, complainants, and the public a clearer idea of what systemic discrimination entails, and how we can go about dismantling it.

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