HIV/AIDS Policy & Law Review 13(1) — July 2008

Canadian HIV/AIDS Legal Network HIV/AIDS POLICY & LAW REVIEW

VOLUME 13, NUMBER 1, JULY 2008

Delivery past due: global precedent set under Canada’s Access to Medicines Regime

Four years to the month after Parliament passed a law to enable the supply of lower-cost generic medicines to developing countries in need, the first exports are finally about to happen. In this article, Richard Elliott provides an overview of recent developments under Canada’s Access to Medicines Regime (CAMR), and identifies key reforms needed to streamline the regime so that it can more easily be used to address public health problems in developing countries.

WTO rules and Canada’s law on exporting generics Inside Under the World Trade Organization’s (WTO’s) treaty on intellectual property, the Agreement on Trade-Related Aspects of Intellectual Thai Government re-launches Property Rights (TRIPS),1 member countries must grant exclusive pat- war on drugs 35 ent rights on medicines. But they retain the right to grant compulsory Canada: Legislation would impose licences, which legally authorize the production of lower-cost, generic mandatory minimum sentences versions of patented drugs in exchange for royalties paid to the patent- for drug offences 25 holder. Breaking the patent-holder’s monopoly and introducing competition brings down prices. U.K.: Developing guidance for TRIPS also states, however, that products made under compulsory HIV prosecutions 13 licences must be “predominantly for the supply of the domestic mar- Access to condoms in U.S. ket,” thereby limiting the use of compulsory licensing in one WTO prisons 20 member country to produce generic medicines predominantly or exclu- sively for export to any other country. This undermines the ability of Court strikes down restriction importing developing countries to use compulsory licensing effectively in Canada’s medical marijuana program 45 cont’d on page 5 HIV and human rights in U.N. drug control policy 40

Switzerland: Statement on sexual transmission of HIV by people on ART 37 Funding for this publication was provided by the Public Health Agency of Canada. HIV/AIDS POLICY & LAW REVIEW

Published by the Canadian HIV/AIDS Legal Network 1240 Bay Street, Suite 600 Toronto, Ontario Canada M5R 2A7 Tel: +1 416 595-1666 Fax: +1 416 595-0094 [email protected] www.aidslaw.ca

Providing analysis and summaries of current developments in HIV/AIDS-related policy and law, the HIV/AIDS Policy & Law Review promotes education and the exchange of information, ideas, and experiences from an international perspective. The editors welcome the submission of articles, commentaries and news stories.

Managing Editor: The Review has been published since 1994. Issues 1(1) to 5(2/3) were David Garmaise [email protected] published under the title Canadian HIV/AIDS Policy & Law Newsletter. Editor, Canadian Developments: Issues 5(4) to 9(2) were published under the title Canadian HIV/AIDS Alison Symington [email protected] Policy & Law Review. Editor, International Developments: Current and back issues of the Review are available via Richard Pearshouse [email protected] www.aidslaw.ca/review. Editor, HIV/AIDS in the Courts — Canada: Sandra Ka Hon Chu [email protected] For membership information, write to the address above or visit www.aidslaw.ca/joinus. Editor, HIV/AIDS in the Courts — International: Leah Utyasheva [email protected] Funding for this publication was provided by the Public Coordinator: Vajdon Sohaili Health Agency of Canada.

Translators: Roger Caron, Jean Dussault, Josée Dussault, The opinions expressed in this publication are those of Johanne Forget the authors/researchers and do not necessarily reflect the Layout: Liane Keightley official views of the Public Health Agency of Canada, the American Bar Association, or the Canadian HIV/AIDS Legal For the list of members of the Editorial Board of the HIV/AIDS Policy & Law Review, please visit www.aidslaw.ca/review. Network. About the Canadian HIV/AIDS Legal Network © Canadian HIV/AIDS Legal Network, 2008. We encourage the dissemination of the information contained in the Review and will The Canadian HIV/AIDS Legal Network (www.aidslaw.ca) promotes grant permission to reprint material, provided that proper credit is the human rights of people living with and vulnerable to HIV/AIDS, given. The editors kindly request a copy of any publication in which in Canada and internationally, through research, legal and policy material from the Review is used. analysis, education and community mobilization. The Legal Network is Canada’s leading advocacy organization working on the legal and ISSN 1712-624X human rights issues raised by HIV/AIDS.

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2 HIV/AIDS POLICY & LAW REVIEW CONTENTS

FEATURES Delivery past due: global precedent set under Canada’s Access to Medicines Regime 1 Developing guidance for HIV prosecutions: an example of harm reduction? 13 Access to condoms in U.S. prisons 20

CANADIAN DEVELOPMENTS Legislation imposing mandatory minimum sentences for drug offences passes second reading 25 Manitoba legislation would authorize testing for HIV without informed consent 27 Organ donation regulations limit donations from gay men 29 Complaint filed concerning judge’s conduct 30 Health Canada releases report on supervised injection facility 31 In brief 32 Changes to the Immigration and Refugee Protection Act proposed in 2008 Budget Independent review of prisons released Provincial funding announced for Ottawa harm reduction program Federal government diverts funding from community-based organizations to vaccine initiative

INTERNATIONAL DEVELOPMENTS Thailand: government re-launches war on drugs and people who use drugs 35 Switzerland: Statement on sexual transmission of HIV by people on ART 37 U.S.: PEPFAR reauthorization bills pass House, Senate committee 38 HIV and human rights in U.N. drug control policy: making inroads, barely 40 In brief 42 Russia denies HIV treatment to prisoner California: Governor vetoes another prison condom bill, but leaves door ajar Australia to legislate to remove same-sex discrimination ILO publishes digest of good legislative practices in Africa U.N. Secretary-General calls for an end to criminal law approaches to vulnerable populations

cont’d

VOLUME 13, NUMBER 1, JULY 2008 3 HIV/AIDS IN THE COURTS – CANADA Court strikes down restriction in Ottawa’s medical marijuana program 45 Refugee claimant’s identity as cross-dresser must be considered in assessing adequacy of state protection 47 Case of disclosure of HIV status helps to clarify privacy law in Ontario 48 HIV-positive woman’s appeal for absolute discharge dismissed on grounds of public safety 49 Criminal law and HIV transmission or exposure: seven new cases 50 In brief 53 Case of HIV-positive gay transvestite referred to new refugee panel for re-determination Application for judicial review denied for HIV-positive refugee applicant from Mexico Court rules that defamation not proved because reputation not “materially affected” Final charges against former director of Canadian Red Cross withdrawn

HIV/AIDS IN THE COURTS – INTERNATIONAL European Court of Human Rights rejects prisoner’s plea for prison needle exchange 56 South African High Court defends the right to water 59 Court says French government’s refusal to authorize adoption violates woman’s human rights 61 In brief 62 ECHR: Ukraine held responsible for inhuman and degrading treatment of HIV-positive prisoner Sweden: Man found guilty of infecting two women with HIV Nepal: Supreme Court makes landmark decisions on LGBTI rights and the right to confidentiality U.S.: Texan man acquitted in medical marijuana case Egypt: Court convicts men for “debauchery” Indian court rules HIV is a ground for divorce

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cont’d from page 1

as a tool to get lower-cost treatment daily, simplifies one of the first-line the 2003 WTO Decision but not for patients. combination regimens recommended required by the WTO Decision. The In August 2003, WTO members, by the World Health Organization Health Canada review process took under pressure from developing (WHO) for treating people living seven months; the product received countries and treatment activists, with HIV/AIDS.8 This combination approval in July 2006.9 On 10 adopted a General Council Decision did not previously exist. August 2006, shortly before the XVI waiving this restriction under certain MSF indicated that it would seek International AIDS Conference in conditions.2 In May 2004, following to use the CAMR to place an order Toronto, the WHO Prequalification an eight-month advocacy campaign for the Apotex product for use in one Programme, having reviewed the by civil society groups,3 both houses or more of its AIDS treatment proj- dossier submitted by Apotex to of the Parliament of Canada unani- ects in the field. Under the CAMR Health Canada, also gave its stamp of mously passed legislation amending and the terms of the underlying 2003 approval.10 the Patent Act 4 and the Food and WTO Decision, this would require However, by May 2007 — three Drugs Act to implement this 2003 at least some degree of cooperation years after the law was passed and WTO Decision.5 by the government of the develop- two years after it came into force — Canadian civil society orga- ing country into which MSF would not a single pill had yet been export- nizations succeeded in obtaining import the product. ed under the CAMR, in part because significant improvements to the of the apparent unwillingness of bill originally introduced by the any developing country eligible to government, but they warned that import under the CAMR to make the the remaining flaws could hinder requisite notifications to the WTO the usefulness of the legislation. or the Government of Canada.11 As Nonetheless, they said that they Three years after the law a result, MSF ultimately informed would support efforts to use it to ben- was passed and two years Apotex that it could not follow efit patients in developing countries.6 through on its original plan to place After further pressure from NGOs, after it came into force, an order for the product. the law and accompanying regula- not a single pill had yet Breakthroughs: Rwanda tions were brought into force one been exported under the year later, in May 2005.7 At the takes historic step, first request of international humanitar- CAMR. licence issued, order ian organization Médecins Sans placed Frontières (MSF), Canada’s largest generic pharmaceutical manu- Finally, in July 2007, almost four facturer, Apotex, Inc., produced years since the original WTO “Apo-Triavir,” a new fixed-dose Decision was adopted, and follow- combination of existing anti- The Apotex product was approved ing interventions by the Clinton retroviral AIDS medicines zidovu- by Health Canada as meeting the Foundation HIV/AIDS Initiative, dine, lamivudine and nevirapine same regulatory standards as a medi- Rwanda became the first — and to (AZT/3TC/NVP). cine intended for sale in the domes- date, only — country to notify the The combination of these three tic market, a condition imposed by WTO of its intention to import the medicines into one tablet, taken twice Canada’s legislation implementing Apotex product.12 Rwanda’s noti-

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fication stated that it anticipated In October 2007, Canada notified standing call to the government and importing up to 260 000 packs of the WTO of this compulsory licence to Parliament to reform the regime. 17 Apo-TriAvir. Rwanda’s notification having been issued. Fixing the flaws: the push was a necessary precondition for The Government of Rwanda sub- Apotex to pursue the process under sequently initiated an international to reform the CAMR Canadian law for obtaining a licence tendering process. Equipped with a The 2004 law that created the CAMR to manufacture the product legally for compulsory licence authorizing the required the federal Minister of export. legal production of Apo-TriAvir for Industry to review the law within two In response, Canadian health export to Rwanda, Apotex submit- years of it coming into force (i.e., activists expressed cautious optimism ted a bid to the Rwandan govern- May 2005), and to report back to about moving this important step ment quoting a price of US$0.195 Parliament shortly thereafter. closer to possible use of the CAMR, per tablet — meaning treatment with In August 2006, during the but noted that even if this one case this regimen would cost US$146 per International AIDS Conference in turned out to be successful, Canada patient per year, lower than the then- Toronto, the Minister of Health, still needed to reform its legislation if lowest price from a generic source responding to pressure, publicly com- there was to be any real likelihood of (US$176 per patient per year) report- mitted to speeding up the review and it being used again.13 ed publicly.18 to making necessary changes to make The following month, media it work.21 reports indicated — incorrectly, as As part of that review, in January it turned out — that Apotex had 2007 interested parties, including a succeeded in negotiating voluntary range of civil society groups, made licences with all the brand-name Canadian health advocates submissions to the Government 22 pharmaceutical companies hold- renewed their long- of Canada. Further submissions ing the relevant Canadian patents with recommendations for reform on the constituent products in the standing call to the were made three months later to a new generic fixed-dose combina- government and to Parliamentary committee at hearings tion, which licences would allow Parliament to reform the into the failure of the legislation to Apotex to export its generic product date to deliver on the pledge of great- to Rwanda.14 regime. er access to affordable medicines.23 In fact, in the end no voluntary An international expert consultation licences were issued, and in early also identified numerous aspects of September, Apotex proceeded to the CAMR that were of concern.24 file its application for a compulsory However, in a report finally licence with the Commissioner of On 7 May 2008, Apotex tabled in Parliament on Friday, 14 Patents, in accordance with the legis- announced that it had succeeded in December 2007 — six months late lation.15 the competition: The Rwandan gov- and on the last day Parliament was in On 19 September 2007, the ernment had decided to purchase the session before rising for an extended Commissioner issued the requested Apotex product.19 break — the Minister of Industry licence, authorizing Apotex to pro- Canadian health advocates wel- indicated the government’s view duce and export the quantity notified comed the announcement, but high- that it would be premature to bring by Rwanda, amounting to 15 600 000 lighted that this breakthrough came forward any amendments to CAMR. tablets over a period of up to two after four years and only as a result Instead, it planned to continue pub- years.16 (As treatment consists of two of the commitment of one company licizing the regime to developing tablets daily, this would amount to a and various civil society interveners countries.25 year’s course of treatment for more — hardly a sustainable process, and Health advocates criticized the than 21 000 patients, or two years’ one unlikely to be repeated unless the government for its failure to act, worth of treatment for half that num- CAMR process were drastically sim- stepped up their lobbying of indi- ber of people.) plified.20 They renewed their long- vidual Members of Parliament and

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began to approach members of the much more likely to be used repeat- any patented product, so as to be as opposition parties about the possibil- edly to address developing countries’ flexible as possible in responding to ity of bringing amendments forward public health needs. The proposals needs identified by developing coun- through a private member’s bill. for reform advanced by civil society tries themselves. groups are summarized here. Remedying the regime: Given the scope of the original WTO Decision, an amended Eliminate limits on products proposals for reform Canadian law should also clearly state subject to compulsory licensing The ostensible purpose of the CAMR that it applies to active pharmaceuti- is to facilitate the export of lower- Currently, the legislative provisions cal ingredients of medicines (rather cost, generic versions of medicines constituting the CAMR include a lim- than simply the finished product), and manufactured in Canada to eligible ited list of pharmaceutical products any diagnostic kits needed for the use developing countries. The one suc- covered by the regime, consisting pri- of a pharmaceutical product. cessful use of the CAMR, which was marily of drugs on the WHO’s Model Avoid a discriminatory the result of determined and persis- List of Essential Medicines (as it double-standard against tent effort over several years, was stood in early 2004 when the law was non-WTO countries achieved despite the disincentives enacted by Parliament) plus most of built into the current regime — hard- the other anti-retroviral AIDS drugs Currently, the CAMR treats all “least ly proof that the regime is workable. then under patent in Canada.28 developed countries” (recognized as Consequently, Canadian civil An order by Canada’s federal such by the United Nations) and all society advocates have identified Cabinet is required to add any product developing countries belonging to the numerous reforms aimed at mak- not already on the list (which step has WTO as potentially eligible importing the regime more user-friendly been taken twice since the legislation ers of Canadian-made generics. for developing countries (i.e., the was originally enacted, including to However, the CAMR creates unjusti- potential purchasers) and for generic add the AZT/3TC/NVP combination fied hurdles for developing countries manufacturers (i.e., the potential sup- product developed by Apotex). that are not WTO members (and that pliers) — the two parties that must are not “least developed countries”). use the CAMR if patients in develop- Specifically, in order to be added ing countries are to benefit. to the list of eligible importers of The most concrete proposals have Canadian-made generics, a non-WTO been prepared by a broad-based developing country must declare “an civil society coalition, the Global The underlying 2003 WTO emergency or other circumstances Treatment Access Group (GTAG),26 Decision imposes no of extreme urgency,” and must also and by the Canadian HIV/AIDS agree that the imported product requirement to limit the Legal Network, which fleshed out will not be used for “commercial the GTAG proposals in much more list of medications. purposes” — a vague term which technical detail — including sample is undefined and could conceivably statutory amendments.27 be interpreted to mean interference A core recommendation of the with distribution of the product in the civil society groups was to go beyond importing country through private, merely tinkering with the CAMR for-profit pharmacies. in the form of minor adjustments. However, the underlying 2003 Contrary to oft-repeated and inac- Rather, the groups have urged the WTO Decision imposes no require- curate claims, there is no require- government to replace the existing ment to limit the list of medications. ment on WTO member countries to CAMR process for licensing the pro- The Canadian law should be amend- use compulsory licensing only in the duction and exportation of generic ed to remove the “gatekeeping” func- event of public health crises or other medicines, which is based on the tion of this list and of the Cabinet, emergencies (despite the best efforts underlying 2003 WTO Decision, with and should instead clarify that a by the United States and some other a simpler procedure that would be compulsory licence may be issued on high income countries to include such

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a provision). To impose this require- and understood by developing coun- Rwanda is the only country to have ment on non-WTO countries repre- tries) is sufficient. notified the WTO that it intends to sents a double standard and an act of An alternative would be to sim- use the mechanism of the 2003 WTO bad faith. ply leave it to the importing country Decision. to determine the standards to be The CAMR legislation should be Eliminate additional barriers met (which could very well include amended to remove this requirement to NGO procurement accepting the approval of a well- of advance disclosure as a prerequi- Currently, the CAMR requires that developed and stringent drug regula- site to getting a compulsory licence. a non-governmental organization tory authority). This creates greater The law could instead require simply (e.g., MSF) purchasing Canadian- flexibility and respects better the that a generic manufacturer, when made generics for importation into an autonomy of developing countries, first requesting a voluntary licence eligible country must have the “per- while providing quality assurance. from the patent-holder(s), state that it mission” of the country — although will disclose the name of the country Eliminate requirement of nowhere is this term defined. following receipt of the licence and advance disclosure of importing This is an unnecessary hurdle and will pay the applicable royalty rate country should be eliminated. If the medicine pursuant to the existing formula — in question meets the requirements Under the CAMR’s current provi- and that, if this were not acceptable for approval that are established by sions, before a compulsory licence to the patent-holder(s), the generic the country’s drug regulatory author- can be issued to a generic manufac- manufacturer would then be able to ity — be it a review conducted by the turer, it must first attempt to nego- proceed to apply for a compulsory country’s own technical experts or, as tiate a voluntary licence with the license. is often the case with many develop- patent-holder — and in so doing, it ing countries, relying on approval by must have disclosed to the patent- the WHO Prequalification Project or holder(s), for a period of at least 30 the drug regulatory agency in a more days, the name and specific quantity highly-resourced country — that of the product it wishes to produce should suffice. for export, and also the name of the To date, Rwanda is the destination country that seeks to Eliminate requirement of import the generic product. only country to have Health Canada approval as This means that, even before the only one acceptable notified the WTO that generic manufacturer can give the The CAMR currently prohibits the importing country any guarantee that it intends to use the Commissioner of Patents from grant- it can legally supply the product, mechanism of the 2003 ing a compulsory licence permitting the country will likely face pres- WTO Decision. exports to a generic manufacture sure from the patent-holder(s) and unless Health Canada has confirmed any governments opposed to the use the product meets all the same regu- of compulsory licensing (e.g., the latory standards as products approved United States) to refrain from going for sale in Canada. The principle of this route. ensuring the quality of medicines is a This concern cannot be dis- good one. missed lightly, given the history of Of course, such an approach However, the current approach such pressure — including, in some would not remove the possibility is unnecessarily inflexible. Instead, instances, threats of trade sanctions of retaliation against countries that the CAMR could specify that either or refusal by patent-holding com- make use of compulsory licensing. It Health Canada approval or approval panies to register existing or new would, however, at least eliminate an from the WHO’s Prequalification medicines in a country. This is likely early window period during which a Project (a standard widely referenced one factor explaining why, to date, country risks retaliation in advance of

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any certainty of obtaining the generic other countries, at least half of whom having the courts revoke, or vary the medicine it seeks. are least-developed countries, the terms of, a compulsory licence issued 2003 WTO Decision allows that to a generic manufacturer.30 These Eliminate negotiations for country to re-export, to the other provisions create additional disincen- voluntary licences in urgent developing or least-developed coun- tives for generic manufacturers to situations try members of that regional bloc, use CAMR, and are not based on the At the moment, the CAMR requires a generic pharmaceutical products that 2003 WTO Decision. generic manufacturer to first attempt have been imported under a compul- The potential for vexatious litiga- to negotiate with the patent-holder(s) sory licensing process. tion by patent-holders to block or for a voluntary licence to produce the However, the current wording rescind compulsory licences issued medicine for export. This reflects a of the CAMR’s provisions creates to generic manufacturers cannot be requirement under Article 31 of the uncertainty as to whether this would dismissed, in light of the long and WTO’s TRIPS Agreement. Yet, that be allowed under the terms of a com- litigious history between the patented article also provides that a country’s pulsory licence issued to a Canadian and generic pharmaceutical indus- law can dispense with this require- generic manufacturer — it could tries. These provisions should be ment in cases of “emergency or other arguably be grounds for terminating removed. circumstances of extreme urgency,” the compulsory licence.29 Further, it Streamline CAMR: the in cases of public non-commercial is unclear what the applicable royalty “one-licence solution” use of the product in question, or rate would be in such a case. when a compulsory licence is being While the reforms outlined above issued to remedy a practice by the would eliminate certain hurdles cur- patent owner that has been found by rently marring the CAMR, what is a judicial or administrative process to required is more fundamental reform. be anti-competitive. So, it is odd that The experience to date with the The 2003 WTO Decision Canada’s legislation does not take CAMR has highlighted that the cen- full advantage of this undisputed flex- is “neither expeditious, nor tral problem has to do with the basic ibility already found in TRIPS. The a solution.” process for licensing the production CAMR should be amended to elimi- and exportation of generics — and nate the negotiating requirement. that the problem is rooted in the original 2003 WTO Decision itself. Abolish arbitrary two-year time It is instructive that, more than limit on compulsory licences four years after the WTO General Without any foundation in any WTO The CAMR needs to be reformed Council adopted that Decision, legal instrument, the CAMR arbi- to clearly permit the issuing of a Rwanda remains the sole country to trarily imposes a two-year limit on compulsory license to supply, under have indicated its intent to use the the length of any compulsory licence a simple process and with a single mechanism.31 MSF’s experience, as issued under its provisions, thus tying licence, a number of developing illustrated through its hands-on effort the hands of purchasing countries and countries within a regional trade to use the Canadian legislation to generic manufacturers unnecessarily. group, as allowed under the 2003 obtain an inexpensive medicine to This limitation should be removed. WTO Decision. treat patients living with HIV/AIDS, has led it to conclude that the 2003 Clarify option for re-exportation Eliminate extra opportunities WTO Decision is “neither expedi- from importing country within for litigation by patent-holders tious, nor a solution.”32 regional trading bloc Inserted at the last minute, some In May 2008, having finally suc- Where a developing or least-devel- provisions in the CAMR create addi- ceeded in making the first — and to oped WTO member country is party tional opportunities for patent-holders date, only — use of CAMR, generic to a regional trade agreement with to initiate litigation with a view to manufacturer Apotex repeated that

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it was not interested in attempting to As an alternative, if the law main- turer can guarantee delivery of the use the regime again absent signifi- tained a requirement that a given medicine. cant changes.33 generic manufacturer had to make Furthermore, it would allow for If Canada’s Parliament wishes the a specific application for a licence greater flexibility for developing CAMR to be a useable tool to assist on a particular product, that licence countries, which would be able to developing countries, it will need to could be granted as of right, rather adjust over time the quantities of a rethink the basics of the 2003 WTO than requiring the manufacturer to product that it requires, rather than, Decision and be willing to streamline apply for a separate licence to cover as is the case now with the CAMR the CAMR dramatically. every separate order of a drug. The and the 2003 WTO Decision, hav- The WTO Decision, as embodied licence would authorize the company ing to fix a quantity in advance and in the CAMR, creates unnecessary to export the medicine in question to then having the generic manufac- hurdles for generic companies and any eligible country specified in the turer apply for a specific compulsory developing countries to use com- legislation. licence authorizing production of just pulsory licensing — and even if Whichever approach to granting a that amount. a compulsory licence is obtained licence were used, one of its condi- to produce a given medicine, the tions would be to require the generic CAMR authorizes exportation only of manufacturer to pay royalties to the a pre-determined quantity and only to patent-holder(s). This could be done a single country, forcing a repeat of with the formula for calculating roy- the process for any other drug orders alties that is already in the CAMR. The mechanism set forth from the same or other countries. Having obtained such a licence at in the 2003 WTO Decision The legal process must be more user- the outset, the generic manufacturer is not the only option friendly for developing countries and would be equipped to negotiate mul- generic manufacturers. tiple contracts with multiple coun- open to WTO member This basic premise is the root of tries, rather than separate agreements countries. the “one-licence solution” advo- with each country and for specific cated by Canadian civil society pre-determined quantities. The roy- organizations. Put simply, a generic alties payable would be based on manufacturer would require but one whatever contracts the generic manu- compulsory licence. That single facturer succeeds in negotiating; it licence should authorize the manufac- would be a condition of the licence The one-licence solution is dis- ture and export any pharmaceutical that these details be reported periodi- tinct from the mechanism set forth in product patented in Canada, not just cally when remitting the royalty pay- the 2003 WTO Decision. However, those on CAMR’s current limited ments. that mechanism, as embodied in the list. The licence should be obtainable This simplified process, allow- CAMR and in the law of several oth- before any particular country or spe- ing for multi-country, larger-volume er jurisdictions, is not the only option cific quantity of the pharmaceutical supply contracts, could achieve con- open to WTO member countries. product in question has been deter- siderable economies of scale, creat- The 2003 WTO Decision explicitly mined. ing further incentives for generic states that it is “without prejudice to Such legal authorization could manufacturers to participate, and the rights, obligations and flexibilities be achieved most directly, and with also further reducing the final price that [WTO] Members have under the the least transaction cost, by simply of products to developing countries. provisions of the TRIPS Agreement enacting a specific section of the Such a process would also eliminate … and to their interpretation.”34 Patent Act that statutorily authorizes the need for any period of attempting In 2002, a number of developing the generic production of any pat- to negotiate voluntary licences with countries and various NGOs, with ented pharmaceutical product solely patent-holders — and the accompa- the support of the WHO, had pro- for purposes of export to any eligible nying exposure of a country to posed that another part of the TRIPS country specified in the legislation. pressure before the generic manufac- Agreement (Article 30) could provide

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a basis for addressing the problem the full, the provisions in the TRIPS 1 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), 15 April 1994, Annex 1C of that the 2003 WTO Decision, as it Agreement, which provide flexibility the Marrakesh Agreement Establishing The World Trade was ultimately adopted, was sup- for this purpose.”38 Organization, Legal Instruments — Results of the Uruguay Round, Vol. 31, 33 I.L.M. 1197 (1994). posed to solve — namely, the restric- Conclusion 2 WTO General Council, Decision on the Implementation tions (under TRIPS Article 31) on of Paragraph 6 of the Doha Declaration on the TRIPS the use of compulsory licensing for Canada was one of the first coun- Agreement and Public Health, WTO Doc. IP/C/W/40 (30 August 2003) [“2003 WTO Decision”], available via 35 export. TRIPS Article 30 states: tries in the world to implement the http://docs-online.wto.org. For more detailed discussion, see: R. Elliott. “Delivering on the pledge: global access 2003 WTO Decision, has witnessed to medicines, WTO rules and reforming Canada’s law Exceptions to Rights Conferred sustained efforts to use its domestic on compulsory licensing for export,” McGill International Journal of Sustainable Development Law and Policy 3(1) Members may provide limited excep- regime to implement the Decision, (2007): 23, available via www.aidslaw.ca/gtag. tions to the exclusive rights conferred and has seen the only use of any such 3 For a more detailed discussion of the campaigning by a patent, provided that such excep- mechanism to date anywhere in the efforts, see R. Elliott, “TRIPS from Doha to Cancún … to Ottawa: global developments in access to treatment tions do not unreasonably conflict world, four years after it was created. and Canada’s Bill C-56,” Canadian HIV/AIDS Policy & Law with a normal exploitation of the pat- Canada is, therefore, well Review 8(3) (2003): 1; R. Elliott, “Steps forward, backward, and sideways: Canada’s bill on exporting generic phar- ent and do not unreasonably prejudice positioned to show leadership in maceuticals,” Canadian HIV/AIDS Policy & Law Review 9(3) the legitimate interests of the patent acknowledging that the current (2004): 15; both available via www.aidslaw.ca/review; R. Elliott, “Delivering on the pledge.” owner, taking account of the legiti- approach does not offer the rapid, 4 Patent Act, RSC 1985, c. P-4. Available via mate interests of third parties. flexible, sustainable solution that is http://laws.justice.gc.ca. needed and was promised, and to 5 An Act to Amend the Patent Act and the Food and Drugs As pointed out by the industry asso- legislate instead a different approach Act (Jean Chrétien Pledge to Africa), S.C. 2004, c. 23, at www.canlii.org/ca/as/2004/c23/. For a quick summary, see ciation representing generic manufac- that stands a greater chance of being www.parl.gc.ca/37/3/parlbus/chambus/house/bills/summaries/c9-e.pdf. In addition to Canada, as of May 2008, turers, workable for developing countries a few other jurisdictions — Norway, India, the European and generic manufacturers. Union, Netherlands, South Korea and China — had the intent of the [2003 WTO] Decision adopted legislation, regulations, policy directives or other Legally, Canada could replace the instruments that in some way, with varying degrees of is that if an eligible importing member current CAMR with a streamlined specificity and restrictiveness, implement the 2003 WTO seeks drugs under the system, a rapid Decision to permit compulsory licensing of patented process along the lines of what has pharmaceuticals for export to certain eligible countries. response is important and consistent been proposed here, and could defend For additional information and materials, see the com- with the Decision (see preamble). pilation by Knowledge Ecology International (formerly it against challenge at the WTO under Any conflict with normal exploita- Consumer Project on Technology), “Legislation to Allow the rubric of TRIPS Article 30. for the Export of Pharmaceuticals Under Compulsory tion of a patent, if consistent with that License”, at objective, cannot be unreasonable. The question, therefore, is not one www.cptech.org/ip/health/cl/cl-export-legislation.html. The eligible importing member or its of legal incapacity. The question is: 6 For more detailed discussion, see: R. Elliott, “Pledges and pitfalls: Canada’s legislation on compulsory licensing citizens are third parties with legiti- Will Canada’s parliamentarians have of pharmaceuticals for export,” International Journal of mate interests.36 the political will to take the action Intellectual Property Management 1(1/2) (2006): 94–112, available via www.aidslaw.ca/gtag; Canadian HIV/AIDS that is needed to help increase access Legal Network and Interagency Coalition on AIDS and It should be recalled as well that to affordable AIDS or other treatment Development, The Jean Chrétien Pledge to Africa Act and Its Impact on Improving Access to HIV/AIDS Treatment in TRIPS Article 30 is open-ended, and for tens or hundreds of thousands of Developing Countries, August 2006, available via that TRIPS also states explicitly that people in the developing world? www.aidslaw.ca/gtag. WTO “[m]embers shall be free to 7 Industry Canada, “Coming into force of the Jean Chrétien Pledge to Africa Act, ” news release and back- determine the appropriate method of – Richard Elliott grounder, Ottawa, 13 May 2005. Available via implementing the provisions of this http://www.ic.gc.ca. See also, Use of Patented Products for International Humanitarian Purposes Regulations, S.O.R. Agreement within their own legal 2005/243; Food and Drugs Regulations (1402 — Drugs for 37 Developing Countries), S.O.R 2005/141; Medical Devices system and practice.” Regulations (Developing Countries), S.O.R. 2005/142, In the 2001 Doha Declaration, Richard Elliott ([email protected]) all in the Canada Gazette (Part II), Vol. 139 (No. 11), WTO members unanimously agreed is Executive Director of the Canadian June 1, 2005, all available via http://canadagazette.gc.ca/ HIV/AIDS Legal Network. For more infor- partII/2005/20050601/html/index-e.html. For more infor- that TRIPS should be interpreted and mation about what the government has since labelled mation on the CAMR, see the Government “Canada’s Access to Medicines Regime,” see implemented so as to promote access of Canada’s website at www.camr.gc.ca, www.camr.gc.ca. to medicines and reaffirmed “the and materials from civil society groups via 8 For information about the product “Apo-TriAvir,” see: right of WTO Members to use, to www.aidslaw.ca/gtag. www.apotex.com/apotriavir.

VOLUME 13, NUMBER 1, JULY 2008 11 Delivery past due

9 Médecins Sans Frontières, Neither Expeditious, Nor a 17 Government of Canada, “Notification under paragraph camr_rcam_report_rapport_e.html. th Solution: The WTO August 30 Decision Is Unworkable — 2(C) of the Decision of 30 August 2003 on the imple- 26 An Illustration Through Canada’s Jean Chrétien Pledge to mentation of paragraph 6 of the Doha Declaration on Global Treatment Access Group, Delivering on the Africa, August 2006, at p. 6. At www.accessmed-msf. the TRIPS Agreement and Public Health,” WTO Doc. Pledge: Reforming Canada’s Access to Medicines Regime, org/fileadmin/user_upload/medinnov_accesspatents/ IP/N/10/CAN/1, 5 October 2007. Available via Submission to the Government of Canada, January 2007. WTOaugustreport.pdf. http://docs-online.wto.org. Available via www.aidslaw.ca/gtag. 27 10 B. Clark, Vice-President, Apotex, Inc., presentation at 18 Médecins Sans Frontières, Untangling the Web of Price Canadian HIV/AIDS Legal Network, Getting the Regime Right: Compulsory Licensing of Pharmaceuticals for Export, satellite session, “Commitment compromised?: WTO Reductions (10th ed.), July 2007 (last updated March 2008). Brief to the House of Commons Standing Committee on rules and Canada’s law on compulsory licensing — the At www.accessmed-msf.org/main/hiv-aids/ Industry, Science and Technology regarding Canada’s Access continuing challenge of scaling up treatment access,” price-guide-to-aids-drugs. XVI International AIDS Conference, Toronto, 15 August, to Medicines Regime, 18 April 2007. Available via 19 2006, on file. For information regarding the WHO Apotex, Inc., “Canadian company receives final tender www.aidslaw.ca/gtag. approval from Rwanda for vital AIDS drug,” news release, Prequalification Programme, and current lists of prequali- 28 See Patent Act, Schedule 1, at http://laws.justice.gc.ca/ Toronto, 7 May 2008, on file. fied products and producers, see: en/showdoc/cs/P-4/sc:1//en#anchorsc:1. http://healthtech.who.int/pq/. 20 Canadian HIV/AIDS Legal Network, “Canada finally 29 Patent Act, s. 21.14(g). 11 For an overview of these efforts, see Médecins Sans poised to deliver on promise of affordable medicines to Frontières, Neither Expeditious.. developing countries?” news release, Toronto, 7 May 2008. 30 Ibid., at ss. 21.08(4)–(7), 21.14, and 21.17. Available via www.aidslaw.ca/media. 12 Government of Rwanda, “Notification under para- 31 WTO, “TRIPS and Public Health: Dedicated Webpage 21 graph 2(a) of the Decision of 30 August 2003 on the I. Teotonio, “Clement vows to get cheap drugs flowing,” for Notifications.” At www.wto.org/english/tratop_e/ Implementation of Paragraph 6 of the Doha Declaration Toronto Star, 16 August 2006, p. A1. trips_e/public_health_e.htm. on the TRIPS Agreement and Public Health,” WTO Doc. 22 For the complete text of written submissions, see 32 IP/N/9/RWA/1, 19 July 2007. Available via Médecins Sans Frontières, Neither Expeditious. http://camr-rcam.hc-sc.gc.ca/review-reviser/index_e.html. http://docs-online.wto.org. 33 U. Gandhi, “Supplying generic AIDS drug called pricey 23 For the committee’s summary of issues raised before 13 Canadian HIV/AIDS Legal Network, “Rwanda first process,” The Globe and Mail, 8 May 2008. it, see House of Commons Standing Committee on to try buying affordable AIDS drug from Canada using 34 Industry, Science and Technology, Letter to the Hon. 2003 WTO Decision at para. 9. Access to Medicines Regime.” news release, Toronto, 20 Maxime Bernier, Minister of Industry, 14 May 2007, and July 2007. Available via www.aidslaw.ca/media. 35 See WHO, “Statement by the Representative of the accompanying summary. At http://cmte.parl.gc.ca/ World Health Organization,” WTO Council for TRIPS, 17 14 S. Ubelacker, “Canada’s untapped Access to Medicines Content/HOC/committee/391/indu/webdoc/ September 2002. At www.who.int/mediacentre/trips/en. program to export first AIDS drug,” Canadian Press, 8 wd2967322/391_INDU_Letter/391_INDU_RelDoc_ August 2007; T. Talaga, “AIDS drugs fiasco a tale of red PDF-e.pdf. 36 Canadian Generic Pharmaceutical Association, tape,” Toronto Star, 9 August 2007; L. Priest, “Canadian Canada’s Access to Medicines Regime Consultation Paper 24 Canadian HIV/AIDS Legal Network and North-South companies agree to share generic AIDS drugs with — Comments by the Canadian Generic Pharmaceutical Institute, Access to Medicines and Intellectual Property: Rwanda,” The Globe and Mail, 9 August 2007. Association, 24 January 2007 at p. 7. Available via An International Expert Meeting on Canada’s Access to www.canadiangenerics.ca, www.camr.gc.ca. 15 Apotex, Inc., “Application pursuant to Section 21.04 Medicines Regime, Global Developments, and New Strategies of the Patent Act,” 4 September 2007. Available via for Improving Access – Meeting Report, Ottawa, 19–21 37 TRIPS, Article 1(1). April 2007. Available via: http://strategis.ic.gc.ca/sc_mrksv/cipo/jcpa/p4-e.html. 38 th www.aidslaw.ca/gtag, www.nsi-ins.ca. 4 WTO Ministerial Conference, Declaration on the 16 Commissioner of Patents (Canadian Intellectual TRIPS Agreement and Public Health, 14 November 2001, Property Office), “Authorization Under Section 21.04 of 25 Government of Canada, Report on the Statutory Review WTO Doc. WT/MIN(01)/DEC/2, at para. 4. At the Patent Act,” 19 September 2007. Available via of Sections 21.01 to 21.19 of the Patent Act, 14 December www.wto.org/english/thewto_e/minist_e/min01_e/ http://strategis.ic.gc.ca/sc_mrksv/cipo/jcpa/p4-e.html. 2007. At http://camr-rcam.hc-sc.gc.ca/review-reviser/ mindecl_trips_e.htm.

12 HIV/AIDS POLICY & LAW REVIEW Developing guidance for HIV prosecutions: an example of harm reduction?

Extensive discussion of the global trend towards the prosecution of individuals for HIV transmission has tended to focus on arguments of principle for or against such prosecutions. There has been less examination of how, where prosecutions are taking place, the community, the voluntary sector and relevant professional bodies (hereinafter the “HIV sector”) can mitigate ensuing harm and maximise fairness and understanding in the criminal justice process. In England and Wales, where prosecutions for reckless HIV transmission have been taking place since 2003, the HIV sector persuaded the Crown Prosecution Service (CPS) to consult on the production of Legal Guidance for CPS prosecutors and caseworkers (hereinafter “Guidance”) in this area of law, as well as an accompanying Policy Statement.1 In this article, Yusef Azad describes both the process and the outcome, and attempts an initial assessment of whether this intervention has benefited people living with HIV.2

The law in England and aware of the risk of so doing con- to the risk of HIV transmission a Wales in relation to stituted recklessness; that a possible crime? prosecution of HIV defence was that the person infected In July 2004 the National AIDS transmission had consented to the risk of that Trust (NAT) and the Terrence infection occurring; but that such Higgins Trust (THT), two key NGOs In an earlier article for the HIV/AIDS consent could not be inferred simply in the U.K. HIV sector, convened a Policy & Law Review, Matthew from the fact of having unprotected seminar to discuss how the sector Weait and I set out the application sex, but rather had to be on the basis might best respond to the prosecu- of the law in England and Wales to of the infected person’s specific tions. Participants included com- HIV transmission as it had emerged knowledge of the defendant’s HIV- munity activists, voluntary sector from the four cases which had at positive status. representatives, clinicians, academic that point come to court and, in par- The two Court of Appeal judg- researchers and lawyers. There was ticular, as had been set out in two ments left many key questions particular concern about the many Court of Appeal judgments.3 In unanswered for people living with issues where there was no clarity as summary, since 2003, Section 20 of HIV, faced for the first time with the to how the law applied. This is not the Offences Against the Person Act prospect of police investigation and surprising given a nineteenth-century 1861 (OAPA 1861) has been used possible prosecution if they passed law was being used to prosecute to prosecute reckless HIV transmis- on HIV to another person. Amongst these cases, a law which had certain- sion as serious bodily harm. To date the areas of concern and uncertainty ly not been drafted with HIV (or (March 2008), there have been 13 were: What sort of sexual behaviours any other disease) transmission in prosecutions under Section 20, 10 of will the courts consider “reckless” mind. which have resulted in conviction and for the purposes of HIV transmis- Guidance for clinicians, for HIV three in acquittal. Prosecutions for sion? Is condom use a defence? Can support organisations and for people intentional transmission are also pos- transmission of other infections be living with HIV were all identified sible under section 18 of the OAPA prosecuted or is this only about HIV? as priorities, as was engagement 1861, but none has as yet taken What knowledge of one’s HIV status with the media. But clarity as to the place.4 and infectiousness is necessary for detailed circumstances of prosecu- The Court of Appeal made clear one to be considered reckless (the tions could only be secured from the that HIV infection was a serious second man convicted had never had CPS itself. There was agreement that harm; that causing such harm whilst an HIV test)? Is exposing someone the CPS should be approached with

VOLUME 13, NUMBER 1, JULY 2008 13 Developing guidance for HIV prosecutions

a request for clarity and guidance in affected by HIV in the UK (gay and and guidance was submitted to the this area of law. African), and the need to ensure pros- Director of Public Prosecutions and By contrast, there was at the ecutions were conducted in a non- Law Officers for final clearance, and seminar, and there continues to be discriminatory manner and with a then publication. in the HIV sector, wariness about good understanding of the biological The working group for this con- attempting to persuade Parliament and social facts around HIV. sultation process included, from the and government of the need to amend The letter was very deliber- HIV sector, representatives from the law and end prosecutions for ately copied to the Chair of the NAT (the author), THT, the U.K. the reckless transmission of disease. Commission for Racial Equality. Coalition of People living with HIV Newspapers reported in 2006 that This brought a prompt response and a and AIDS, the African HIV Policy the Labour Government had in its commitment to engage with the HIV Network and a senior clinician repre- then nine years of power created over sector in a consultation process to senting the British HIV Association. 3000 new criminal offences, twice identify appropriate policy and guid- In addition, there were a number the number of the previous Tory ance for prosecutors. of CPS officials, someone from the administration.5 The fashion, in other Metropolitan Police, and representa- words, is not to decriminalize any- tives of both the Ministry of Justice thing, and there was a consensus that (the department’s current title) and inviting legislative review of HIV the Department of Health. The group transmission carried a serious risk in The HIV sector advised worked both through meetings and the current political climate of mak- email correspondence. Four meet- and persuaded but, in ing matters worse rather than better. ings were held in total — three in the end, were not asked advance of the public consultation Consultation process to agree any policy or and one soon after the consultation Recent CPS practice encouraged a period had closed. view that there might be willing- guidance. Two points should be stressed. ness to work with the HIV sector on First, the final policy and guidance guidance for prosecutors in this new was the responsibility of the CPS area of law. Since 2002, a process of alone. The HIV sector advised and public consultation by the CPS, with persuaded but, in the end, were not the support also of an expert working The process had all of the key ele- asked to agree any policy or guid- group of “practitioners,” had been ments which, according to the CPS, ance. This was important. The rep- used to agree policy and guidance in attend all their consultation exercises resentatives from the HIV sector on a number of areas of social sensitiv- of this sort — a working group was the working group are all opposed in ity, including homophobic crime, established with key community principle to the prosecution of reck- domestic violence, and racial and stakeholders; it was made clear that less HIV transmission. It is one thing religious hatred.6 the final policy and guidance would to advise on prosecution guidance to Initial attempts to persuade the be that of the CPS alone, albeit minimise harm and quite another to CPS of the importance of the issue “community informed”; a draft of the own and author it. Any requirement met with no success. This changed policy and guidance was produced to agree would have produced no end in October 2004 when the chief for discussion and refinement within product at all, and thus an opportu- executives of NAT and THT wrote the working group and then sent out nity to influence for the better would directly to the Director of Public for a three-month public consultation have been lost. Prosecutions, head of the CPS, draw- process; qualitative exercises were The second point is that the CPS ing his attention to this new area of held to complement the discussion could not question the interpreta- prosecution, the fact that the first process;7 based on the consultation tion of the law as set out in the two three people convicted were all responses, a revised draft was pro- Court of Appeal judgments. There is African migrants, the social vulner- duced for further discussion with a “public interest” test for prosecu- ability of the communities most the working group; and the policy tions, and there were early attempts

14 HIV/AIDS POLICY & LAW REVIEW Developing guidance for HIV prosecutions

to argue that given the claimed pubic A key development which ing the ability to understand fully health harm, it was not in the public occurred during the course of the behavioural messages. Of course, interest to prosecute at all. It became consultation was the growing disquiet such points had been made by others, clear, however, that the public inter- with respect to how scientific evi- but a doctor’s voice caries weight and est test was in relation to whether dence and, in particular, phylogenetic there is real value of making as much or not a given individual should be analysis had been used by the prose- common cause as possible with HIV prosecuted and was not about giving cution ostensibly to “prove” responsi- clinicians in addressing prosecution the CPS an effective public policy bility for infection. The first effective issues. discretion to overrule the courts and challenge from an expert virologist Whilst normally the published Parliament. Inevitably, engaging to this misuse of evidence took place government response should have the CPS on guidance for prosecutors in August 2006 in a case at Kingston occurred three months after the close meant managing expectations within Crown Court and resulted in the first of the consultation period (which the HIV sector — i.e., this was never acquittal in one of these cases. In would have been March 2007), the going to be about ending prosecu- February 2007, NAT with NAM8 and CPS actually spent most of 2007 tions. a number of the experts involved deliberating internally on the con- One of the earliest points made to published “HIV Forensics,” which set sultation responses and the evidence the CPS was that it was discrimina- out the value and limitations of phy- from the clinicians working group. tory to single out HIV transmission logenetic analysis in prosecutions for It was only in the Autumn of 2007 alone for prosecution and not any reckless HIV transmission.9 that a new draft emerged for consid- other serious communicable disease. eration by the community working The CPS agreed to include within group. its terms of reference the sexual It was immediately apparent why transmission of any serious infec- the process had taken so long: The tion. Thus, ironically perhaps, the The arguments against documents had been completely result of the HIV sector’s concern prosecutions for reckless rewritten. They were, however, that HIV should not be stigmatized much improved, and input from the was that the CPS developed guidance transmission of disease working group in the final months for the prosecution of a wider group were not wasted. The resulted in the vast majority of the of infections, broadening the scope of group’s suggestions being accepted the consultation. (There has not yet force of these arguments and included. The Guidance docu- been a prosecution for any infection helped to secure a minimal ment and the Policy Statement were other than HIV.) take on the scope for published on 14 March 2008 on the The public consultation itself, CPS website. which took place from September prosecutions. to November 2006, excited great Content of the Guidance interest and resulted in over 60 sub- The CPS concluded that attempting missions, almost all of which set to set down detailed criteria for pros- out arguments against prosecutions ecution for all possibly relevant sexu- for HIV transmission and identified In response, the CPS also estab- ally transmitted infections, with their issues that had to be borne in mind lished a separate clinicians working varying degrees of seriousness and in any prosecution. Although it was group. This group made an impor- modes of transmission, was impos- not in the CPS’s power to end pros- tant contribution, both confirming the sible. As a result, the Guidance is ecutions completely, in my view the arguments made on the limitations generic — the reader will note imme- arguments against prosecutions were of the scientific evidence but also diately that neither HIV nor any other not wasted. I believe that the force making helpful points including, for infection is mentioned by name. of these arguments helped to secure example, on the need to be aware of The following is a discussion of a minimal take on the scope for pros- varying stages of infectiousness and some of the key issues addressed in ecutions. on the shock of diagnosis undermin- the Guidance. Readers are encour-

VOLUME 13, NUMBER 1, JULY 2008 15 Developing guidance for HIV prosecutions

aged to go directly to the two CPS in relation to HIV will ordinarily be were potentially infectious to others documents in question to consider phylogenetic analysis of HIV samples if they engaged in unprotected sexual their content in more detail. Whilst from complainant and defendant. activity.” The implication is that the interpretation in this article is the In summary, the scientific evi- someone who “should” or “ought to” author’s alone, it reflects the shared dence alone cannot conclusively have known” that they were or could initial understanding of the CPS prove the responsibility of the defen- be infected cannot be prosecuted documents amongst colleagues in dant for the complainant’s infection, when actual, subjective knowledge of the HIV sector. It remains to be seen but it has to be part of any prosecu- infection is absent.10 whether prosecution practice will be tion case. This position might be The Guidance states that the “best, consistent with this interpretation. somewhat paradoxical, but it reflects and usual, evidence” of such actual both the importance and the limita- knowledge is a medical diagnosis Scientific evidence and infection tions of the scientific evidence, and — i.e., “evidence to prove that the The Guidance makes clear that in all has been central to the recent decline defendant had been tested, and had cases, and even where the defendant in the number of cases going to court been told of his infection and advised is thinking of pleading guilty, scien- and the recent increase in acquittals. about ways of reducing the risk of tific evidence is crucial to determine transmission to others, and that he or the likelihood of the defendant hav- she had understood such advice.” ing infected the complainant. Early An important argument used by cases had involved guilty pleas and many in the HIV sector against pros- convictions without any corroborative ecutions was the possible deterrent scientific evidence of the defendant’s The discussion of effect of prosecutions on willingness responsibility for the complainant’s knowledge in the to test for HIV, if criminal liability infection. The requirement that evi- Guidance was clearly was so closely linked to diagnosis. dence must always corroborate even The CPS notes in its introduction to a guilty plea for either reckless or influenced by submissions the Policy Statement that “the strong intentional infection is an important from the HIV sector. public interest in encouraging test- provision. ing amongst those who may be at Even where a close match between risk from any sexually transmissible the two samples is demonstrated, infection”. The Guidance states that there may be other explanations for “[t]hose who choose not to be tested what happened — for example, the will not necessarily avoid prosecution Knowledge and recklessness complainant could have infected the for the reckless transmission of a sex- defendant, or they both could have The second case prosecuted in ually transmissible infection if all the been infected by a third party. Thus, England involved the conviction of circumstances point to the fact that the Guidance requires that even someone who had not had an HIV they knew that they were infected.” where samples are closely linked, test but had been informed by his In the Guidance, the examples other evidence needs to be obtained, wife of her own HIV-positive diagno- given of knowledge without diag- for example detailed sexual histories sis and of her doctor’s advice that he nosis — or “wilful blindness” as the of the complainant as well as the also be tested. This raised the ques- CPS perhaps unhelpfully terms it defendant, to prove the likelihood tion of what knowledge was required — include “where the defendant has that the defendant was responsible for for someone to be prosecuted for a preliminary diagnosis from a clini- the complainant’s infection. recklessness in transmitting HIV. cian who has recommended that they The Guidance states that scientific The Guidance contains a strong have a formal confirmatory test for evidence can demonstrate that the subjective test of knowledge as it presence of the sexual infection but defendant was not responsible for the relates to recklessness — “prosecu- the defendant has failed to act on that complainant’s infection. Whilst the tors will look for evidence that the recommendation.” Other examples Guidance does not explicitly state defendant ‘knew’ that they had a where knowledge could be present this, the relevant scientific evidence sexually transmissible infection and in the absence of diagnosis are “clear

16 HIV/AIDS POLICY & LAW REVIEW Developing guidance for HIV prosecutions

symptoms associated with the sexual be difficult to prove to the requisite It appears that the expert would infection” from which knowledge high standard….” ordinarily be a clinician. Whilst could reasonably be inferred, or the clinicians might be able to provide Behaviour and recklessness diagnosis of a sexual partner who expertise on degrees of risk, it is not could only have been infected by the The Guidance states that “reckless- necessarily the case that they have a defendant. ness” means the defendant foresaw single or objective view as to what The Guidance emphasises, how- the risk of infection to his or her behaviour might be reckless, a very ever, that such cases without diagno- sexual partner but still went on to different sort of judgement. There sis will be “rare” and ”exceptional.” take that risk, and did so unreason- is the possibility of both prosecu- It is important to be clear that these ably. The requirement of subjective tion and defence calling clinicians as examples of knowledge without diag- knowledge is thus complemented by expert witnesses to argue the point, nosis are not instances of “should” or a more objective evidential require- and of inconsistency of approach. “ought to” have known. The prosecu- ment linked to the concept of “rea- We still do not know, for example, tion still has to prove actual, subjec- sonableness.” There is a theoretical whether a prosecution might be tive knowledge by the defendant of and remote risk of infection from a attempted for HIV transmission from his/her infected status. Whether this very wide range of sexual behaviours oral sex. could ever be proved in a court of law but in many cases, whilst foreseeable, in the absence of a diagnosis may be the risk is so low as to make taking open to doubt. But this is neverthe- that risk reasonable. For an objective less one issue to watch with care. view of which behaviours involve There is no explicit The discussion of knowledge in a relevant degree of risk to possibly the Guidance was clearly influenced be prosecuted, the Guidance refers statement in the by submissions from the HIV sec- the prosecutor to “current scientific Guidance as to what tor. The Guidance requires not advice regarding the need for and use sexual behaviour would only evidence of a diagnosis having of safeguards.” been delivered but of it having been One important result of keeping constitute recklessness understood. Referring to the shock the Guidance at this generic level is in relation to HIV of a positive diagnosis and the dif- the absence in the document of any ficulty in understanding all that may explicit statement as to what sexual transmission. then be communicated, the Guidance behaviour would constitute reckless- states that “prosecutors will need to ness in relation to HIV transmission. be satisfied that the defendant really Instead, the prosecutor has to ensure did understand that they were infec- that s/he understands the nature of It could be argued, on the other tious to other people, and how the the sexual infection in question, how hand, that the lack of stipulation, particular infection concerned could it is transmitted, the varying degrees whilst not excluding any behaviour be transmitted”; and that “proof of of infectiousness possible, and the from prosecution, does not unequivo- knowledge is likely to be difficult.” place of “appropriate safeguards” in cally include any behaviour either In summary, the emphasis on preventing transmission risks. In all — i.e., we have avoided an unhelp- proof of subjective knowledge of these areas the prosecutor should get ful list which puts beyond doubt that infection and infectiousness, and the advice from an expert. a particular behaviour will be deemed acknowledgement of some of the There are undoubted difficulties in reckless. This allows for develop- social factors which compromise this approach for those who wanted ment in scientific understanding and such knowledge, result in a high evi- clarity from the CPS. The judge- consensus, and also for a nuanced dential threshold for prosecution. As ment for the purposes of prosecution approach which could take more the CPS states in the introduction to as to whether a particular behaviour account of risk reduction or differ- the Guidance, “The criminality of the was reckless or a particular safeguard ent stages in infectiousness. It could offending lies in the mens rea. This appropriate is one for individual even be argued that the CPS have means that the relevant offences will experts and prosecutors. effectively given back to the HIV

VOLUME 13, NUMBER 1, JULY 2008 17 Developing guidance for HIV prosecutions

sector the responsibility to establish Guidance makes clear that whilst dis- for different audiences. Given the the consensus as to what constitutes closure would be the most usual way significant role envisaged for expert behaviour with a serious risk of harm. for the complainant to be informed, clinical evidence, it will be important there are other routes for the infor- to review the helpful guidance on Safeguards as a defence mation, such as from a third party, a prosecutions produced for clinicians As striking as the absence of the hospital visit or “the appearance of in March 2006.11 word “HIV” from the Guidance is sores” — and this is clearly not an Also important will be to work the absence of the word “condom.” exhaustive list. with police forces to establish some Again, this arises from the decision With respect to intentional trans- consistent best practice in the inves- to provide generic advice applicable mission, the Guidance states that an tigation of these cases. A review is to the range of sexually transmis- offence of “attempted intentional being undertaken of selected cases by sible infections. It is possible that transmission” is possible, but also the Metropolitan Police and THT to the term “safeguard,” which is used explicitly says that there is no offence identify examples of both good and in the Guidance, might be interpreted of “attempted recklessness.” In other bad practice in investigation. NAT to mean not only a device or technol- words, there is no crime of recklessly will draw on the results of this review ogy but also an aspect of behaviour exposing someone to the risk of to work with the Association of Chief which reduces risk. The main kind HIV transmission. Nor is someone Police Officers on the development of safeguard in relation to HIV will guilty of rape who has consensual of nationally applicable best practice nevertheless be the condom. intercourse without disclosing his/her guidelines for police investigation. The Guidance states that evi- infection. dence of consistent use of safeguards There is no guidance on the sensi- Conclusion (read condoms) will make it “highly tivities around the application of the Judging success depends a lot on unlikely that the prosecution will be law to young people living with HIV one’s initial expectations. The CPS able to demonstrate that the defen- reaching adolescence and becoming were not in a position to end pros- dant was reckless” even though infec- sexually active. As well, there is ecutions for reckless transmission or tion has nevertheless occurred. This only a brief, and inadequate, account disagree with the interpretation of the statement, which is effectively about of how the law applies in cases of OAPA 1861 as set out by the Court condom use as a defence against condom breakage during sex. of Appeal. What they could do — prosecution, is, of course, very wel- and what they did do — was consider come, and reinforces public health Next steps in greater depth, and on the basis of messages. The Guidance goes on The CPS is requiring that its local detailed evidence, what is required to state that even if the safeguard offices refer these sensitive cases to to prove responsibility for infec- employed is inappropriate or incor- headquarters, which should estab- tion, knowledge, recklessness and rectly used, “only where it can be lish some expertise and consistency. appropriate use of safeguards. An shown that the defendant knew that There is also to be a review of the informed understanding of these ele- such safeguards were inappropriate Guidance and Policy Statement in a ments has, even in the context of cur- will it be likely that the prosecution year’s time, which will be an oppor- rent criminal law, resulted in fewer would be able to prove recklessness.” tunity to revisit uncertainties or con- and fairer prosecutions. As the tinuing concerns. CPS says in its Policy Statement, Other issues A seminar for the HIV sector is “[O]btaining sufficient evidence to The Guidance restates the position of being jointly organised by NAT and prove the intentional or reckless sex- the Court of Appeal that a possible THT to discuss collective understand- ual transmission of infection will be defence is that the person infected ing of the CPS documents and next difficult … accordingly it is unlikely (the complainant) had consented to steps. There is clearly a need to com- that there will be many prosecutions.” the risk of that infection occurring. municate to individuals, professional Therefore, we should consider this This involves specific knowledge of bodies and organizations the impli- to be a successful example of policy the defendant’s HIV status when the cations of the Guidance. Tailored intervention as harm reduction. It HIV transmission took place. But the resources will need to be produced was not without its risks. Success

18 HIV/AIDS POLICY & LAW REVIEW Developing guidance for HIV prosecutions

was due to a number of factors, not consider freshly how and when we “Intentional or Reckless Sexual Transmission of Infection.” Available at www.cps.gov.uk/legal/section7/ least of which was a CPS that was might engage with political decision- chapter_h.html. The two documents contain very similar already committed to taking seri- makers on this issue. text. In this article, the Guidance is cited except where the Policy Statement states something additional. ously the concerns and experiences of 2 The description is not exhaustive and, in particular, can- affected communities when consider- – Yusef Azad not capture the broader and sustained level of community and sector engagement on the issue, which included ing prosecutions in socially sensitive publications, surveys, information dissemination, challeng- areas of law. Some jurisdictions ing stigmatizing coverage and engaging on sentencing will not have such an enlightened Yusef Azad ([email protected]) is policy and on public health law reform. 3 prosecution service, and so the HIV Director of Policy and Campaigns for the M. Weait and Y. Azad, “The criminalization of HIV National AIDS Trust. transmission in England and Wales: questions of law and sector will need to start further back policy,” HIV & AIDS Policy & Law Review 10(2) (2005): 1, 5–12. in terms of engaging with the authori- 4 There have been two or three attempts to charge indi- ties. But it may be possible, even viduals with intentional transmission, but they have never given the different legal contexts reached the courts. of different countries, to use the 5 “Blair’s ‘frenzied law-making’: a new offence for every day spent in office,” The Independent, 16 August 2006. CPS Guidance to help bring about 6 See www.cps.gov.uk/publications/prosecution/ improvements in practice elsewhere. index.html for documents concerning CPS prosecution The process was helped immense- policy and guidance. ly by the commitment from an 7 In this case, the CPS held a wider focus group in December 2005 for people from the HIV sector to extraordinarily wide range of partners feed in to the preparation of the document for public within the HIV sector, encompassing consultation. NGOs, academics, clinicians, virolo- 8 NAM (formerly ‘National AIDS Manual’) is a leading UK HIV NGO which provides treatment and other HIV- gists and, above all, people living related information. See www.aidsmap.com. with HIV. 9 NAT/NAM, HIV Forensics, 2007, at www.nat.org.uk/document/230; see also, E. Bernard, Criminal HIV Transmission, Although harm may be reduced, it NAM, 2007. has not been ended — prosecutions 10 1 For a helpful account of the English legal context on for reckless HIV transmission remain The Policy Statement’ is designed for a general reader- recklessness, see M. Weait, Intimacy and Responsibility: The ship; its full title is “Policy for Prosecuting Cases Involving Criminalisation of HIV Transmission (London: Routledge- and will continue. There is an urgent the Intentional or Reckless Sexual Transmission of Cavendish, 2007), pp.158–160. Infection.” Available at www.cps.gov.uk/publications/ need to restate the ethical and policy prosecution/index.html. The Legal Guidance for pros- 11 British HIV Association, HIV Transmission, the Law and case against such prosecutions and to ecutors and caseworkers is more detailed; its full title is the Work of the Clinical Team, 2006, at www.bhiva.org.

VOLUME 13, NUMBER 1, JULY 2008 19 Access to condoms in U.S. prisons

Despite overwhelming evidence that condom use prevents the transmission of HIV, U.S. prison officials continue to limit the availability of condoms to incarcerated persons. Concern for transmission of HIV in prison and in the community upon prisoners’ release has increased the interest of some policymakers in the issue. In this article, Megan McLemore addresses security concerns as well as human rights arguments in support of efforts to adopt a public health approach to harm reduction in U.S. prisons.1

The management of infectious dis- the willingness of lawmakers to times higher than in the general ease in prisons is a human rights revisit a controversial issue in the population.3 The prevalence of HCV imperative as well as a matter of interest of public health. In Texas, among prisoners approaches 40 per- public health. Given the high level for example, Representative Garnet cent.4 Co-infection is also a concern: of HIV infections among those who Coleman explained to the Corrections A significant number of HIV-positive enter prison, making condoms readily Committee considering his bill that inmates are also infected with HCV. accessible to inmates is an effective it was intended to protect not only Although the majority of inmates and inexpensive measure that correc- the health of inmates but the health infected with HBV, HCV and HIV tions officials should take to limit the of members of the African-American acquired the infection outside of spread of infection. community, where HIV transmis- prison, the transmission of infectious Recent studies indicate no adverse sion rates are alarmingly on the disease in prison is increasingly well security consequences in correctional rise. In California, Governor Arnold documented.5 Targeted interventions systems where condoms are avail- Schwarzenegger vetoed a bill permit- to reduce the risk of HIV transmis- able. These findings, and a growing ting widespread condom distribution sion in prison, such as the provision imperative to reduce transmission in but authorized a pilot program in one of condoms, methadone maintenance the community when offenders are prison to evaluate the feasibility of treatment, and supplying bleach to released, have prompted efforts in such a program. clean needles and syringes, have prov- several states and the U.S. Congress to en highly effective in preventing HIV permit condom use in prison. These Infectious disease in transmission in prisons, just as they efforts should be endorsed by correc- prisons have been when implemented outside. tions professionals and policymakers. More than 2.2 million persons are These harm reduction approaches Since 2006, legislators from states currently incarcerated in U.S. pris- have been endorsed by the World with the largest prison populations, ons. Incarcerated individuals bear a Health Organization (WHO), such as Texas, California, Illinois, disproportionate burden of infectious UNAIDS and the UN Office of New York and Florida, have intro- diseases, including the hepatitis B Drugs and Crime as an integral part duced bills permitting non-profit or virus (HBV), the hepatitis C virus of HIV prevention strategies, includ- medical personnel to provide con- (HCV), and HIV/AIDS. Although ing in prison.6 Government failure doms to inmates. At the federal inmates comprise only 0.8 percent of to ensure access to harm reduction level, Representative Barbara Lee has the U.S. population, it is estimated services puts inmates at unnecessarily introduced the Justice Act of 2006 that 12–15 percent of Americans with increased risk of infection. (HR 6083), a comprehensive attempt chronic HBV infection, 39 percent Regardless of institutional regula- to address HIV/AIDS in prison of those with chronic HCV infection, tions, sexual activity, both consensual which includes a provision permit- and 20–26 percent of those with HIV and coerced, is common in prisons. ting condom distribution to reduce infection pass through a correctional Sex among inmates has been docu- transmission. facility each year.2 mented extensively not only in aca- None of these bills has become The HIV prevalence in state and demic studies and by human rights law, but their introduction reflects federal prisons is two and a half organizations, including Human

20 HIV/AIDS POLICY & LAW REVIEW Access to condoms in U.S. prisons

Rights Watch, but by correctional These policies stand in stark con- One study examined the condom systems themselves in the form of trast to the public health approach distribution program in effect since individual grievances and disciplinary taken by prison officials in Canada, 1993 at the Central Detention Facility actions against inmates engaging in Western Europe, Australia, Ukraine, in Washington, D.C. (CDF). The prohibited behaviour.7 Romania and Brazil, where condoms study found that the CDF housed The Prison Rape Elimination Act have been available to inmates for approximately 1400 adult males, 100 (2003)8 found that an estimated 13 years. Moreover, several large, urban adult females and 40 juveniles, and percent of U.S. prisoners had been prisons in federal jurisdiction, as well processed an average of 2800 inmates sexually assaulted in prison, and as one state, have provided condoms per month. It was staffed by 551 cor- called for research into its prevalence to inmates, either through medical rectional officers. and patterns. A national Prison Rape staff or more general distribution. Condoms were provided free of Elimination Commission has held a Where institutional policy provides for charge through public health and series of hearings examining sexual condom distribution, no correctional AIDS service organizations. Inmates violence in local, state and federal system has yet to find any grounds to had access to the condoms during correctional facilities; the U.S. reverse or repeal that policy. health education classes, voluntary Bureau of Justice Statistics has begun Leading correctional health HIV pre-test or post-test counselling, a nationwide survey of sexual vio- experts endorse condom distribution or upon request to members of the lence in detention; and national stan- in prisons. The National Commission health care staff. Approximately 200 dards are being developed to address on Correctional Health Care condoms were distributed each month the problem. (NCCHC), the nation’s primary stan- according to inventory audits. dard-setting and accreditation body in Both inmates and staff were inter- the field of corrections, has endorsed viewed about their opinion of the the implementation of harm reduction condom distribution program. The strategies, including condom distribu- findings indicate that 55 percent of tion. The Commission states, “While inmates and 64 percent of correc- Government failure to NCCHC clearly does not condone tional officers supported the availabil- ensure access to harm illegal activity by inmates, the public ity of condoms at the CDF facility. health strategy to reduce the risk of Objections related primarily to moral reduction services puts contagion is our primary concern.” 9 and religious concerns about homo- inmates at unnecessarily Further, the American Public Health sexual activity. Association Standards for Health Thirteen percent of correctional increased risk of infection. Services in Correctional Institutions officers said that they were aware of (3rd Edition, 2003) recommends that institutional problems associated with condoms be available for inmates. condom distribution, though none provided descriptions of those prob- Condom distribution programs: lems. No major security infractions U.S. prisons Correctional policy and related to condoms had been reported condom distribution Some corrections officials have since commencement of the program. expressed concern that condom dis- There was no evidence that sexual Despite overwhelming evidence that tribution would negatively affect activity had increased, based upon condom use prevents the transmission institutional security. This concern staff interviews as well as a review of of HIV, U.S. prison officials continue has proved unfounded in studies from disciplinary reports for the relevant to limit the availability of condoms Canada and Australia.10 As discussed period. The researchers stated: to incarcerated persons. Fewer than below, a recent evaluation of a U.S. one percent of correctional facilities condom distribution program pro- Permitting inmates access to condoms provide condoms to inmates, though vides further evidence that security is remains controversial among most those that do include some of the not compromised by this vital harm correctional professionals. Even so, nation’s largest urban prisons. reduction measure. no jail or prison in the United States

VOLUME 13, NUMBER 1, JULY 2008 21 Access to condoms in U.S. prisons

allowing condoms has reversed their sons the right to life, and to be free not aggravate the suffering inherent policies, and none has reported major from cruel, inhuman or degrading in imprisonment, because loss of lib- security problems. In the Washington, treatment; and, if deprived of their erty alone is the punishment. D.C. jail, the program has proceeded liberty, to be treated with humanity States have positive obligations to since 1993 without serious incident. and with respect for the inherent dig- take measures to ensure that condi- Inmate and correctional officer sur- nity of the human person. tions of confinement comply with veys found condom access to be gen- The U.S. is also a party to the international human rights norms erally accepted by both.11 Convention Against Torture (CAT), and standards. The Human Rights Several large urban prisons, including which protects all persons from tor- Committee, an expert UN body that the Los Angeles and San Francisco ture and ill treatment; and is a signa- monitors state compliance with the County prisons, make condoms tory of the International Covenant on ICCPR and provides authoritative available to inmates. San Francisco Economic, Social and Cultural Rights interpretations of its provisions, has Sheriff Michael Hennessey was a (ICESCR), which guarantees the explained that states have a “posi- strong supporter of California’s legis- right to the highest attainable stan- tive obligation towards persons who lation permitting condom distribution dard of health.12 are particularly vulnerable because in prison, which was passed in 2005 of their status as persons deprived of and again in 2007, but was vetoed in liberty.” both instances by the Governor. The ICESCR recognizes in In an editorial opinion letter Article 12 “the right of everyone to published April 19, 2005 in the States have a “positive the highest attainable standard of San Francisco Chronicle, Sheriff health.” The ICESCR requires that Hennessey stated that correctional obligation towards states take all the steps necessary for officials should “do everything we persons who are “the prevention, treatment and con- can to prevent sexual activity in cus- particularly vulnerable trol of epidemic … diseases” which tody, but we shouldn’t turn a blind include the establishment of preven- eye to the reality that it occurs.” because of their status tion and education programmes for Further, he noted that the risk of as persons deprived of behaviour-related health concerns contraband smuggling was much such as sexually transmitted diseases, greater from routine contact between liberty.” in particular HIV/AIDS. inmates and outside visitors than Realization of the highest attain- from the availability of condoms able standard of health requires not inside the facility. Significantly, fol- only access to a system of health care; lowing his recent veto of the bill, according to the UN Committee on Governor Schwarzenegger agreed to The obligations to protect the Economic, Social and Cultural Rights, permit a pilot program for condom rights to life and health, and to it also requires states to take affirma- distribution, the first of its kind in the protect against torture and other ill tive steps to promote health and to California state prison system. treatment create positive duties on refrain from conduct that limits peo- the government to ensure access to ple’s abilities to safeguard their health. Legal standards and adequate medical services and to take Laws and policies that are “likely to guidelines appropriate measures necessary to result in … unnecessary morbidity 13 International legal standards prevent and control disease. and preventable mortality” constitute International human rights law specific breaches of the obligation to In its treatment of prisoners, the U.S. clearly affirms that prisoners retain respect the right to health. must comply with its international fundamental rights and freedoms Key international instruments human rights obligations. The U.S. is guaranteed under human rights law, establish the general consensus that a party to the International Covenant subject to the restrictions that are prisoners are entitled to a standard on Civil and Political Rights unavoidable in a closed environment. of health care equivalent to that (ICCPR), which guarantees to all per- The conditions of confinement should available in the general community,

22 HIV/AIDS POLICY & LAW REVIEW Access to condoms in U.S. prisons

without discrimination based on their munity. Preventative measures should Amendment claims, requiring legal status. also be based on risk behaviours actu- inmates to demonstrate that officials In some cases, state obligations to ally occurring in prisons, notably nee- were “deliberately indifferent to seri- protect prisoners’ fundamental rights, dle sharing among injection drug users ous medical needs.” This standard in particular the right to be free from and unprotected sexual intercourse…. involves both an objective (seri- ill-treatment or torture, the right to Since penetrative sexual intercourse ous medical need) and subjective occurs in prison, even when prohibit- health, and ultimately the right to life, (deliberately indifferent) component. ed, condoms should be made available may require states to ensure a higher to prisoners throughout their period of Courts have consistently held that standard of care than is available to detention.17 prisoners diagnosed with HIV/AIDS people outside of prison who are not have demonstrated a “serious medical 19 wholly dependent upon the state for U.S. legal standards need.” protection of these rights.14 In prison, The subjective component has where most material conditions of The Eighth Amendment to the U.S. been interpreted as met when a prison incarceration are directly attributable Constitution protects prisoners from official “knows of and disregards an to the state, and inmates have been “cruel and unusual punishment” and excessive risk to inmate health or deprived of their liberty and means requires corrections officials to provide safety.”20 of self-protection, the requirement to a “safe and humane environment.” In Farmer, a transgendered pris- protect individuals from risk of torture In the U.S., prisoners have a right to oner sued federal prison officials for or other ill-treatment can give rise to a health care beyond that of the gen- compensation for a brutal beating positive duty of care, which has been eral population. As Justice Marshall and sexual assault that, the complaint interpreted to include effective meth- explained in the Estelle decision: alleged, could have been prevented ods of screening, prevention and treat- by prison officials. The Supreme ment of life-threatening diseases. These elementary principles establish Court remanded the case for further Guidance from the WHO, the government’s obligation to provide hearing, but the opinion contains a UNAIDS and United Nations Office medical care for those whom it is pun- detailed discussion of the scope of on Drugs and Crime (UNODC) ishing by incarceration. An inmate the duty of prison officials to protect must rely on prison authorities to treat elaborate measures to protect prison- prisoners from harm when the risk of his medical needs; if the authorities ers’ fundamental rights to HIV/AIDS fail to do so, those needs will not be harm is known or acknowledged. 15 prevention, care and treatment. The met. In the worst cases, such a failure There are no reported U.S. cases principle of equivalence is specifi- may actually produce physical “torture addressing the constitutionality of cally set forth in the Basic Principles or lingering death,” the evils of most a prison system’s failure to provide for the Treatment of Prisoners, adopt- immediate concern to the drafters of condoms to inmates but, arguably, the ed by the United Nations General the Amendment. refusal to implement condom distri- Assembly in 1990: “Prisoners shall bution programs in prisons meets the have access to the health services In less serious cases, denial of medical “deliberate indifference” standard, available in the country without dis- care may result in pain and suffering, particularly when the rates of infec- crimination on the grounds of their which no one suggests would serve any tion among inmates, their high-risk penological purpose. The infliction of legal situation.”16 behaviour, and the incidence of trans- such unnecessary suffering is incon- The WHO guidance also state that sistent with contemporary standards of mission of disease is increasingly prisoners are entitled to prevention decency as manifested in modern legis- well documented. programs equivalent to those avail- lation, codifying the common law view Conclusion able in their community, and specifi- that “it is but just that the public be cally addresses the issue of condom required to care for the prisoner, who Despite increasing documentation of distribution in a prison environment: cannot, by reason of the deprivation of high rates of infectious disease, the his liberty, care for himself.”18 occurrence of high-risk behaviours, Preventative measures for HIV/AIDS and transmission of disease among in prison should be complementary to The Estelle case, however, applies inmates, the distribution of condoms and compatible with those in the com- a difficult standard to Eighth in U.S. prisons continues to be limit-

VOLUME 13, NUMBER 1, JULY 2008 23 Access to condoms in U.S. prisons

ed. Opposition to these programs on 3 U.S. Bureau of Justice Statistics, HIV in Prisons 2005, Harm Reduction Measures in the Correctional Service of September 2007. Available via www.usdoj.gov. Canada, 1999; L. Yap et al., “Do condoms cause rape and the basis of security concerns is not mayhem? The long-term effects of condoms in New 4 supported by the evidence provided A. Spaulding et al, “A framework for management of South Wales prisons,” Sexually Transmitted Infections (STI) hepatitis C in prisons,” Annals of Internal Medicine 144 Online (December 19, 2006), at www.stibmj.com. in reports from prisons in jurisdic- (10) (2006): 763; S. Allen et al, “Hepatitis C among offenders — correctional challenge and public health 11 J. May and E. Williams, “Acceptability of condom avail- tions that have established, evaluated opportunity,” Federal Probation 67(22) (2003): 22. ability in a US jail,” AIDS Education and Prevention 14(Supp. B) (2002): 85. and chosen to retain their condom 5 See, e.g., “HIV Transmission among male inmates 12 distribution policies. U.S. policy- in a state prison system — Georgia 1992-2005”, In signing the ICESCR, but not yet ratifying it, the U.S. CDC Morbidity and Mortality Weekly Report (MMWR), has not agreed to be legally bound by the Convention, makers should endorse current efforts 55(MM15) (2006): 421. For a review of HBV, HCV and but should not take regressive steps in relation to the to adopt a public health approach to HIV transmission studies for both international and U.S. obligations therein and is obliged to refrain from acts prisons, see R. Jurgens, “HIV/AIDS and HCV in prisons: which would defeat the object and purpose of the treaty this issue, thereby ensuring compli- a select annotated bibliography,” International Journal of (Article 18 of the Vienna Convention on the Law of Treaties 1969). ance with the recommendations of Prisoner Health 2(2) (2006): 131. For a review of the U.S. literature in this area, see T. Hammett, “HIV/AIDS and 13 These leading international human rights instruments national correctional health experts as other infectious diseases among correctional inmates: may be found online at the website of the United well as with international legal stan- transmission, burden and an appropriate response,” Nations High Commissioner for Human Rights, American Journal of Public Health 96(6) (2006): 974. www.unhchr.ch/html/intlinst.hm. dards and guidelines. 6 See, e.g., WHO/UNAIDS/UNODC, Effectiveness of 14 See, R. Lines, “From equivalence of standards to Interventions to Manage HIV in Prisons – Prevention of equivalence of objectives: the entitlement of prison- – Megan McLemore Sexual Transmission, 2007. ers to standards of health higher than those outside prisons,”International Journal of Prisoner Health 2 (2006): 7 See, e.g., C.P. Krebs et al, “Intraprison transmission: an 269. assessment of whether it occurs, how it occurs, and who Is at risk,” AIDS Education and Prevention 14(Supp. 15 WHO, Guidelines on HIV Infection and AIDS in Prisons, Megan McLemore ([email protected]) B) (2002): 53; A. Spaulding et al, “Can unsafe sex behind 1999; UNAIDS, International Guidelines on HIV/AIDS and is with the Human Rights and HIV/AIDS bars be barred?” American Journal of Public Health 91(8) Human Rights, 2006; UNODC, HIV/AIDS Prevention, Care, Program at Human Rights Watch. (2001): 1176; N. Mahon, “New York inmates’ HIV risk Treatment and Support in Prison Settings: A Framework for behaviors: the implications for prevention policy and Effective National Response, 2006. programs,” American Journal of Public Health 86 (1996): 16 Basic Principles for the Treatment of Prisoners, U.N. 1211; and Human Rights Watch, No Escape: Male Rape in General Assembly Resolution 45/111 (1990), para. 9. US Prisons, 2001. 17 WHO, para. 20. 8 Prison Rape Elimination Act, 2003, Public Law 108-79, 1 Except in quoted text, this article uses the term “pris- th 108 Congress. 18 Estelle v. Gamble, 429 U.S. 97 (1976). on” to designate all correctional facilities, including jails. 9 19 2 NCCHC Position Statement, Journal of Correctional See Smith v. Carpenter, 316 F.3d 178 (2d Cir. 2003); and C. Weinbaum et al, “Hepatitis B, hepatitis C, and HIV in Health Care 11(4) (2005). Montgomery v. Pinchak, 294 F.3d 492 (3d Cir. 2002). correctional populations: a review of epidemiology and prevention,” AIDS 19(3) (2005): 41. 10 Correctional Services of Canada, Evaluation of HIV/AIDS 20 Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970 (1994).

24 HIV/AIDS POLICY & LAW REVIEW CANADIAN DEVELOPMENTS

This section provides brief reports of developments in legislation, policy, and advocacy related to HIV/AIDS in Canada. (Cases before the courts or human rights tribunals in Canada are covered in the section on HIV in the Courts — Canada.) The coverage is based on information provided by Canadian correspondents or obtained through scans of Canadian media. Readers are invited to bring stories to the attention of Alison Symington, editor of this section, at [email protected]. Ms. Symington is the author of all of the articles in this section.

Legislation imposing mandatory minimum sentences for drug offences passes second reading

Bill C-26, An Act to amend the Controlled Drugs and Substances Act,1 passed second reading in the House of Commons on 16 April 16 2008, and was referred to the Standing Committee on Justice and Human Rights. The legislation has been proposed as a component of the National Anti-Drug Strategy.2

Currently there are no mandatory Canada, who called it “another step to offences of production, traffick- prison sentences for offences under in our Government’s plan toward ing, possession for the purpose of the Controlled Drugs and Substances tackling crime and strengthening the trafficking, importing and exporting, Act (CDSA). In November of 2007, security of Canadians.”3 and possession for the purpose of Bill C-26 was tabled by the Minister The legislation proposes to add exporting of drugs listed in Schedule of Justice and Attorney General of mandatory terms of imprisonment 1 (e.g., heroin, cocaine and metham-

VOLUME 13, NUMBER 1, JULY 2008 25 canadian developments

phetamine) and Schedule 2 (e.g., can- ment if one of the aggravating tences for certain drug offences (Bill nabis and marijuana) of the CDSA. factors from the first list is pres- C-9) failed. As originally drafted, The bill sets out two lists of ent; a minimum of two years if Bill C-9 would have amended the “aggravating factors.” The first list one of the aggravating factors Criminal Code to remove conditional includes offences committed for the from the second list is present.7 sentencing as an option for anyone benefit of, or in association with, • For importing and exporting of convicted of an indictable offence organized crime; offences involv- Schedule 1 substances amounting that carries a possible penalty of ing the use or threat of violence; to less than one kilogram: a mini- imprisonment of 10 years or more. instances where the offender carried, mum of one year imprisonment; In other words, incarceration would used, or threatened to use, a weapon; if more than one kilogram, a be mandatory. and instances where the offender was minimum of two years imprison- The Canadian HIV/AIDS Legal convicted of, or served time in prison ment.8 Network was concerned about how for, a drug offence (excluding simple • For importing and exporting of Bill C-9 would affect people who possession) within the previous ten Schedule 2 substances for the use drugs, and was concerned that it years.4 purposes of trafficking: a mini- would undermine efforts to reduce The second list includes instances mum of one year imprisonment.9 the harms associated with drug use, where the offence was committed • For production of Schedule 1 including HIV transmission. The near a school, school ground or other substances: a minimum of two Legal Network appeared before the public placed usually frequented years imprisonment; where one Justice Committee regarding Bill C-9 by persons under 18 years of age; of the health and safety factors in September 2006. The legislation instances where the offence was is present: a minimum of three was amended before third reading committed in a prison; and instances years imprisonment.10 so that it no longer applied to drug where a person under 18 years of age • For the production of Schedule 2 offences.14 was used in the commission of the substances: a minimum sentence 5 Commentary offence. ranging from six months to three The bill also sets out a series of years, depending on the sub- Bill C-26 suffers the same flaws as aggravating factors related to health stance, the quantity and whether Bill C-9. The legislation is presented and safety, including that the offender any of the health and safety fac- as targeting drug dealers, but in prac- used real property that belongs to tors apply.11 tice the burden of mandatory prison a third party in the commission of sentences falls on people involved the offence; that the production of In addition, the bill would move in small-scale, street-level drug dis- Schedule 1 or 2 drugs constituted a GHB and flunitrazepam (com- tribution and consumption to sup- potential security, health or safety monly called “date rape drugs”) from port addictions. It is also bad public hazard to persons under 18 years Schedule 3 to Schedule 1, which health policy to increase the incarcer- who were in the location where the means that offences involving these ation rate of people who use drugs, offence was committed or in the drugs would be subject to higher especially since Canadian prisons fail immediate area; and that the offender penalties, including the mandatory to provide access to sterile syringes. set a trap likely to cause death or minimum sentences.12 Evidence from the United States bodily harm to another person.6 Finally, the bill includes an excep- indicates that mandatory minimum The mandatory minimum sentenc- tion for accused persons who par- sentences do not work for drug es set out in the bill are as follows: ticipate in approved Drug Treatment offences, resulting in the incarcera- Court programs. The court can sus- tion of large numbers of non-violent • For trafficking, and possession pend the imposition of a mandatory drug offenders while doing nothing to for the purposes of trafficking, penalty and impose a lesser sentence curb drug-related crime or problem- of Schedule 1 substances, or of if the person successfully completes atic drug use. Schedule 2 substances amounting the drug treatment program.13 Finally, by mandating incarceration to more than three kilograms: a A previous attempt in 2006 to for non-violent offences and denying minimum of one year imprison- implement mandatory minimum sen- judges’ discretion to craft sentences

26 HIV/AIDS POLICY & LAW REVIEW canadian developments

proportionate to each conviction, the (2007): 27–28. 9 Ibid. legislation is contrary to fundamental 3 “Speaking notes for the Honourable Rob Nicholson, 10 Bill C-26, cl. 3(1)(a). P.C., Q.C., M.P. for Niagara Falls, Minister of Justice and 11 sentencing principles of Canadian law Attorney General of Canada for the Announcement of Bill C-26, cl. 3(1)(a.1) to (b)(vi). and violates human rights.15 Tabling of Legislation on Mandatory Prison Sentences for 12 Bill C-26, cl. 6. Serious Drug Crimes,” 20 November 2007. 13 Bill C-26, cl. 5(4) and (5). 4 Bill C-26, cl. 1(1)(a)(i). 14 Canadian HIV/AIDS Legal Network, Update on Bill C-9, 5 1 Bill C-26, An Act To Amend the Controlled Drugs and Bill C-26, cl. 1(1)(a)(ii). An Act To Amend the Criminal Code (Conditional Sentence of Substances Act and To Make Consequential Amendments to 6 Imprisonment), Briefing Paper, November 2006. nd th Bill C-26, cl. 3(2). Other Acts, 2 Sess., 39 Parl., 2007. 15 7 Bill C-26, cl. 1(1)(a)(i) and (ii). Ibid.; Canadian HIV/AIDS Legal Network, Mandatory 2 See “Conservative government announces new anti- Minimum Sentences for Drug Offenses: Why Everyone Loses, drug strategy,” HIV/AIDS Policy & Law Review 12(2/3) 8 Bill C-26, cl. 2. Briefing Paper, April 2006.

Manitoba legislation would authorize testing for HIV without informed consent

Manitoba’s Health Minister has introduced legislation that would authorize the forced testing of people for HIV and other infections in some situations of possible occupational and non-occupational exposure to blood or other bodily fluids.

Entitled The Testing of Bodily Fluids report to provide a blood sample for objection. If an objection is raised, and Disclosure Act, the legislation testing for viruses such as HIV. the order becomes invalid and the would permit a person who has come No physician’s report is required applicant would need to make an into contact with a bodily fluid of for the expedited process. A physi- application to the court for a standard another person to apply for a testing cian’s assessment of the risks posed testing order. The source person has order if the contact happened as a to the applicant’s health as a result of the opportunity to present the court result of being a victim of a crime, the contact, and the necessity of the with evidence that the taking of the while providing emergency health test results in order to take measures sample would cause a significant services or first aid, or while perform- to prevent infection, is required for risk to his or her physical or mental ing duties as a firefighter or emergen- the standard process. health. If the judge finds that there cy medical response technician.1 The test results are provided to the is significant risk, s/he must not issue The legislation sets out a process physician of the applicant and to the the order. physician of the source individual if by which a person applies to a court Commentary for a standard testing order or to a they have provided that information, justice of the peace for an expedited otherwise to the medical officer of Legislation of this sort already exists testing order. The judge or justice of health. in Alberta, Saskatchewan, Ontario the peace can then issue an order for If the testing order is issued under and Nova Scotia.2 It is based on a the person who is the source of the the expedited process, the source flawed rationale and raises serious exposure (the “source individual”) to person has 24 hours to register an human rights concerns.

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The bill introduced in Manitoba In fact, there has only been one con- forced testing legislation does not shares all of the faults of the legisla- firmed case (and two probable cases) represent an appropriately balanced tion that exists in the other provinces, of occupational transmission of HIV approach to the issue of occupation but the proposed expedited process in Canada since the beginning of the and non-occupational exposure to arguably would make Manitoba’s epidemic.5 HIV. It is not necessary, and does legislation worse, if passed, because Third, forced testing legislation not adequately respect and protect it could increase the chance that these offers little benefit to those who may human rights.8 testing orders will be issued based have been exposed. Most sources on inflated fears about HIV and other person agree to be tested and to blood-borne diseases following occu- provide relevant information to the The legislative process with respect to this pational exposures. Justices of the exposed person in these circum- bill can be followed on the website of the peace are unlikely to have the medi- stances.6 If a source person does Legislative Assembly of Manitoba: cal information needed to properly not voluntarily consent to be tested: www.gov.mb.ca/legislature/. A more assess an application for testing. Because of the time required to com- detailed analysis of forced testing legisla- In addition, several general ply with procedural protections, con- tion in Canada is available in Canadian HIV/AIDS Legal Network, Forced HIV objections can be raised to forced duct the tests and obtain the results; Testing: Questions & Answers, November testing legislation of this sort. First, and because of the possibility of false 2007, available via www.aidslaw.ca. forced testing disregards the ethical negative test results — the informa- and legal principle of informed con- tion to be gleaned from forced testing sent, thereby constituting a violation is of limited use to a person who has of the rights to security of the person to make decisions about (a) post- and privacy. The Supreme Court of exposure treatments to reduce the 1 Bill 18, The Testing of Bodily Fluids and Disclosure Act, 2 nd Canada has repeatedly recognized risk of infection; and (b) behavioural Sess., 39th Leg., Manitoba, 2008. that a person cannot be subjected to changes to prevent possible second- 2 See Canadian HIV/AIDS Legal Network, Undue Force: medical procedures without first giv- ary transmission (e.g., to a sexual An Overview of Provincial Legislation on Forced HIV Testing, October 2007; and previous editions of the Review. ing their informed consent.3 partner or breastfeeding infant). 3 Reibl v Hughes, [1980] 2 SCR 990; see also: Hopp v Second, the risk of transmission The “3 Cs” approach to HIV test- Lepp, [1980] 2 SCR 192; Ciarlello v Schacter, [1993] 2 through occupational exposure is ing has been endorsed both globally SCR 119; Malette v Shulman (1990), 37 OAC 281 (CA); Fleming v Reid (1991), 82 DLR (4th) 298 (Ont CA); incredibly low. For example, the risk and within Canada as the accepted Videto v Kennedy (1981), 33 OR (2d) 497 (CA). of infection from a single percutane- rights-based approach to HIV test- 4 T. de Bruyn, Testing of Persons Believed To Be the Source ous exposure (e.g., a needle stick) to ing.7 That is, HIV testing may occur of an Occupational Exposure to HBV, HCV, or HIV: A Backgrounder, Canadian Strategy on HIV/AIDS and blood that is know to be HIV-infected only with specific, informed con- Canadian HIV/AIDS Legal Network,, 2001, p. 6. 4 is 0.3 percent (1 in 300). This type sent; appropriate pre- and post-test 5 Ibid., p. 8. of direct, under-the-skin exposure to counselling must be provided; and 6 Ibid., p. 2. contaminated blood represents the confidentiality of test results must be 7 E.g., see Canadian Public Health Association, Leading greatest risk of transmitting HIV, and assured. Forced testing legislation, Together: Canada Takes Action on HIV/AIDS (2005/2010), 2005; UNAIDS and Office of the U.N. High even then the risk is very low. such as that introduced in Manitoba, Commissioner for Human Rights, International Guidelines on HIV/AIDS and Human Rights, 2006 Consolidated If the person’s HIV status is is contradictory to this rights-based Version, 2006. unknown, or the exposure is to a approach. 8 See Canadian HIV/AIDS Legal Network, Legislation mucous membrane or broken skin For these reasons, organizations To Authorize Forced Testing for HIV in the Event of Occupational Exposure: An Unjustified and Unnecessary rather than percutaneous, statistically such as the Canadian HIV/AIDS Rights Violation — A Submission to the Government of the chance of infection is even lower. Legal Network have argued that Manitoba, April 2008.

28 HIV/AIDS POLICY & LAW REVIEW canadian developments

Organ donation regulations limit donations from gay men

New federal regulations intended to protect the health and safety of transplant recipients came into force on 7 December 2007.

The regulations outline requirements • persons who have been exposed will reduce the supply of available for the registration of transplant to HIV, HBV or HCV in the pre- transplant organs.7 For example, four establishments; donor suitability ceding year; faculty members of the Department assessment; packaging, labelling and • current prisoners and people of Bioethics at Dalhousie University storage; procedures with respect to who where incarcerated for 72 questioned why the extra conditions errors and adverse reactions, and consecutive hours or more in the for donations from donors who meet record keeping; and operating proce- preceding year; “high risk” criteria (on the basis of dures.1 • persons who have had a tattoo their histories) could not have been To determine the suitability of or body piercing in the previous framed in the regulations as standard the cells, tissues or organs for trans- year using a shared needle; and procedural content rather than as plant, the transplant establishment is • persons who have had close “exclusions.” They further note that required to obtain a medical history of contact in the preceding year “the message sent by the new regula- the donor, perform a physical exami- with someone who had clinically tions is problematic in other signifi- nation of the donor and perform tests active viral hepatitis.4 cant ways. It reinforces the existing for certain diseases.2 In addition, the negative, hurtful stigmatization of establishment must determine that the In addition, for pediatric donors, chil- members of disadvantaged social donor is not unsuitable to donate on dren born to HIV-positive mothers groups. It also reinforces the wrong the basis of a set of the exclusionary or mothers who would be excluded notion that these groups pose a sig- criteria.3 The exclusionary criteria under the above criteria are also nificant risk to public health.”8 for donation of cells, tissues or organs excluded, unless it can be definitively In a news release issued on 28 include the following: determined that they are not infected January, Health Canada defended with HIV.5 the new regulations, explaining • any man who has had sex with The new regulations also include that they were the product of many another man in the preceding five provisions for “exceptional distribu- years of consultation.9 According to years; tion.” Specifically, cells, tissues or Health Canada, in 1999 the House of • persons who have injected illegal organs that have not been determined Commons Standing Committee on drugs in the preceding five years; safe for transplant (including because Health recommended that national • hemophiliacs who have received the donor would be excluded under standards for cells, tissues and organs human-derived clotting factor the above mentioned criteria) can be intended for transplant be made man- concentrates; used if another organ determined to datory by incorporation by reference • persons who have engaged in sex be safe is not available, the transplant into regulations under the Food and for money or drugs in the preced- physician authorizes the exceptional Drugs Act. Therefore, national safety ing five years; distribution, and the recipient gives standards were published in June • persons who have had sex in his or her informed consent.6 2003 for public consultation. the preceding 12 months with Some organ transplant specialists Health Canada then began drafting persons in any of the above cat- and gay rights activists condemned federal regulations around these stan- egories, or with persons known to the new regulations, stating that dards. The final version of the regu- have HIV, hepatitis B (HBV) or they unreasonably singled out gay lations was published in June 2007. hepatitis C (HCV); men as a health risk and that they Health Canada said that input was

VOLUME 13, NUMBER 1, JULY 2008 29 canadian developments

sought from transplant experts and used in an assessment that evaluates Requirements, CSA Standard, Annex E, E.1. others at each stage of the process.10 behaviours and medical circumstanc- 5 Ibid., E.2. Health Canada further explained es, and is not meant to target specific 6 Safety of Human Cells, Tissues and Organs for in the news release that donors are groups.”12 Transplantation Regulations, s. 40. 7 “Ban on gay men donating organs scientifically assessed for risk factors for certain unjustifiable: MD,” Hamilton Spectator, 9 January 2008, diseases (i.e., HBV, HCV and HIV) p. A6; J. Miner, “Organ donor rules cut gay men,” The For the text of the regulations, see London Free Press, 9 January 2008, p. A3; C. Spencer, because, in rare cases, these diseases http://canadagazette.gc.ca/partII/ “Time for a second opinion? Non-gay policy should be rethought: organ transplant specialist,” The Winnipeg Sun, may be present but undetectable in 2007/20070627/html/sor118-e.html. 9 January 2008, p.7; “Halifax doctors object to Health the donor through testing. Health Canada ban on organ donations from gay men,” Halifax Chronicle Herald, 8 January, 2008; and R. Howe, “Donor- Canada said that the risk factors were discrimination wrong,” The Daily News (Halifax), 11 determined by a group of Canadian January 2008, p. 15. 1 Safety of Human Cells, Tissues and Organs for 8 J. Kirby et al, “Being sensitive won’t kill us,” The Ottawa transplantation experts and are the Transplantation Regulations, SOR/07-118. Citizen, 25 January 2008. internationally accepted practice for 2 Ibid., s. 18(a),(c) and (d). 9 11 Health Canada, “Fact Sheet — Safety of Cells, Tissues screening donors. 3 Ibid., s.18(b), which refers to Cells, Tissues, and Organs and Organs (CTO) for Transplantation,” news release, 28 Finally, Health Canada asserted for Transplantation and Assisted Reproduction: General January 2008. that the risk criteria are not discrimi- Requirements, CSA Standard, CAN/CSA-Z900. 10 Ibid. 4 “Exclusionary Criteria for Risk Factors Associated 11 Ibid. natory: “These risk factors are based with HIV, HBV, and HCV,” Cells, Tissues, and Organs strictly on scientific evidence and are for Transplantation and Assisted Reproduction: General 12 Ibid.

Complaint filed concerning judge’s conduct

During a trial in December 2007, when it was disclosed that the complainant was living with HIV and hepatitis C, the presiding judge ordered the complainant to be masked or testify electronically from another courtroom. The Canadian HIV/AIDS Legal Network and the HIV& AIDS Legal Clinic of Ontario (HALCO) lodged a formal complaint with the Ontario Judicial Council1 in response to what they termed “shockingly discriminatory thinking and practice.”2

The incident took place during Lee employing a screen or technological with certain bodily fluids, but Justice Wilde’s trial for allegedly sexually device and, finally, that the com- Douglas rejected this evidence and assaulting a fellow prisoner.3 In mak- plainant sit at a table behind counsel ordered the trial proceed with the ing the order, Justice Jon-Jo Douglas table.4 News reports also indicated witness masked or other protective of the Ontario Court of Justice that court staff wore latex gloves accommodation. Justice Douglas (Central East Region) expressed so as not to be exposed to the virus refused the Crown’s motion for a concern about a risk of HIV transmis- should it be on papers that the wit- mistrial.6 sion. ness had touched.5 The Crown therefore applied The judge suggested a number of The Crown attorney challenged to a higher court for a decision on protections which he would accept to this treatment of the witness, even to the matter. Justice Eberhard of the hear the witness’ evidence, such as the point of obtaining expert medical Superior Court of Justice dismissed a larger courtroom so that he would evidence that HIV and hepatitis C the Crown’s application noting that not be seated so close to the witness, are only transmitted through contact it is the trial judge’s jurisdictional

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right to take safety precautions in or disrespect for anyone. The letter tion of HIV-based stigmatization and the courtroom, “even if his decision of complaint further stated that: discrimination. In particular, both could be said to be ‘wrong.’”7 She organizations suggested that it would recognized that in dismissing the As lawyers working on HIV-related be appropriate to examine the extent application, she was placing a higher legal issues, we are deeply troubled by to which judges receive information value on trials proceeding without these reports of this sort of conduct by about HIV/AIDS, and related legal interference if decisions are made a judge (and other courtroom staff), and human rights questions, in the which appear to depart significantly within the jurisdiction of the trial course of judicial education. from the professional, ethical stan- judge, than on the protection of the dards that are required. This is, we To date, no official response to 8 witness’ right to be treated equally. think, a particularly extreme example the complaint has been received by Ultimately, Justice Douglas voluntari- of unacceptable conduct by a judicial either the Legal Network or HALCO, ly removed himself from the trial. officer. Yet it seems unlikely that beyond an acknowledgment of receipt. The letter of complaint from the misinformation about HIV/AIDS, Legal Network and HALCO to the and hence the potential for bias and 1 The Ontario Judicial Council is the agency that investi- Ontario Judicial Council noted that overtly prejudicial conduct, is limited gates complaints against provincially-appointed judges.

to just this instance. 2 ethical standards that guide Canadian Letter of complaint dated 17 January 2008 [on file with judges require them to conduct them- author]. selves and proceedings before them HALCO and the Legal Network 3 See the Canadian Courts section of this issue of the Review for a full account of the case. so as to ensure equality before the urged the Ontario Judicial Council 4 R. v. Wilde, Trial Proceedings (October 31, 2007), File No. law. This includes not being influ- to conduct an investigation into 07-2285/07-7709. enced by attitudes based on stereo- this particular incident and to take 5 L. Watt, “Judge’s actions met with outrage,” The Barrie type, myth or prejudice and avoiding appropriate steps to address the Advance, 1 February 2008, p. 19. comments, expressions, gestures or conduct of Justice Douglas. They 6 R. v. Wilde (December 4, 2007), File No. 07-7709. behaviour which reasonably may be also urged the Council to consider a 7 R. v. Wilde (December 12, 2007), File No. 07-314, para. 15. interpreted as showing insensitivity broader response to this manifesta- 8 Ibid., para. 35.

Health Canada releases report on supervised injection facility

A report prepared by an expert advisory committee appointed by Health Canada has provided further evidence of the effectiveness of Insite, the supervised injection facility (SIF) located in Vancouver. 1

Minister of Health Tony Clement • Over 8000 people have visited • Users of Insite are highly satisfied appointed the committee to review Insite to inject drugs, with 1506 with the services. the research that has been conducted people (18 percent) accounting • Insite staff have successfully on Insite and other SIFS around the for 86 percent of total visits. intervened in over 336 overdose world. The report was made public • Insite provides a clean, super- events since 2006, and no over- in April 2008. vised environment for injection dose deaths have occurred at the Among the consensus points pre- drug use, clean injection equip- site. sented by the expert committee were ment and nursing services includ- • There is no evidence that super- the following: ing treatment for skin abscesses. vised injection facilities influence

VOLUME 13, NUMBER 1, JULY 2008 31 canadian developments

rates of drug use in the commu- SIFs indicate that needle-sharing the British Columbia Supreme Court nity. decreases with increased use of the beginning 28 April 2008.7 • There is no evidence of increases facilities.4 in drug-related loitering, drug Commentators and advocates for 1 Health Canada, “Expert panel report on supervised dealing or petty crime in areas Insite viewed the advisory commit- injection site released,” news release, Ottawa, 11 April around Insite.2 tee’s report as generally positive, and 2008. noted that it confirms their research.5 2 Vancouver’s INSITE Service and Other Supervised Injection Sites: What Has Been Learned from Research? Final Report The advisory committee questioned As reported in previous issues of the Expert Advisory Committee on Supervised Injection conclusions reached in some studies editions of the Review, Insite is oper- Site Research. Prepared for the Hon. Tony Clement, Minister of Health, 31 March 2008. about the site’s impact on reducing ating on a temporary federal exemp- 3 Ibid. HIV infection. The committee said tion to the Controlled Drugs and 4 that it did not accept as entirely valid Substances Act. The current exemp- Ibid. 5 F. Bula, “Drug injection site saves lives: report,” The the mathematical modeling based on tion is set to expire on 30 June 2008. Leader-Post (Regina), 12 April 2008, p. B8. assumptions about baseline rates of Meanwhile, the two lawsuits alleging 6 A. Symington, “Supervised injection facility granted needle sharing and the risks of HIV that the federal government is over- another temporary extension; legal action launched,” transmission and other variables.3 stepping its jurisdictional bounds, HIV/AIDS Policy & Law Review 12(2/3) (2007): 21–23. 7 G. Joyce, “Safe injection facility in Vancouver in limelight The committee noted that self- as reported in the last issue of the when court challenges begin,” The Canadian Press, 13 reports from users of Insite and other Review,6 are scheduled to be heard by April 2008.

In brief

Changes to the of immigration applications should certain categories of claims should Immigration and Refugee be fast-tracked and what categories raise concern for any persons facing Protection Act proposed should not be processed at all; and stigma and discrimination or seen to in 2008 Budget the power to decide not to process be a burden on Canadian health and humanitarian and compassionate social services, including people liv- Bill C-50, Budget Implementation (H&C) applications submitted outside ing with HIV/AIDS. Act, 2008,1 passed second reading in of Canada.2 The fact that the bill eliminates the the House of Commons on 10 April If the Budget passes with these legal right to have an overseas H&C 2008, and was referred to the Finance measures, immigration applications application examined could negative- Committee. made on or after 27 February 2008 ly affect people living with HIV for The legislation included pro- would be affected. whom H&C applications are the only posed changes to the Immigration It remains to be seen how these recourse. If Bill C-50 is passed, their and Refugee Protection Act (IRPA) changes could affect prospective applications may never be examined. that would give the Minister immigrants and refugees living with A coalition of non-governmental of Citizenship and Immigration or affected by HIV/AIDS. The fact organizations is calling on the gov- increased discretion — including that the Minister would be able to ernment to sever the IRPA amend- the power to decide what categories issue instructions not to examine ments from Bill C-50 and refer

32 HIV/AIDS POLICY & LAW REVIEW canadian developments

them to the Standing Committee • 12 percent of male and 26 percent to reduce the sharing of used crack on Citizenship and Immigration for of female offenders are identified pipes and thereby reduce the trans- extensive public hearings. as having very serious mental mission of communicable diseases health problems.5 such as hepatitis C and HIV. As reported in the December 2007 Independent review The report contains 109 recommen- edition of the Review, Ottawa City of prisons released dations, divided into five key areas: Council had voted to discontinue increasing offender accountability; its funding of the Safer Crack Use The report of the Correctional Services eliminating drugs from prisons; devel- Initiative in July 2007.8 A coalition of Canada (CSC) Independent Review oping employability and employment of community groups had pledged to Panel, chaired by Rob Sampson, for- skills; renewing physical infrastruc- keep the program running until the mer Minister of Corrections for the ture; and eliminating statutory release end of 2007, amid hopes that more Ontario Government, was released in and moving to earned parole. secure funding would be in place by December 2007.3 Several of the Panel’s recommen- that time. In preparing the report, entitled A dations are of particular relevance to The province will provide Roadmap to Strengthen Public Safety, HIV/AIDS. Firstly, the Panel recom- $287,000 to Somerset Community the panel visited penitentiaries, parole mends that the Canada Labour Code Health Centre to run the program for offices and halfway houses; met with be amended to require mandatory one year.9 prison staff, union representatives, blood testing of prisoners following The mayor and several city coun- CSC executives and non-governmen- occupational exposures of prison cillors expressed their disappointment tal organizations; and accepted writ- staff, and the introduction of manda- that the province had stepped in to ten submissions. tory testing for infectious diseases support the program in opposition to The Panel describes its report upon incarceration.6 their earlier decision to pull its fund- as “charting a roadmap that is a Secondly, while the Panel recom- ing. The councillor who had origi- transformation of the way in which mends numerous measures to control nally brought the motion to cancel CSC does business.”4 It states that the introduction of illegal drugs into the program stated that the money transformation is needed in large part prisons — including more drug dog would be better spent on a residential because of the changing offender pro- detection teams and perimeter sur- drug treatment centre.10 file, which it describes as follows: veillance, and more thorough searches of vehicles and people entering • nearly 60 percent of persons penitentiaries — it makes no recom- Federal government entering prison are serving sen- mendation to provide harm reduction diverts funding from tences of less than three years and materials within prisons, such as community-based organi- have histories of violence; through controlled needle exchange zations to vaccine initiative • there has been an increase of programs.7 more than 100 percent in the pro- In 2004, the then federal govern- portion of offenders who are clas- ment announced that annual fund- sified as maximum security upon Provincial funding ing through the Federal Initiative to admission; announced for Ottawa Address HIV/AIDS in Canada would • one in six prisoners now have harm reduction program reach $84.4 million by 2008-2009. known gang or organized crime The current federal government affiliations; In December 2007, the Ontario has committed to reaching this tar- • approximately four out of every Ministry of Health and Long Term get, but HIV/AIDS organizations five offenders arrive with seri- Care announced that it will fund within Canada are seeing their fund- ous substance abuse problems, of the city of Ottawa’s safe inhalation ing reduced. Community AIDS whom half have committed their program, which provides free, clean programs in Ontario, for example, crimes while under the influence crack pipes to people who smoke ille- have had their federal funding cut of drugs or alcohol; and gal drugs. The program is intended by approximately 30 percent during

VOLUME 13, NUMBER 1, JULY 2008 33 canadian developments

the last fiscal year, with similar cuts sition members of parliament have 7 Ibid., pp. 61–2. expected in other provinces and ter- stated that they support the new vac- 8 “Ottawa: Crack pipe program cancelled by city council,” ritories.11 cine initiative, but that the funding HIV/AIDS Policy & Law Review, 12(2/3) (2007): 29–30. In February of 2007, Prime should not come out of existing HIV 9 M. Pearson, “Crack program,” The Ottawa Citizen, 22 December 2007.

Minister Stephen Harper announced research, prevention and treatment 10 14 “Ottawa mayor, councillors pan Ontario plan to fund a collaborative initiative with the programs in Canada. crack pipe program,” CBC.CA News, 24 December 2008. Bill & Melinda Gates Foundation, 11 G. Galloway, “Ottawa redirects AIDS funds for Gates the Canadian HIV Vaccine Initiative, initiative,” Globe and Mail, 29 November 2007. which is intended to contribute to 12 Office of the Prime Minister, “Canada’s New the global effort to develop an HIV 1 The Budget Implementation Act, 2008 is the short title Government and Gates Foundation announce support for Bill C-50. The full title is An Act To Implement Certain for HIV/AIDS vaccine research,” news release, Ottawa, 20 vaccine. Canada committed to con- Provisions of the Budget Tabled in Parliament on February February 2007. tribute up to $111 million, while the 26, 2008 and To Enact Provisions To Preserve the Fiscal Plan 13 “Liberals, Tories bicker over funding on World AIDS Set Out in That Budget, 2nd Sess., 39th Parl., 2008. Gates Foundation is to provide $28 Day; Harper government accused of diverting $15M from 2 national strategy,” The Edmonton Journal, 2 December 12 Ibid., cl. 116. million. 2007, p. A5. 3 Report of the Correctional Service of Canada Review 14 Canadian HIV/AIDS organiza- Panel: A Roadmap to Strengthening Public Safety, Minister R. Bruemmer, “Local care was cut to fund vaccine tions have charged that $15 million of Public Works and Government Services of Canada, search: Liberals; Bill Gates getting cash patients need, October 2007. MP Says,” The (Montreal) Gazette, 2 December 2007, p. has been taken out of the national A3; Canadian HIV/AIDS Legal Network, Canadian AIDS 4 HIV/AIDS strategy and redirected Ibid., at p. v. Society and Canadian Treatment Action Council, “National AIDS organizations call on Ottawa to guarantee current 5 Ibid. towards the Canadian HIV Vaccine funding for local AIDS programs and services,” news Initiative.13 Organizations and oppo- 6 Ibid., p. 62. release, Toronto and Ottawa, 29 November 2007.

34 HIV/AIDS POLICY & LAW REVIEW INTERNATIONAL DEVELOPMENTS

This section provides brief reports on developments in HIV/AIDS-related law and policy outside Canada. (Cases before the courts or human rights tribunals are covered in the section on HIV in the Courts — International.) We welcome information about new developments for future issues of the Review. Readers are invited to bring cases to the attention of Richard Pearshouse, editor of this section, at [email protected].

Thailand: government re-launches war on drugs and people who use drugs

On 2 April 2008, Thailand Prime Minister Samak Sundarajev announced a new national drug strategy. Called “Thai Power, To Avoid the Danger of Drugs,” the strategy is intended to run for six months (from April to September 2008) and includes a number of activities designed to reduce the number of people who use drugs in Thailand.

The strategy focuses on rehabilita- services for people who use drug, announced that he would use the tion through compulsory treatment nor does it mention HIV/AIDS.1 The same tactics as employed in the 2003 and incarceration of people who use strategy provides little indication of war on drugs by his political prede- drugs (particularly those who are how it is to be implemented. cessor, Thaksin Shinawatra. considered dependent on drugs or The government’s intention to According to Human Rights “hardcore users”). Notably, the pol- launch the new strategy was revealed Watch, the first three months of the icy does not include harm reduction in February 2008, when Samak 2003 “war on drugs” led to some

VOLUME 13, NUMBER 1, JULY 2008 35 international developments

2275 extrajudicial killings; arbitrary Sakda Puekchai, chairperson of the between February and April in 2003, inclusion of drug suspects on poorly Thai Drug Users’ Network, stated, “If of whom only 1370 were involved in prepared government “blacklists” or the war on drugs starts again, there drug dealing; the remainder had no “watchlists”; intimidation of human is no doubt that our members will be link to drugs.10 None of the killers of rights defenders; violence, arbitrary forced to go underground, and will these people have been tried. arrest and other breaches of due pro- not be reached by health services, cess by Thai police; and coerced or giving rise to new HIV cases.”7 – Karyn Kaplan and Richard Pearshouse mandatory drug treatment.2 On 23 April 2008, Thai civil soci- In disclosing the new drugs strat- ety groups, led by the Thai AIDS egy, Samak stated, “I will not set a Treatment Action Group and the Thai Karyn Kaplan ([email protected]) target for how many people should Network of People Living with is Director, Policy and Development for the die.… We will pursue a suppres- HIV/AIDS, demonstrated at the Thai Drug Users’ Network. sion campaign rigorously. There will meeting of the UNAIDS Programme be consequences.”3 Other media Coordinating Board in Chiang Mai reports quoted Samuk as stating. “It (northern Thailand), demanding that is impossible to avoid killings when drug policy include harm reduction, implementing drug suppression. that drug users be involved in policy When the crackdown is underway, development, and that the govern- killings will take place.”4 ment cease repressive, punitive and Echoing these comments, compulsory measures. Thailand’s Interior Minister (and In recent months, a number of head of the new national centre reports of serious human rights viola- tasked with solving the drug prob- tions have been made. Human Rights lem) Chalerm Yubamrung, said: Watch has reported at least four killings of alleged drug traffickers across For drug dealers, if they do not want Thailand.8 There have also been to die, they had better quit staying reports of people who inject drugs 1 Health and Development Networks, “Spotlight: on that road.... [D]rugs suppression discontinuing ARV treatment because Thailand’s new drug policy — A brief summary.” in my time as Interior Minister will of fear of going to a government 2 Human Rights Watch, Not Enough Graves: The War on follow the approach of [former Prime Drugs, HIV/AIDS and Violations of Human Rights, June 2004. health clinic; of seizure of assets of Available via www.hrw.org. Minister] Thaksin. If that will lead to 3 3000–4000 deaths of those who break suspected drug dealers without due “Thailand PM targets drug dealers,” BBC News, 23 process; and of (one case) of torture February 2008. At http://news.bbc.co.uk/1/hi/world/ the law, then so be it. That has to be asia-pacific/7260127.stm. and illegal detention of a suspected done.... For those of you from the 4 “Samuk denies link in killings in new drug war,” The 9 opposition party, I will say you care drug dealer. Nation, 25 February 2008. more about human rights than drug The decision of the government 5 “Thailand PM targets drug dealers,” BBC News, 23 problems in Thailand.5 of Thailand to re-launch its “war on February 2008. drugs” follows incomplete and large- 6 “Activists fear new war on drugs,” The Nation, 22 February 2008. The announcement of a new drug ly futile investigations of the human 7 “Call for restraint in govt’s latest anti-drug campaign,” policy was met with widespread rights abuses in 2003. In August The Nation, 4 April 2008. criticism. Former Senator Kraisak 2007, the previous (military) govern- 8 Human Rights Watch, “Thailand’s ‘War on Drugs,’ ”, Chonhavan stated, “I wouldn’t want ment appointed a committee, chaired backgrounder, 12 March 2008. At www.hrw.org/english/ docs/2008/03/12/thaila18278.htm. the minister to make a statement in by former Attorney General Khanit 9 See Health GAP, Thai AIDS Treatment Action Group, such a manner, which is like giv- na Nakhon, to investigate the extraju- “Update on the war on Thai drug users,” 20 April 2008. ing the green light to police to use dicial killings that took place during 10 “Most of those killed in war on drug not involved in drug [sic],” The Nation, 27 November 2007 (at violence on drug dealers. This may the first “war on drugs.” http://nationmultimedia.com/breakingnews/read. prompt an urge to set up a ‘kill The final report was not made php?newsid=30057578); Human Rights Watch, “Thailand: Prosecute Anti-Drugs Police Identified in Abuses”, record’ to comply with the get-tough public, although figures were online, 7 February 2008 (at http://hrw.org/english/ policy.”6 released: 2819 people were killed docs/2008/02/07/thaila17993.htm).

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Switzerland: Statement on sexual transmission of HIV by people on ART

In February 2006, Swiss experts issued a statement concluding that HIV-positive individuals who are on effective antiretroviral therapy (ART), and who do not have any sexually transmitted infections (STIs), cannot transmit HIV through sexual contact. The statement was authored by four of Switzerland’s leading AIDS experts and was issued on behalf of the Swiss Federal Commission for HIV/AIDS.1

The statement reviews a number of • does not have any other sexually Organization (WHO) responded by studies of sero-discordant couples transmitted infections. observing that: and rates of HIV transmission, with and without adherence to ART, by According to the authors: To prevent transmission of HIV, the person in the couple living with UNAIDS and WHO strongly recom- HIV. The authors concede that the During effective antiretroviral therapy, mend a comprehensive package of evidence does not conclusively prove free virus is absent from blood and HIV prevention approaches, including correct and consistent use of con- that effective ART prevents HIV genital secretions. Epidemiologic and doms.… Research suggests that when transmission, because scientifically biologic data indicate that during such treatment, there is no relevant risk of the viral load is undetectable in blood it is not possible to prove that an transmission. In the case of total sup- the risk of HIV transmission is signifi- improbable event will not occur. But pression of the viral load, the residual cantly reduced. However, it has not the authors make an analogy to the risk of transmitting HIV in sexual been proven to completely eliminate 3 public statements in 1986 that HIV activity without condoms is consider- the risk of transmitting the virus. transmission could not occur through ably below 1:100 000. Residual risk tongue-kissing — which, similarly, can not be scientifically excluded, but For its part, the Public Health Agency could not be scientifically excluded is, in the judgment of the Commission of Canada (PHAC) said that it “con- as a possibility, however remote. and the organizations concerned, neg- tinues to emphasize that sexually After reviewing the scientific lit- ligibly small.2 active people should practise safer erature, the statement notes that “[a]n sex, which includes using condoms HIV-infected person on antiretroviral After reaching this conclusion, the consistently and correctly with their therapy with completely suppressed statement then went on to address sex partners.”4 viremia” — also known as “effective the implications of such a position The French advocacy group, Act ART”— “is not sexually infectious, for physicians, people living with Up Paris, observed that the statement i.e., cannot transmit the virus through HIV/AIDS, HIV prevention pro- would not affect the estimated 20 sexual contact.” According to the grams, and the legal system (dis- percent of people living with statement, this position is valid pro- cussed below). HIV/AIDS who are not on ART, nor vided that a person living with HIV: an estimated 40 percent of people Raising concern living with HIV/AIDS who are under • adheres to his or her HIV treat- The statement drew immedi- treatment but who have a residual ment and the effectiveness of that ate responses from organizations viral load despite close adherence to treatment is regularly evaluated concerned that the position might ART. The group also claimed that by a doctor; undermine traditional public health the statement is not applicable to • has an undetectable viral load messages about the importance of homosexual relationships nor to situ- (<40 copies/ml) for at least six safer sex in preventing HIV infec- ations involving anal sex due to bias months; and tion. UNAIDS and the World Health in the scientific studies.5

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The Swiss statement was also criti- The statement itself notes that when 1 P. Vernazza et al, “Les personnes séropositives ne souffrant d’aucune autre MST et suivant un traitement cized for misreading the data of ear- evaluating liability in a case of HIV antirétroviral efficace ne transmettent pas le VIH par lier studies and for overlooking recent transmission, (Swiss) courts will have voie sexuelle,” Bulletin des médecins suisses 89(5) (2008): research showing that undetectable to take into account that HIV-positive 165–169. At www.saez.ch/html_f/2008/2008-05.Html. 2 viral loads in the blood do not cor- people who are on ART and who do P. Vernazza et al. at 167. respond to undetectable viral in other not have an STI cannot transmit HIV 3 UNAIDS/WHO, Statement: Antiretroviral Therapy and Sexual Transmission of HIV, 1 February 2008. At 6 bodily fluids, notably semen. sexually. The statement makes clear www.who.int/hiv/mediacentre/080201_ that the Commission considers that hivtransmission_en.pdf. Legal implications 4 unprotected sex between a person liv- PHAC, PHAC Continues to Emphasize Safer Sex for Preventing HIV Transmission, statement on the PHAC web- While the situation is unclear and ing with HIV/AIDS who is on ART site at www.phac-aspc.gc.ca/aids-sida/new-nouv-eng.html.

(legally) untested, some commenta- and who does not have another STI, 5 Act Up Paris, “Avis des médecins suisses sur la trans- tors suggest that the Swiss statement and an HIV-negative person, does not mission du VIH: cherchez l’erreur,” news release, Paris, 30 might assist a person accused of meet the criteria for the crimes of “an January 2008. 6 S.R. Hosein, Swiss Guidelines Take a Troubling Turn, exposing another person to HIV to attempt at propagation of a dangerous Canadian AIDS Treatment Information Exchange, March establish that he or she was not act- disease” (Section 231 of the Swiss 2008. At www.catie.ca/catienews.nsf/CATIE-NEWS. 7 ing recklessly. The statement might Penal Code) or of “an attempt to cause 7 See, for example, E.J. Bernard, “Swiss statement on sexu- be useful to establish that, in specific grievous bodily harm” (Sections122, al HIV transmission has major legal implications,” Criminal HIV transmission blog, 1 February 2008, at 8 circumstances, unprotected sex did 123 or 125 of the Swiss Penal Code). http://criminalhivtransmission.blogspot.com/2008/ not pose a “significant risk” of HIV 02/swiss-statement-on-sexual-hiv.html. transmission to another person. –Richard Pearshouse 8 P. Vernazza et al., p. 168.

U.S.: PEPFAR reauthorization bills pass House, Senate committee

On 2 April 2008, the U.S. House of Representatives passed a bill (H.R. 5501) to reau- thorize the President’s Emergency Plan for AIDS Relief (PEPFAR). The House bill would authorize the appropriation of US$50 billion over the next five years — 40 percent more than the US$30 billion requested by President George W. Bush.

President Bush introduced PEPFAR US$9 billion out of the US$50 bil- is currently the largest donor to the in his 2003 State of the Union lion would be allocated to efforts to Global Fund, followed by France, Address, and Congress first funded fight malaria and tuberculosis, with Japan and the European Commission. the program in 2004 at US$15 billion the rest going to AIDS. The Global UNAIDS estimated in 2005 that over five years. Under the current Fund to Fight AIDS, Tuberculosis over US$22 billion would be required legislation, PEPFAR funding must be and Malaria would receive US$2 in 2008 for an effective response to reauthorized every five years. billion annually. The United States AIDS in the developing world, with

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half of the money needed for preven- Travel restrictions for would limit HIV-positive individuals tion efforts, a quarter for treatment people living with to no more than two annual visits to and care, and a quarter for support of HIV/AIDS the U.S., and would require them to orphaned and vulnerable children.1 prove that they have an adequate sup- However, in 2007, only US$10 bil- The Senate bill differs from the ply of antiretroviral medicines. lion was pledged by governments, House bill on one major issue. According to the European AIDS NGOs, and private donors.2 Senator John Kerry (D-Mass.) includ- Treatment Group, twelve countries The U.S. Constitution requires both ed language in the Senate bill amend- completely ban HIV-positive indi- chambers of Congress to pass legisla- ing the Immigration and Nationality viduals from entering their borders tion before it can be implemented by Act4 to remove restrictions on travel for any length of time.7 The U.S. the President. The Senate Foreign to the United States by people living is one of 74 countries that restrict Affairs Committee approved a version with HIV/AIDS. The Act currently travel by HIV-positive individuals to of the PEFPAR reauthorization bill bars HIV-positive individuals from some degree. The U.S. Department (S. 2731) on 13 March 2008, which is visiting or immigrating to the United of State does not provide data on the likely to come up for a vote before the States, but allows district-level offi- number of individuals refused entry full Senate in June 2008. The House cers in the U.S. Department of State into the country because of their and Senate bills are very similar. to grant discretionary waivers on HIV status. Both the House and Senate bills a case-by-case basis, as described would add Lesotho, Malawi and in regulations issued by the U.S. – Anna Dolinsky Swaziland to the 15 countries already Department of Homeland Security. participating in PEPFAR.3 In addi- The House bill did not include a Anna Dolinsky tion, both bills would also remove similar amendment. Representative ([email protected]) is in her last restrictions that, in previous years, Barbara Lee (D-Cal.) introduced a year at Georgetown University Law Center. required one-third of PEPFAR fund- stand-alone bill (H.R. 3337) to over- She completed her Masters in Public Health ing to be used for abstinence-only turn travel and immigration restric- at Johns Hopkins Bloomberg School of education. tions on HIV-positive individuals in Public Health. The language in each bill requires August 2007, but did not attempt to “balanced funding for prevention include similar provisions as part of activities for sexual transmission of PEPFAR reauthorization, in order to HIV/AIDS … including abstinence, ensure a fast approval of the PEFPAR delay of sexual debut, monogamy, bill on the House floor. fidelity and partner reduction….” HIV/AIDS advocates, includ- Neither of the proposed bills explic- ing non-governmental advocacy itly mentions condom use as part of organizations such as Immigration the balanced strategy. Equality and the Gay Men’s Health 1 UNAIDS, news release, Geneva, June 2005, quoted at In addition, the bills require the Crisis, are concerned that if Congress www.africafocus.org/docs05/hr0506.php. HIV/AIDS Response Coordinator does not amend the Immigration and 2 Ibid. in the U.S. Department of State to Nationality Act, HIV-positive indi- 3 The fifteen PEPFAR-funded countries are Botswana, Cote d’Ivoire, Ethiopia, Guyana, Haiti, Kenya, Mozambique, report and justify to Congress any viduals may soon face even harsher Namibia, Nigeria, Rwanda, South Africa, Tanzania, Uganda, program spending that uses less than restrictions on travel to the U.S.5 Vietnam and Zambia. 50 percent of funding for abstinence The Department of Homeland 4 8 U.S.C. 1182(a)(1)(A)(i)); (8 C.F.R. 212.4). and fidelity programs. The House Security is currently considering a 5 Immigration Equality, “Proposed regs tighten travel restrictions for HIV+ visitors,” news release, New York and Senate bill would ensure that revision to its administrative rules City, 15 November 2007. organizations that have a “moral or that would allow U.S. consular offic- 6 Issuance of a Visa and Authorization for Temporary religious objection” to any prevention es around the world to make quicker Admission into the United States for Certain Nonimmigrant Aliens Infected with HIV, 72 Fed. Reg. program or activity “shall not be dis- decisions about HIV waivers, but that 62,593 (Nov. 6, 2007) (to be codified at 8 C.F.R. 212). criminated against in the … issuance would also impose additional restric- 7 European AIDS Action Group, at of grants.” tions on travel.6 The proposed rules www.eatg.org/hivtravel/.

VOLUME 13, NUMBER 1, JULY 2008 39 international developments

HIV and human rights in U.N. drug control policy: making inroads, barely

Each year, U.N. member states gather for a week in Vienna at the Commission on Narcotic Drugs (CND), the central policy-making body within the U.N. system dealing with drug- related matters, “to exchange expertise, experiences and information on drug-related matters and to collaborate on a coordinated response to the global drug situation.”1

The deliberations are framed by the provisions prohibiting drug-related reduction, including law enforce- three conventions on drugs, whose activities. ment. In barely veiled criticisms of primary orientation is drug prohibi- However, the 2008 session of harm reduction advocates, he urged: tion and control.2 Ten years ago, at a the CND was notable for the atten- “Let us not shy away from this jargon 1998 Special Session on Drugs, the tion that human rights and public — harm reduction — just because U.N. General Assembly adopted a health considerations received during it has been appropriated by a vocal declaration to guide global action to the session, as well as the unprec- minority that has given to it a narrow counter “the world drug problem”3 edented involvement of NGOs. The and controversial interpretation.”7 and to achieve what the U.N.’s drug U.N. Office on Drugs and Crime control agency declared as the goal of (UNODC), the lead U.N. agency in a “drug-free world” within a decade.4 this area and one of the UNAIDS co- The 2008 session of the CND sponsors, issued a paper on “reducing launched a year-long process of the adverse health and social conse- The session was notable reviewing the past decade’s suc- quences of drug abuse.”5 cesses, culminating in decisions to In his opening speech, UNODC for the attention be made at the 2009 CND session Executive Director Antonio Maria that human rights that will shape international law and Costa declared that health is a basic and public health U.N. policy and action on illicit drugs human right and a basic principle of for years to come. Given the extent the drug control system. He noted considerations received, to which illicit drug use and human that implementation of the drug and the unprecedented rights abuses against people who use conventions “must proceed with due involvement of NGOs. drugs drive the HIV pandemic, it is regard to human rights.”6 He also critical that these be considered in declared that harm reduction must be assessing and defining global policy part of the way forward. on drugs. However, the ambivalence of this This year’s session of the CND commitment was evident: Rather than (10–14 March 2008) was to be the explicitly endorsing various evidence- While the president of the occasion for expert assessment based interventions that protect and International Narcotics Control Board and debate about the past decade’s promote the health of people who use (INCB), Philip Emafo, did not men- successes and the way forward. drugs, and that are normally consid- tion supervised injection sites in Unfortunately, but unsurprisingly, ered as signature elements of harm his address to the member states, most states did little more than reit- reduction programming (e.g., needle the INCB’s 2007 report, issued just erate national positions and recite exchange programs, substitution treat- days before, again criticised Canada ostensible “successes” in their ment and supervised injection facili- for allowing such a site (Insite in national responses, focussed primar- ties), Costa declared that “everything Vancouver’s Downtown Eastside) ily on enforcement of various legal we do at UNODC” amounts to harm — a criticism rejected by Canadian

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NGOs as based on wilful ignorance Finally, member states at the 2008 interviews with NGO representatives, were of the evidence of the U.N.’s own session of the CND adopted the first- prepared by the Hungarian Civil Liberties legal advisors.8 ever resolution making reference Union and are available via www.drogriporter.hu. On the first day of the CND ses- to human rights in relation to the sion, a well-attended side event on U.N.’s drug control machinery and drug control and human rights was policy.12 Major proponents of the held to launch Recalibrating the resolution were the United Kingdom, Regime,9 a new report outlining the Switzerland, Argentina, Uruguay and legal basis for a human rights-based Bolivia, but the resolution was drasti- approach to international drug policy. cally weakened through the combined 1 “Commission on Narcotic Drugs,” Speakers from the International Harm efforts of countries such as China, www.unodc.org/unodc/en/commissions/index.html. 2 Single Convention on Narcotic Drugs, 1961, 520 UNTS Reduction Association (IHRA, the Japan, Pakistan, Thailand, Nigeria, 204 (as amended by the 1972 Protocol Amending the Canadian HIV/AIDS Legal Network Canada and the U.S. Single Convention on Narcotic Drugs, 1961, 976 UNTS 3); Convention on Psychotropic Substances, 1971, 1019 and Human Rights Watch highlighted In the face of blatant and repeated UNTS 175; Convention Against the Illicit Traffic in Narcotic such human rights concerns as the obstructionism by China, Uruguay Drugs and Psychotropic Substances, 1988, U.N. Doc. E/ 10 CONF.82/15 (1988), reprinted in (1989) 28 ILM 493; all death penalty for drug offences; and briefly broke with the rule that no available via www.unodc.org. how strict enforcement of criminal resolutions can be adopted except 3 U.N. General Assembly, Political Declaration laws against drugs undermine HIV by consensus among all member (“Declaration on the Guiding Principles of Drug Demand Reduction, Resolution”), U.N. Doc. A/Res/S-20/2 (1998). prevention and treatment efforts and states, calling instead for the human 4 P. Arlacchi, Executive Director, U.N. Office for Drug lead to other human rights abuses, rights resolution to be put to a vote. Control and Crime Prevention. “Towards a drug-free such as the wave of extrajudicial kill- However, in the end, a deal was world by 2008: we can do it,” UN Chronicle 1998; 35(2). At www.un.org/Pubs/chronicle/1998/issue2/0298p4p.html. ings by state agents during Thailand’s brokered that allowed the much- 5 At www.unodc.org/documents/prevention/ 2003 intensified war on drugs. weakened resolution to pass by con- Reducing-adverse-consequences-drug-abuse.pdf. 13 Numerous representatives of the Thai sensus. 6 A. Costa, UNODC Executive Director, remarks to delegation attended the session to While the resolution ultimately opening plenary, U.N. Commission on Narcotic Drugs, 51st Session, 10 March 2008. At www.unodc.org/india/ react publicly to the criticisms. says little of substance about the cnd_ed_remarks.html. The NGO presence was also felt relationship between drug control 7 Ibid. in the plenary sessions. Numerous policy and human rights, it does at 8 Canadian HIV/AIDS Legal Network, “Latest report form NGO statements were delivered least officially open the door to col- United Nations drug control body misses the mark,” news release, Toronto, 4 March 2008, available via in the plenary, highlighting human laboration between the UNODC www.aidslaw.ca/media. rights and health concerns, and and the U.N.’s human rights bodies 9 D. Barrett et al,. Recalibrating the Regime: The Need for a Human Rights-Based Approach to International Drug Policy, including a statement on behalf of (e.g. the Office of the U.N. High Beckley Foundation Drug Policy Program, 2008. Available the International Network of People Commissioner for Human Rights), via www.aidslaw.ca/drugpolicy or at 11 www.idpc.info/php-bin/documents/BFDPP_RP_ Who Use Drugs (INPUD). A day- providing an opportunity for further 13_Recal_Regime_EN.pdf. long official NGO forum was hosted efforts to advance human rights- 10 See R. Lines, The Death Penalty for Drug Offences: by the Vienna NGO Committee, as based analyses of drug policy. A Violation of International Human Rights Law, International Harm Reduction Association, 2007. a venue to hear reports back from At www.ihra.net/uploads/downloads/NewsItems/ numerous regional consultations with – Richard Elliott DeathPenaltyforDrugOffences.pdf. civil society from around the world 11 See all NGO statements at www.idpc.info/php-bin/ documents/ngo_statements2cnd2008.pdf. that constitute a parallel process to 12 The text of the resolution is available on the website of the governments’ year-long review. Richard Elliott ([email protected]) is the the UNODC via www.unodc.org/unodc/en/commissions/ A follow-up NGO forum Executive Director of the Canadian CND/session/51.html. (“Beyond 2008”) in July 2008 will HIV/AIDS Legal Network. A more detailed 13 For a more detailed description of the process by report on the 2008 CND session has which the resolution on human rights was gutted, be a venue for civil society organiza- see “The life of a human rights resolution at the UN tions to debate and develop three pro- been prepared by the International Drug Commission on Narcotic Drugs,” 22 April 2008, (at Policy Consortium (IDPC): www.idpc. www.ihrablog.net/2008/04/life-of-human-rights-resolution- posals to states for their consideration info/php-bin/documents/IDPC_BP_08_ at-un.html); and the summary description in the IDPC’s report of the proceedings at the 2008 CND session, in charting the future course of U.N. RptProcedings2008CND_EN.pdf. Video pp. 9–11 (at www.idpc.info/php-bin/documents/ drug policy. clips of events at the CND, including IDPC_BP_08_RptProcedings2008CND_EN.pdf).

VOLUME 13, NUMBER 1, JULY 2008 41 international developments

In brief

Russia denies HIV a hospital specialised in the treat- it is consistent with the need to treatment to prisoner ment of AIDS and concomitant dis- improve our prison healthcare sys- eases.”3 On a number of occasions tem and overall public health.” He Vasily Aleksanyan was a senior law- in December 2007 and January 2008, requested the California Department yer for Yukos, the Russian petroleum the ECHR reiterated this request, of Corrections and Rehabilitation “to company. Senior executives of the but it was ignored by Russian prison determine the risk and viability of company, Mikhail Khodorkovsky and authorities.4 such a program by identifying one Platon Lebedev, were arrested in 2003 Aleksanyan’s trial was scheduled state prison facility for the purpose on charges of large-scale fraud and tax to commence on 5 February 2008, of allowing non-profit and health evasion.1 In March 2006, Aleksanyan although it was suspended due to agencies to distribute sexual barrier was appointed executive vice-presi- his ill health. The court refused to devices.”8 dent of the company and a month later release Aleksanyan on bail.5 On 8 A New York Times editorial was detained on charges of embezzle- February 2008, he was transferred accused the Governor of a lack of ment and money laundering. from pre-trial detention facilities to political courage, noting that “[a] On 7 April 2006, Aleksanyan’s Moscow’s City Clinical Hospital No. small, exploratory program falls far request for pre-trial release on bail 60 to receive medical care. Media short of the mass distribution effort was denied. His pre-trial deten- report that he was under 24-hour sur- that the system clearly needs.”9 tion was extended on a number of veillance and was handcuffed to his occasions. In September 2006, hospital bed for a week after being – Richard Pearshouse Aleksanyan was found to be HIV- transferred.6 positive. His health deteriorated considerably as he suffered from a – Richard Pearshouse number of AIDS-related conditions. Australia to legislate In December 2007, doctors con- to remove same-sex cluded he had most likely contracted California: Governor discrimination tuberculosis while in prison. In vetoes another prison February 2008, Aleksanyan was diag- condom bill, but leaves On 30 April 30 2008, Australia nosed with non-Hodgkins lymphoma. door ajar Attorney-General Robert McCelland Despite recommendations from announced the government’s inten- doctors that he undergo in-patient In October 2007, California Governor tion to introduce legislation to examination and treatment in the Arnold Schwarzenegger vetoed a remove same-sex discrimination from Moscow AIDS Centre, prison author- bill that would have permitted the a range of Commonwealth legislation ities denied antiretroviral treatment distribution of condoms and other and programs.10 and other forms of medical care and safer sex devices in that state’s pris- According to the Attorney- treatment to Aleksanyan. Aleksanyan ons. The measure, Assembly Bill General’s news release, areas where claimed that he was denied treatment 1334, was sponsored by Sandre discrimination will be removed because he had refused to testify Swanson (Democrat) and was include tax, superannuation, social against his former Yukos bosses.2 similar to Assembly Bill 1677 that security, health, aged care, veterans’ The European Court of Human Schwarzenegger had vetoed a year entitlements, workers’ compensation Rights (ECHR), in an interim mea- previously.7 and employment entitlements. The sure issued on 27 November 2007, However, in his veto message, government will begin to introduce requested the Russian government Schwarzenegger stated that “con- the legislation in May 2008, and to “secure immediately … the in- dom distribution in prisons is not foresees that all measures should be patient treatment of the applicant in an unreasonable public policy and implemented by mid-2009.

42 HIV/AIDS POLICY & LAW REVIEW international developments

The commitment follows a nation- just special AIDS statutes or labour ity” or “other status” (e.g., Malawi, al inquiry by the Human Rights and codes — in a series of national Mozambique and South Africa). Equal Opportunities Commission and monographs from 14 English-, Five of the monographs refer to the launch of the report Same Sex: Portuguese- and French-speaking gender inequalities as requiring a Same Entitlements in 2007.11 African jurisdictions.15 The Digest legislative response in the context of However, the changes will not is designed to enhance compliance the customary legal traditions. Some allow people in same-sex relation- with legal frameworks relating to monographs highlight the particular ships to marry. When he announced HIV/AIDS in the world of work. vulnerability of young women and the government’s intention, The good practices identified girls to forced unprotected sexual McClelland stated, “The government in the Digest use as a benchmark relations with male relatives and believes that marriage is between a the relevant international labour hence to HIV/AIDS infection, as man and a woman so it won’t amend standards — in particular, the imposed by customary rules (e.g., the Marriage Act…. But in all other Discrimination (Employment and Botswana, Lesotho and Malawi). areas that we’ve identified, the issue Occupation) Convention, 1958 Others report that customary rules of discrimination against same-sex (No.111), and the ILO’s Code of help mitigate the impact of the dis- couples will be removed.”12 Practice on HIV/AIDS and the World ease on persons living with On this particular issue, the cur- of Work (2001). In addition, the HIV/AIDS (e.g., Ethiopia and rent (Labor) Government’s policy Digest is rich in gender-sensitive Democratic Republic of Congo). overlaps with that of the previous assessments of the texts.16 Where labour laws includes provi- (Liberal) Government under John Most national monographs note sions on HIV/AIDS, most ban work- Howard. Prior to 2004, marriage the general influence of the inter- related testing or screening, protect was not defined in the Marriage Act national human rights instruments against dismissal based on real or (1961). The Marriage Legislation that guarantee equality and freedom perceived HIV status, establish a duty Amendment Act (2004) inserted a def- from discrimination. According to to provide information and aware- inition into Section 5(1) of that Act the Digest, one approach adopted by ness-raising, and provide the right to to read: “Marriage, means the union certain states has been to introduce care and support for employees living of a man and a woman to the exclu- a dedicated law on the subject (e.g., with HIV. sion of all others, voluntarily entered HIV-specific legislation) that includes The Digest notes, however, that into for life.” a chapter or division reflecting the while such statutory protection However, the current Government specific needs of the world of work should amount to a serious deter- does support the development of (e.g., Benin and Togo). rent to HIV-related acts of stigma a national register of same-sex rela- Another marked trend is to include or discrimination, very few legal tionships.13 specific HIV/AIDS-related provisions complaints have been observed in in the general labour or employ- the countries involved (Botswana, – Richard Pearshouse ment law (e.g., Botswana, Lesotho, Burkina Faso, Democratic Republic Mozambique, South Africa and those of Congo, Malawi, South Africa and French-speaking states that will fol- Zimbabwe). Fear of stigma attached low the proposed Uniform Labour to the revelation of HIV status, as Law currently being developed by the well as the lack of realistic legal ILO publishes digest of Organisation pour l’harmonisation remedies, may be responsible for good legislative practices du droit d’affaires). this situation. in Africa Another identified approach for establishing a legal framework in – Jane Hodges The ILO recently published a Digest favour of people living with of Good Legislative Practices HIV/AIDS, especially in the absence Relating to HIV/AIDS in Selected of specific HIV/AIDS provisions, is 14 African Countries. The Digest a constitutional provision prohibiting Jane Hodges ([email protected]) is a Senior examines a number of laws — not discrimination on the basis of “disabil- Labour Law Specialist with ILO.

VOLUME 13, NUMBER 1, JULY 2008 43 international developments

U.N. Secretary-General sion to people who use drugs and the MediaReleases_2008_SecondQuarter_30April2008- RuddGovernmentmovesonsame-sexdiscrimination. calls for an end to criminal decriminalisation of sex work.18 11 Human Rights and Equal Opportunities Commission, law approaches to Same Sex: Same Entitlements — National Enquiry into – Richard Pearshouse Discrimination Against People in Same-Sex Relationships: vulnerable populations Financial and Work-Related Entitlements and Benefits, May 2007. At www.hreoc.gov.au/Human_RightS/samesex/ On 26 March 2008, U.N. Secretary- report/pdf/SSSE_Report.pdf. 12 “Govt excludes same-sex marriage from law changes,” General Ban Ki-moon called for ABC News, 30 April 2008. At www.abc.net.au/news/ 1 increased respect for the health and In May 2005, Khodorkovsky and Lebedev were found stories/2008/04/30/2230972.htm. guilty and sentenced to ten and eight years in prison, 13 human rights of people living with respectively. See www.khodorkovsky.info. “National register for gay couples, says Kevin Rudd,” news.com.au, 16 December 2007. At www.news.com.au/ HIV, sex workers, men who have 2 D. Nowak, “Aleksanyan to stay in custody,” The St. story/0,23599,22932717-2,00.html. Petersburg Times, 7 March 2008. sex with men and young people who 14 The full text of the Digest can be downloaded at inject drugs in Asia. He stated: 3 A copy of ECHR correspondence referring to the www.ilo.org/public/english/dialogue/ifpdial/downloads/ interim measure can be found at www.mka-london.co.uk/ papers/digest.pdf. The Digest forms part of a (Swedish) documents/ronald_60B12.pdf. Sida-funded program aimed at mitigating the effects of HIV/AIDS in sub-Saharan Africa. Further information [W]e will never see equitable progress 4 Human Rights Watch, Letter to President Vladimir Putin: about this project can be found at www.ilo.org/public/ Denial of HIV treatment Endangering Russian Prisoner’s Life, if some parts of the population are english/dialogue/ifpdial/tech/hivaids.htm. still denied basic health and human 8 February 2008. Available via www.hrw.org. 15 Benin, Botswana, Burkina Faso, Cameroon, the 5 M. Scwirtz, “Ill Russian’s plea to leave prison: ‘I will not rights — people living with HIV, sex Democratic Republic of the Congo, Ethiopia, Lesotho, go anywhere but to the grave,’ ” The New York Times, Malawi, Mauritius, Mozambique, Nigeria, South Africa, workers, men who have sex with men, 7 February 2008. Togo and Zimbabwe. and young people who inject drugs. I 6 S. Osadchuk, “ Ex-Yukos executive kept in handcuffs,” 16 The research feeds into the International Labour look to Asian Governments to amend The Moscow Times, 19 February 2008; D. Nowak, Conference debate in 2009 and 2010 on a new instru- outdated laws criminalizing the most “Aleksanyan to stay in custody,” The St. Petersburg Times, ment on the subject: See the background report 7 March 2008. vulnerable sections of society, and HIV/AIDS and the World of Work, 98th Session of the ILC, 7 R. Pearshouse, “California: Governor vetoes prison Report IV(1). Available in several languages at take all the measures needed to ensure condom bill” HIV/AIDS Policy and Law Review 11(2/3) www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/ they live in dignity.17 (2006): 38. documents/meetingdocument/wcms_090177.pdf. 17 8 The veto message is available online at The Commission on AIDS in Asia, “AIDS remains the http://gov.ca.gov/pdf/press/AB%201334%20veto% leading cause of death and lost days in the most produc- His comments were made in response 20message.pdf. tive age groups in Asia,” news release, New York City, 26 March 2008. At to the launch of a report by the 9 “Reality and denial in California prisons,” The New York http://data.unaids.org/pub/PressRelease/2008/ Commission on AIDS in Asia. The Times, 19 October 2007. 20080326_pr_asiacommissionreport_en.pdf. report calls for, among other things, 10 Attorney-General for Australia, “Rudd government 18 The Commission on AIDS in Asia, Redefining AIDS in moves on same-sex discrimination,” news release, Asia: Crafting an Effective Response, March 2008. At increased access to harm reduction Canberra, 30 April 2008. At www.attorneygeneral.gov.au/ http://data.unaids.org/pub/Report/2008/20080326_ measures to prevent HIV transmis- www/ministers/robertmc.nsf/Page/ report_commission_aids_en.pdf.

44 HIV/AIDS POLICY & LAW REVIEW HIV/AIDS IN THE COURTS – CANADA

This section presents a summary of Canadian court cases relating to HIV/AIDS or of significance to people with HIV/AIDS. It reports on criminal and civil cases. The coverage aims to be as complete as possible, and is based on searches of Canadian electronic legal databases and on reports in Canadian media. Readers are invited to bring cases to the attention of Sandra Ka Hon Chu, editor of this section, at [email protected]. Unless otherwise indicated, the articles in this section were written by Ms. Chu.

Court strikes down restriction in Ottawa’s medical marijuana program

On 10 January 2008, the Federal Court struck down a key restriction in Ottawa’s medical marijuana program.1 The ruling grants approved medical marijuana users more freedom in picking their own grower, and allows growers to supply the drug to more than one patient.2

In 2004, licensed medical marijuana ing the growing of the drug and its authorized users who could not grow users, who use marijuana to treat distribution. Under Health Canada’s their own marijuana were forced to chronic pain, seizures and other ail- regulations, licensed producers were rely on either a licensed private pro- ments, sought a judicial review of only permitted to grow marijuana ducer, if they could find one willing Health Canada regulations regard- for one patient at a time. Therefore, to produce only for them, or the gov-

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ernment, which buys the plants from established in other courts for quali- On 19 March 2008, the Federal a Manitoba-based company.3 fied medical users to have reasonable Court of Appeal granted an interim This restriction effectively estab- access to marijuana, to force them stay of the Federal Court decision lished Health Canada as the country’s either to buy from the government pending the outcome of the appeal sole legal provider of medical mari- contractor, grow their own or be lim- and cross-appeal.10 juana. According to Alan Young, ited to the unnecessarily restrictive lawyer for the medical marijuana system of designated producers.”6 users, Health Canada was providing Health Canada’s restriction on an expensive yet ineffective drug medical marijuana producers arose as that didn’t meet the needs of many the result of a government policy that patients. Young also said that there was implemented following a 2003 are providers who want to supply Ontario Court of Appeal ruling that various strains of marijuana at a struck down as unconstitutional cer- lower cost for medical use. 4 tain rules that limited access to med- In the Federal Court’s view, the ical marijuana.7 In response, Health one-to-one ratio for growers and Canada amended several aspects of patients violated the Canadian its policy but retained the limits on Charter of Rights and Freedoms. In production.8 his decision, Justice Barry Strayer Lawyers for the medical marijuana said that the provision was uncon- users hailed the Federal Court’s rul- stitutional and arbitrary because it ing as a “nail in the coffin” of the “caused individuals a major difficulty one-to-one ratio restriction, which with access.”5 they believe will allow patients to Justice Strayer held that the liberty choose whether to buy from the and security of the person interests government or “to create small the in section 7 of the Charter conferred small collectives of patients that go on the applicants a right to choose, to an experienced and knowledgeable 9 on medical advice, to use marijuana grower.” 1 Sfetkopoulos v. Canada (Attorney General), 2008 FC 33 for treatment of serious conditions, Health Canada has appealed the (CanLII). and that that right implied a right of Federal Court decision. 2 M. Babbage, “Federal Court strikes down regulation limiting growers of medical marijuana,” Canadian Press, 10 access to such marijuana and a right In the case before the Federal January 2008. not to have one’s physical liberty Court, the medical marijuana users 3 M. Fitzpatrick, “Ottawa loses medical marijuana chal- endangered by the risk of imprison- had also asked the Court to retain lenge,” National Post, 11 January 2008. ment from having to access mari- supervisory jurisdiction over Health 4 “Medical marijuana restrictions unfair, lawyers contend,” Canadian Press, 4 December 2007. juana illicitly. Canada’s creation and implementa- 5 “Court strikes down regulation limiting growers of Moreover, Justice Strayer observed tion of a new process for allowing medical marijuana,” CBC News, 22 January 2008. that while the government had argued multiple patients to designate a single 6 Ibid. that medical users who couldn’t grow designated producer. This would 7 Hitzig. v. Canada (2003), 231 D.L.R. (4th) 104. their own marijuana could obtain it require Health Canada to submit 8 P. Lucas, “Regulating compassion: an overview of from the government, fewer than 20 periodic reports on the status and Canada’s federal medical cannabis policy and practice,” Harm Reduction Journal 5:5 (2008). Available via percent of patients actually used the progress of the new process. Justice www.harmreductionjournal.com. government’s supply. The judge said Strayer denied the request and the 9 M. Fitzpatrick. that “it is not tenable for the gov- medical marijuana users have cross- 10 Canada (Attorney General) v. Sfetkopoulos, 2008 FCA ernment, consistently with the right appealed that decision. 106 (CanLII).

46 HIV/AIDS POLICY & LAW REVIEW hiv/aids in the courts – canada

Refugee claimant’s identity as cross- dresser must be considered in assessing adequacy of state protection

On 11 December 2007, the Federal Court allowed Jose Hernandez’s application for judicial review of a November 2006 decision by the Refugee Protection Division of the Immigration and Refugee Board, which found that the applicant was neither a Convention refugee nor a person in need of protection.1 Hernandez had requested that the Board’s decision be set aside and the matter referred back to a newly constituted panel of the Board for re-determination.

Hernandez, a Mexican citizen, sought The Board found it unreasonable individual.” The Court held that in refugee status on the basis of his sex- for Hernandez not to have made failing to assess Mexico’s ability to ual orientation. He had been ejected efforts to seek police protection or adequately protect such individuals, from his home by his family and protection of other state authorities, the Board had erred. physically assaulted on a number of and held that he had an obligation to occasions as a result of his being gay. first seek protection in his country of On one occasion, he was assaulted origin. With regards to Hernandez’s while he was “dressed as a woman.” claim of protection on the basis of Hernandez moved to Canada in his HIV-positive status, the Board 2003 and was diagnosed with HIV noted that the HIV/AIDS program in 2005. In June 2006, Hernandez’s in the City of Mexico provides full immigration hearing took place, antiretroviral treatment for all persons during which he disclosed that he living with HIV who could not oth- feared danger in returning to Mexico erwise afford treatment. The Board because he is gay and is a cross- concluded that having considered all dresser. of the evidence, Hernandez was not According to the Board, the a Convention refugee, nor was he a determinative issue in Hernandez’s person in need of protection. particular claim was whether state The Federal Court held that with protection was available to him in regards to the issue of adequacy of Mexico. The Board was persuaded state protection, the appropriate stan- by the documentary evidence on dard of review is reasonableness. In Mexico that while there continues its review of the Board’s decision, to be strong homophobic attitudes the Court concluded that there was among the general public, the gov- no consideration of Hernandez’s full ernment had adequately addressed the identity, “despite ample evidence issue of sexual orientation and health before the Board to alert them to care; and that in recent years, there the fact that the applicant’s identity

had been substantial political and was not only a homosexual man, but 1 Hernandez v. Canada (Minister of Citizenship and legal gains for sexual minorities. also a cross-dresser and transgender Immigration), [2007] F.C.J. No. 1665 (QL).

VOLUME 13, NUMBER 1, JULY 2008 47 hiv/aids in the courts – canada

Case of disclosure of HIV status helps to clarify privacy law in Ontario

A judge in the Ontario Superior Court of Justice has dismissed a breach of privacy suit on the basis that the plaintiff failed to prove that the disclosure of his HIV status had caused him harm. The judgment set out guidelines for how future claims of breach of privacy should be addressed. 1

In 2005, the HIV & AIDS Legal without proving that his aunt intended breached must prove that she or he Clinic of Ontario (HALCO) was con- to harm him and not his mother. suffered some harm as a result of tacted by a man whose aunt had dis- Nevertheless, the case established the privacy breach. This contrasts closed his HIV status to his parents a framework for future breach of pri- with legislation in British Columbia, without his consent. His aunt had vacy cases. In her decision, the judge Saskatchewan, Manitoba and revealed the man was HIV-positive provided that in order to determine a Newfoundland, which stipulate that a while having an argument with his breach of privacy case, a court should person can sue for breach of privacy mother and another aunt. He was answer the following questions: without needing to prove damages, not there at the time and discovered and which the judge chose not to be the disclosure one month later. With 1. Is the information acquired, col- guided by. the assistance of HALCO, the man lected, disclosed or published of There may be scope in a future sued his aunt for breach of privacy a kind that a reasonable person breach of privacy claim to argue that and intentional infliction of mental would consider private? proof of harm should not be deter- distress. 2. Has the plaintiff consented to the minative of a case. In the meantime, At the time, breach of privacy cas- acquisition or collection of the this case has provided greater clarity es were relatively new in Ontario’s information? for privacy law in Ontario and for courts. While there had been cases 3. If not, has the information been people intending to sue when their in which plaintiffs had won damages acquired or collected for a legal HIV status is disclosed without their for breach of privacy, these had not process or public interest reason? permission. clearly established the necessary cri- If so, what is that reason? teria to prove this claim. 4. Has the plaintiff consented to the – Renée Lang The trial took place in February disclosure or publication of the and June 2007. Both the plaintiff and information? the defendant provided their legal 5. If not, has the information been arguments in writing. On 4 October disclosed or published for a legal Renée Lang ([email protected]) is a staff lawyer at HALCO and represented the 2007, the judge released her judg- process or public interest reason? plaintiff in the above case. ment, holding that the plaintiff could If so, what is that reason? not prove that his aunt’s disclosure to 6. Is the legal process or public inter- his parents caused him harm in view est reason put forward for acqui- of a number of other stressful circum- sition, collection, disclosure or stances in his life at the time. publication one that a reasonable While the judge found that the aunt person would consider outweighs had disclosed the plaintiff’s HIV sta- the interest of the individual in tus, she stated that the plaintiff could keeping the information private? not recover damages without making a direct link between the disclosure In addition, the judge held that a 1 Caltagirone v. Scozzari-Cloutier, [2007] O.J. No. 4003 and the harm that he suffered, and person whose privacy has been (QL).

48 HIV/AIDS POLICY & LAW REVIEW hiv/aids in the courts – canada

HIV-positive woman’s appeal for absolute discharge dismissed on grounds of public safety

On 7 December 2007, the Nova Scotia Court of Appeal dismissed an appeal from a June 2007 order of the Nova Scotia Review Board providing that an HIV-positive woman, “K.A.S.,” be discharged with conditions to reside in hospital-approved premises, to continue with recommended mental health treatment, and to abstain from alcohol and illicit drug use because she continued to present a significant risk to the safety of the public.1

K.A.S. had sought an absolute charged, K.A.S. went absent without threat, and the Review Board’s con- discharge on the grounds that her leave on a number of occasions and sequent order, were not unreasonable. psychosis had been controlled with tested positive for cocaine use upon The Court held that while, as medication, and that the restric- her return. K.A.S. argued, the risk that she tions on her liberty are intended to Although her psychosis was con- would infect another with HIV is a address her drug addiction and HIV trolled with medication, K.A.S.’s public health risk, the Board’s find- status, which are community health diagnosis of chronic schizophrenia ing that K.A.S. presented a signifi- issues and not properly the subject remained unchanged and the Review cant threat to the safety of the public of continuing proceedings under the Board found that she continued to because she may commit an assault Criminal Code. pose a significant risk to the safety of on a member of the public due to her In February 2004, K.A.S. was the public because of her drug use, failure to disclose her HIV status was found to be “not criminally respon- which could cause her delusions to “evidence-based, predicted criminal sible” by reason of mental disorder return. conduct which is squarely within the in relation to two charges of com- The Court of Appeal observed jurisdiction of the Review Board.” munication for the purposes of pros- that in making a decision to grant an titution. K.A.S. had undergone a absolute discharge, a conditional dis- psychiatric assessment prior to her charge, or detention in hospital custo- trial and was found to suffer from dy, the Review Board must take into chronic schizophrenia. K.A.S. had consideration “the need to protect reported to the examining psychiatrist the public from dangerous persons, that at the time of the offences that the mental condition of the accused, she believed she was an undercover the reintegration of the accused into police agent posing as a sex worker society and the other needs of the who was incapable of transmitting accused.” or contracting sexually transmitted The Court said that the Review infections. Board could order an absolute dis- As a result of the verdict, K.A.S. charge only if, in its opinion, the fell under the jurisdiction of the Nova accused is not a “significant threat Scotia Review Board, which ordered to the safety of the public.” In the that she be detained at the East Court’s view, the Review Board’s Coast Forensic Psychiatric Hospital. conclusion that the potential that During her detention in the hospi- K.A.S. would infect a sexual partner tal and in transitional group homes through her failure to disclose her where she was periodically dis- HIV status rendered her a significant 1 R. v. K.A.S., [2007] N.S.J. No. 504 (QL).

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Criminal law and HIV transmission or exposure: seven new cases

Québec woman convicted The Court found J.L.P.’s evidence ingly inconsistent with the Court’s for non-disclosure of her on this point unreliable and con- ruling in Cuerrier, which requires HIV-positive status cluded that D.C. only had sex with disclosure of HIV status if there is a him once before she informed him of significant risk of exposure and not A Québec woman, D.C., was found her HIV-positive status. At issue was in circumstances where safer sex is guilty on 14 February 2008 of sexual whether a condom had been used on practiced.6 assault and aggravated assault for that occasion. As the Court in Cuerrier sug- failing to inform her sexual partner, In his decision, Justice Bisson gested, “the careful use of condoms J.L.P., that she was HIV-positive specifically stated as a finding of fact might be found to so reduce the before they had sex.1 In the judg- that in the initial sexual encounter risk of harm that it could no longer ment, both the accused and the com- between D.C. and J.L.P., a condom be considered significant…”7 The plainant were referred to only by had not been used. Justice Bisson requirement of disclosure of HIV their initials because their identities relied in part on the evidence of status in addition to practicing safer were suppressed as the result of a D.C.’s physician, who testified that sex is unnecessarily burdensome on publication ban. notes in her medical chart indicated people living with HIV, particularly D.C. was diagnosed with HIV in that D.C. had consulted with her given that they may face stigma, dis- 1991. She met the complainant J.L.P. about the risk of HIV transmission if crimination and fear of rejection in in 2000 and began a sexual relation- a condom broke. their personal relationships. ship with him shortly afterwards. In This was contrary to various Cases in which women have been earlier proceedings, D.C. successfully newspaper reports that D.C. had charged for failing to disclose their brought charges of assault against only had “protected sex” with her HIV-positive status to their sexual J.L.P. following the breakdown of their partner.4 Given this finding of fact, partners are relatively rare in Canada. relationship in 2004, for which J.L.P. the case does not address the issue of While women, particularly those received an unconditional discharge.2 disclosure obligations when condoms in abusive relationships or those During the trial, Justice Bisson are used, the so-called “condom involved in sex work, may have noted that J.L.P. had waited four defense,” an issue which remains limited control over whether safer years before bringing charges against unaddressed in Canadian jurispru- sex is practised with or by a partner, D.C., and observed in him a “certain dence. and may be more likely than men to vengeance [towards her] for the fash- D.C. is expected to return to court face sexual and physical violence if ion in which their relationship ended. in July 2008 for sentencing. they reveal they are HIV-positive, The bitterness is palpable.”3 the impact of the criminal prosecu- Commentary J.L.P., who had not been infected tion of non-disclosure of HIV status with HIV, alleged during trial that Significantly, the Court interpreted R. on women has not been sufficiently he had unprotected sex on multiple v. Cuerrier, the first Supreme Court studied. occasions with D.C. and that she did of Canada decision dealing with Some groups have contended, not disclose her HIV-positive status non-disclosure of HIV status before however, that Justice Bisson’s deci- to him beforehand. D.C. maintained unprotected sex, to require HIV- sion deters HIV-positive women that she only had sex with J.L.P. once positive individuals to disclose their living in abusive relationships from before she informed him of her HIV- HIV status and reduce as much as bringing charges of abuse against positive status and that a condom had possible the risk of exposure during their sexual partners for fear of retri- been used. sex.5 This interpretation is seem- bution.8

50 HIV/AIDS POLICY & LAW REVIEW hiv/aids in the courts – canada

Leone given 15 consecutive The Crown’s application to have affected his judgment. While Justice sentences for aggravated Leone declared a long-term offender Williams Jenkins could not agree sexual assault was also unsuccessful. As a long- with the conditional sentence the term offender, Leone would have defence had requested, he called the On 4 April 2008, Carl Leone was been subject to a period of supervi- three-year jail term requested by the sentenced in the Ontario Superior sion of up to ten years after his even- Crown “crushing.”15 Court of Justice to 49 years imprison- tual release from prison.12 However, Handy’s conditions of probation ment for 15 consecutive sentences of Leone will be required to surrender include continuing his treatment for aggravated sexual assault, a term that a DNA sample and his name will be mental illness, abstaining from illegal was ultimately reduced to 18 years added to Ontario’s sex offender regis- drug use, disclosing his HIV status after Justice Joseph Quinn took into try for life. to all sexual partners and abstain- account the “principle of totality.”9 ing from unprotected sex. In addi- According to Justice Quinn, when tion, Handy was ordered to provide an individual receives consecutive a DNA sample, and his name was sentences, the principle of total- Lifetime sex offender added to the sex offender registry for ity requires judge to ensure that the registration for man who life. Because Handy was convicted aggregate sentence is not unduly long failed to disclose his HIV of aggravated sexual assault, which or harsh. In his judgment, Justice status carries a maximum life sentence, life- Quinn indicated that Leone’s age, his time registration on the sex offender lack of a criminal record and the fact On 27 March 2008, Ryan Handy was registry is automatic. that he pleaded guilty to spare the sentenced to eight months’ incarcera- complainants the trauma of testifying tion and two years’ probation for fail- in court were all factors in his deci- ing to disclose his HIV-positive status sion. before having unprotected sex twice Court dismisses motion In April 2007, Leone had pleaded with the same man.13 Handy had for leave to bring a guilty to 15 counts of aggravated been convicted of aggravated sexual Section 15 Charter claim sexual assault for having unprotected assault in November 2007. sex with 20 women between 1997 During his trial at the Ontario In December 2007, the Ontario and 2004 without disclosing his HIV Superior Court of Justice, Handy had Superior Court of Justice dismissed status.10 Five of the 20 women had testified that at the time he first had Johnson Aziga’s motion for leave to since tested positive for HIV.11 Leone unprotected sex with the complain- bring a Section 15 Canadian Charter was arrested by Windsor police in ant, he was experiencing a mental of Rights and Freedoms application June 2004, seven years after he had breakdown and believed he was the to stay proceedings against him or, tested HIV-positive at the Windsor Messiah and had sweated out the alternatively, to exclude evidence Essex County Health Unit. virus. After they had unprotected sex based upon a violation of one or Leone will be eligible for parole in again, Handy testified that he had a more of his Charter rights.16 six years. The Crown’s application moment of clarity, realized he had Aziga is charged with two counts to have Leone declared a dangerous the virus and immediately contacted of first-degree murder and 13 counts offender did not succeed, because the man and told him he was HIV- of aggravated sexual assault for Justice Quinn held that the Crown positive. The complainant, who was having unprotected sex with 13 had not proven beyond a reasonable not ultimately infected, had testified complainants without disclosing his doubt that Leone would commit simi- that he would not have participated in HIV-positive status. Seven of the lar offences in the future. Had Leone sex had he known Handy was HIV- complainants subsequently became been declared a dangerous offender, positive.14 HIV-positive and two of the com- he would have faced an indefinite During Handy’s sentencing, plainants died as a result of compli- prison term subject to review every Justice Williams Jenkins acknow- cations associated with their HIV seven years. ledged that Handy’s mental illness infection.

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In his motion, Aziga argued that Admission of consensual the woman, who he had met in an the criminalization of HIV exposure sex leads to dismissal of online chat room and with whom in Canada criminalizes a “physical criminal charge he had unprotected sex with from disability,” which violates his right November 2004 until March 2005. to be free from discrimination as a On 4 February 2008, the Ontario A concerned housemate of the man result of his membership in an identi- Superior Court of Justice dismissed allegedly told the complainant about fiable group. a charge of attempted aggravated J.M.L.’s HIV status, at which point Aziga, who was born in Uganda, sexual assault against Mark Hinton she immediately went for HIV testing also argued that he was discrimi- for allegedly having unprotected sex and was given post-exposure pro- nated against on the ground of race, with a man in 2006 without disclos- phylaxis for several months. At because the Crown had introduced ing his HIV-positive status.17 The the time of his sentencing, the evidence regarding the statistical man subsequently discovered he was complainant had tested negative probability of the source of the com- HIV-positive. for HIV. plainants’ HIV infection being an Hinton’s original charge of aggra- Since J.M.L. had already served African and in particular, a Ugandan. vated sexual assault had been reduced 16 months in custody, which counted Aziga contended that the statistical to attempted aggravated sexual as double that time when applied to analysis based on race, national ori- assault because the Crown could not his sentence, he was required to serve gin or ethnicity amounted to racial prove definitively that Hinton had an additional two years to complete profiling which was offensive to the infected the complainant. the sentence. right of every individual to be free The trial ended after the com- from discrimination on the basis of plainant testified that HIV was not a race, national origin or ethnicity, and concern for him before he engaged a breach of his rights under Section in “moderately high-risk” unpro- Guilty plea in case of 15 of the Charter. tected sex with previous partners. sexual assault in Ontario Justice Lofchik held that Aziga According to the Crown, this admis- prison had failed to establish an eviden- sion of consent substantially weak- tiary foundation or a factual basis to ened the Crown’s case to prove the On 28 February 2008, Lee Wilde support an assertion that there has allegation beyond a reasonable doubt. pleaded guilty in the Ontario Court been a violation of his rights pursu- After the case was dismissed, Hinton of Justice to sexually assaulting a fel- ant to Section 15 of the Charter. In claimed he had never had sex with the low prisoner who is HIV-positive.19 Justice Lofchik’s view, the Crown’s complainant and was being used as a Wilde was charged with sexually evidence merely indicated that Aziga scapegoat for the man’s HIV status. assaulting the male complainant, and the infected complainants share a who was incarcerated with him at the particular virus which is “a rare clave Central North Correctional Centre in in Canada but prevalent in Africa,” Penetanguishene, Ontario in March and did not amount to racial profil- B.C. man sentenced to 2007. Wilde was sentenced to 20 ing. over four years for failing months imprisonment and his name Furthermore, Aziga was not to disclose HIV-positive will be placed on the provincial sex being prosecuted because he is HIV- status offender registry. positive, but because “he engaged in This was the second trial for unprotected penetrative sexual activ- In November 2007, the Prince Wilde. In December 2007, Wilde ity with the 13 named complainants, George Provincial Court sentenced was tried before Justice Jon-Jo knowing he was HIV- positive and “J.M.L.” to four years and eight Douglas in the Ontario Court of failing to disclose to them that he was months for failing to disclose his Justice (Central East Region). A HIV-positive, thereby exposing them HIV-positive status to a woman with new trial was ordered after the judge to serious bodily harm.” Aziga’s whom he had unprotected sex.18 removed himself from the trial fol- trial has been scheduled to begin in J.M.L. had pleaded guilty to a lowing some questionable conduct on October 2008. charge of aggravated assault against his part.

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For further discussion of the first trial, see 5 R. v. D.C, para. 92. 12 C. Alphonso. the “Canadian Developments” section of 6 For further discussion on this issue, see R. Elliott, After 13 J. Sims, “HIV positive man spread virus, jailed 8 months,” this issue. Cuerrier: Canadian Criminal Law and the Non-Disclosure of The London Free Press, 28 March 2008, p. B5. HIV-Positive Status, Canadian HIV/AIDS Legal Network, 14 2002. J. Sims, “HIV accused claims mental breakdown,” The London Free Press, 21 September 2007, p. B1. 7 R. v. Cuerrier, [1998] 2 S.C.R. 371 at para. 129. 15 J. Sims, “HIV positive man spread virus,” p. B5. 8 See for example, COCQ-Sida, “Are Judges and 16 Prosecutors Guilty of Discrimination Against People R. v. Aziga, [2007] O.J. No. 4965 (QL). Living with HIV?,” news release, Montréal, 15 November 17 J. Sims, “Charge dismissed against HIV-positive man,” 1 2007. R. v. D.C. (14 February 2008), Longueuil The London Free Press, 5 February 2008, p. B.1. 505-01-058007-051 (C.Q.). 9 C. Alphonso, “Man gets 18 years for spreading HIV,” 18 S. Freeman, “HIV-positive man jailed after deceiving 2 “Woman who hid HIV infection from partner faces jail,” Globe and Mail, 5 April 2008. partner about infection; Court hands down four-year, CBC.CA News, 5 May 2008. 10 D. Schmidt, “Plea ends HIV trial; Leone admits guilt in eight-month sentence for aggravated assault,” Vancouver 3 R. v. D.C. at para. 153. 15 sex assaults,” The Windsor Star, 28 April 2007, p. A1. Sun, 5 November 2007, B.1. 4 “Quebecer guilty of assault for failing to tell boyfriend 11 D. Schmidt, “Positive HIV test drove Leone to tears, 19 J. Friesen, “Odd HIV assault trial ends abruptly,” United she was HIV-positive,” Canadian Press, 14 February 2008. trial told,” The Windsor Star, 17 April 2007, p. A3. Press International, 29 February 2008.

In brief

Case of HIV-positive gay While the Board found that “capricious” and the Board’s decision transvestite referred to Cascante was who he claimed to be, was patently unreasonable. new refugee panel for it chose to follow a precedent regard- re-determination ing the treatment of gay individuals in Costa Rica and, as the Federal Application for judicial On 7 February 2008, the Federal Court held, “without critical evalua- review denied for HIV- Court set aside a decision of the tion, found that the precedent applied positive refugee applicant Refugee Protection Division of the to the Applicant’s claim.” Since the from Mexico Immigration and Refugee Board precedent only spoke to treatment rejecting Orlando Quiros Cascante’s of gay individuals in Costa Rica and On 23 January 2008, the Federal claim for refugee status, and referred did not address state protection with Court denied an application for judi- the matter back for re-determination respect to transvestites and persons cial review of the Immigration and before a differently constituted who are HIV-positive, the Court held Refugee Board’s decision to reject panel.1 that the Board’s application of the Flores de la Rosa’s claim for protec- Cascante, who is from Costa Rica, precedent constituted a reviewable tion, having found that part of his claimed protection on the basis of his error. story was not credible, that he had an fear of persecution as a gay transves- Furthermore, on the state protec- “internal flight alternative” in Mexico tite who is HIV-positive. A central tion issue, the Board introduced City, and that state protection was feature of his claim was whether evidence of Costa Rica’s alleged available.2 he could receive state protection in protection of transvestites, which, The applicant, a citizen of Mexico, Costa Rica from persecution with when examined, did not support such claimed protection based on his respect to his identity as a gay trans- a claim. The Federal Court said that HIV-positive status and on abuse, vestite who is HIV-positive, including by relying on this evidence to reject including physical assault, from with respect to the three attributes on Cascante’s application for refugee his estranged boyfriend, Bernardo. an accumulated basis. status, the Board’s actions were The applicant alleged that Bernardo

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had tried to find him when he tried Small Claims Court) dismissed Final charges against to hide in another city, and that Jennifer Murphy’s claim for defa- former director of Bernardo had friends in the federal mation arising from a Toronto Canadian Red Cross judicial police who would assist Sun newspaper article published withdrawn Bernardo in finding him. The Board in November 2005 which claimed rejected the applicant’s protection Murphy “tried to pass on HIV.”3 At Six criminal nuisance charges against claim on credibility grounds, and on the time the article was published, Dr Roger Perrault, the former direc- the basis that both an internal flight Murphy had just pleaded guilty to tor of the Canadian Red Cross, were alternative and state protection were aggravated sexual assault for failing withdrawn on 18 January 2008 after available. to disclose her HIV-positive status Crown attorney John Pearson told the The Federal Court found that even to a man she had unprotected sex court there was no “reasonable pros- if the Board’s credibility findings were with. pect of conviction.”4 suspect, the findings regarding state Murphy argued that the Toronto The common nuisance charges protection and an internal flight alter- Sun headline and article were defam- stemmed from an allegation he native were a complete answer to the atory because there was no evidence endangered the public for failing to applicant’s claim. In the Court’s view, that she had deliberately attempted properly screen blood donors, imple- there had been numerous decisions to infect the man with HIV, although ment testing for blood-borne viruses, of the Federal Court upholding the she may have been reckless in not and warn the public of danger regard- Board’s findings that Mexico City is disclosing her HIV status. Murphy ing both hepatitis C and HIV.5 an internal flight alternative for most also argued that the failure of the The decision comes less than gay and lesbian individuals in Mexico. Toronto Sun to report certain facts four months after Perrault, two other On the finding of state protection, and the misrepresentation of other Canadian health officials and an it was open to the Board to conclude facts contributed to the defamation of American pharmaceutical company that the applicant had provided insuf- her reputation. representative were acquitted by the ficient evidence to rebut the presump- While Justice Godfrey held that Ontario Superior Court of Justice of tion of state protection. The Court the Toronto Sun had incorrectly four charges of criminal negligence observed that “Mexico was found to claimed that Murphy deliberately causing bodily harm and common be a democratic state with a func- tried to infect the man she had unpro- nuisance related to the infection of tioning government. On a general tected sex with, he said that the real hemophiliacs with HIV in 1986 and level, there was nothing to suggest issue to be determined was whether 1987.6 During that trial, Madam that Mexico could not provide pro- the statements were “material” state- Justice Benotto concluded that the tection.” Furthermore, the Court ments or mere “errors in detail.” accused had acted professionally and held that it was open to the Board to In Justice Godfrey’s view, the reasonably in the face of a public conclude that the applicant had not “reasonable person” would conclude health problem. sufficiently attempted to engage state that Murphy “had a callous disregard In withdrawing the charges, Crown protection to be able to sustain the for the health and safety of others attorney Pearson told the court that it argument that it was not available to regarding the transmission of the would be “irresponsible,” no matter him personally. HIV virus” and that there was “no how strong the public interest in con- substantial difference between a per- tinuing with the prosecution, to ignore son deliberately attempting to infect Madam Justice Benotto’s findings in Court rules that their sexual partner with HIV virus, the earlier trial, which included the defamation not proved and a person acting with total disre- finding that Perrault acted “carefully because reputation not gard whether they might infect their and responsibly” in his role as head “materially affected” sexual partner.” Accordingly, Justice of blood transfusion services at the Godfrey found that the inaccuracy Canadian Red Cross. On 16 January 2008, the Ontario reported did not materially affect Perrault’s lawyer, Eddie Greenspan, Superior Court of Justice (Toronto Murphy’s reputation. indicated Perrault would consider his

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next steps, including a possible law- 2 De La Rosa v. Canada (Minister of Citizenship and Press, 19 January 2008. Immigration), [2008] F.C.J. No. 98 (QL). suit against the government. 5 G. Bonnell, “Charges dropped against former director 3 Jennifer Murphy v. Sun Media (Toronto) Corporation, David of Canadian Red Cross,” Winnipeg Free Press, 18 January Swail and Tracy McLaughlin, (16 January 2008), Toronto 2008. Small Claims TO 32468/06. 1 Cascante v. Canada (Minister of Citizenship and 6 R. v. Armour Pharmaceutical Co., [2007] O.J. No. 3733 Immigration), [2008] F.C.J. No. 208 (QL). 4 J. Huber, “Crown cancels blood charges,” Winnipeg Free (QL).

VOLUME 13, NUMBER 1, JULY 2008 55 HIV/AIDS IN THE COURTS – INTERNATIONAL

This section presents a summary of important international cases relating to HIV/AIDS or of significance to people living with HIV/AIDS. It reports on civil and criminal cases. Coverage is selective. Only important cases or cases that set a precedent are included, insofar as they come to the attention of the Review. Coverage of U.S. cases is very selective, as reports of U.S. cases are available in AIDS Policy & Law and in Lesbian/Gay Law Notes. Readers are invited to bring cases to the attention of Leah Utyasheva, editor of this section, at [email protected].

European Court of Human Rights rejects prisoner’s plea for prison needle exchange

On 4 January 2008, the European Court of Human Rights declared inadmissible an application from prisoner John Shelley alleging a violation of his rights under the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention).1

Shelley, a U.K. national, was serving Secretary, arguing that the failure torture) and 8 (right to respect for pri- a sentence of imprisonment in H.M.P. to introduce a trial of prison needle vate and family life) of the European Long Lartin (near Evesham) when in exchanges (PNEPs) into English Convention. 2004 he commenced judicial review and Welsh prisons violated Articles Shelley claimed that prisoners who proceedings against the British Home 2 (right to life), 3 (prohibition of use drugs are at risk of contracting

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blood-borne viruses such as HIV and and the Irish Penal Reform Trust was at any real or immediate risk of hepatitis if they do not have access were jointly granted leave to inter- becoming infected through unclean to sterile needles for injection. He vene in the proceeding,5 and the or shared needles, nor had he claimed also claimed that disinfecting tablets, National AIDS Trust (U.K.) was also to use drugs himself. In the Court’s which the U.K. government had pro- granted leave to intervene separately.6 view, the “general unspecified risk, posed to make available throughout In its decision, ruling the case or fear, of infection as a prisoner”9 prisons, were not as effective as ster- inadmissible, the Court acknowl- was not sufficiently severe as to raise ile injection equipment. edged that drug use was common issues under either Articles 2 or 3. The Royal Courts of Justice in prison, that HIV and hepatitis (Administrative Court Division) dis- C (HCV) infection rates were sub- missed the application for judicial stantially higher among the prison review on the basis that the steps tak- population than the general popula- en by the Secretary of State to pro- tion, and that cleaning syringes with The decision of the Court tect the health of prisoners were not disinfectant such as bleach did not is arguably amiss, for a unreasonable, given that the provi- sufficiently reduce the risk of infec- sion of syringes would remove one of tion.7 The Court further acknowl- number of reasons. the disincentives to prisoners inject- edged that the Prison Service has a ing themselves and that the effect of responsibility to ensure that prisoners a decision to introduce a policy of have access to health services broadly distributing disinfecting tablets had equivalent to those in the community, yet to be assessed.2 that needle exchange programs have With respect to Shelley’s Article In a renewed application to the been recognized as the most effec- 8 complaint, the Court held that Court of Appeal, Shelley again tive harm reduction method in the Shelley could not point to any author- claimed that the U.K. government’s community, and that the Department ity that placed any obligation under failure to provide PNEPs violated of Health did not consider that dis- Article 8 on a Contracting State (a Articles 2, 3 and 8 of the European infectant tablets were an adequate state that has ratified the European Convention.3 In November 2005, response to risks of HIV and HCV Convention) to pursue any particu- the Court of Appeal dismissed the transmission for the general public. lar preventive health policy. As the renewed application for judicial The Court noted the evidence Court observed, while “it is not review and upheld the decision of the provided by the Canadian HIV/AIDS excluded that a positive obligation lower court.4 Legal Network and the Irish Penal might arise to eradicate or prevent In 2006, Shelley lodged a com- Reform Trust, which showed that in the spread of a particular disease or plaint with the European Court of the prisons where needle exchange infection,” matters of health care Human Rights. Relying on the same programs operated, they reduced policy were in principle within the legal provisions, Shelley alleged needle-sharing, reduced drug over- margin of appreciation of the domes- that U.K. authorities had failed to doses, led to a decrease in abscesses tic authorities who were best placed take steps to prevent the spread of and injection-related infections and to assess priorities, use of resources blood-borne viruses in prison and the facilitated referrals of users to treat- and social needs.10 known and immediate risk to his life, ment programs. Moreover, the Court The Court said that Shelley had his health and well-being through agreed that PNEPs have not been not suffered any directly negative their refusal to introduce PNEPs. demonstrated to result in an increase effect on his private life, nor was In this connection, he also invoked in drug consumption, drug injection he being denied any information or Article 14 (prohibition of discrimina- or in any incidents of intentional use assistance concerning a threat to his tion) of the European Convention, of needles as weapons or accidental health for which the authorities were complaining that, as a group, pris- needle-stick injuries.8 directly or indirectly responsible. oners were treated less favourably Nevertheless, the Court noted that According to the Court, giv- than people in the community. The Shelley had not specified that, due to ing “due leeway to decisions about Canadian HIV/AIDS Legal Network his own personal circumstances, he resources and priorities and to a

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legitimate policy to try to reduce drug whether he personally used drugs led which described the positive out- use in prisons, and taking account of it to conclude that his risk of infec- comes of needle exchange pro- the fact that some preventive steps tion was not “sufficiently severe” grammes operating in a significant had been taken (disinfecting tablets) to raise issues under Articles 2 and number of the prisons of Spain, and that the authorities were monitor- 3. However, irrespective of whether Luxembourg and Moldova, all ing developments in needle exchange Shelley injects drugs in prison, he is Contracting States of the Council of programmes elsewhere,” the U.K. still directly at risk from the use of Europe.16 government had not failed to respect infected needles, given the numerous Correspondingly, the Court Shelley’s private life, and so that part possibilities for disease transmission, overlooked evidence regarding the of the application was declared inad- including needle-stick injuries, associ- introduction of state-funded syringe missible. ated with a closed prison environment. exchange programs outside of pris- The arguments invoking Article Further, the Court’s deference to ons in countries across the Council 14 were similarly dismissed. In its U.K. prison authorities in terms of of Europe, in a legislative context assessment, the Court provided that health care policy was misplaced, where drug possession or use remains given that the Court conceded illegal. As the Canadian HIV/AIDS the risk of infection primarily flows the principle of equivalence with Legal Network and the Irish Penal from conduct by the prisoners them- regards to the provision of health Reform Trust argued, the doctrine selves which they know, or should care; and given that the U.K. Health of margin of appreciation should not know, is dangerous to their own Department had, as the Court noted, be used to justify inaction on PNEPs health, a situation that can be contrast- determined that disinfecting tablets which contradicts the broad interna- ed with damage to health flowing from conditions for which the authorities were not an “adequate response to tional consensus on prisoners’ equal themselves are directly responsible.11 risks of HIV and HCV transmission right to health and the positive obli- for the general public.”12 gations of states under international While the Court noted that prison- Rather than refer to the evidence human rights and health standards.17 ers do not forfeit the protection of demonstrating that PNEPs had not their fundamental rights and free- led to an increase in drug consump- – Sandra Ka Hon Chu doms guaranteed under the European tion or drug injection, the Court Convention, and was prepared to deferred to the U.K. prison authori- assume that prisoners could claim to ties’ untested assertion that “the best Sandra Ka Hon Chu ([email protected]) is be on the same footing as the com- policy is to encourage” prisoners to a Senior Policy Analyst with the Canadian HIV/AIDS Legal Network, and editor of munity as regards to the provision of give up drugs on entering prison, the HIV/AIDS in the Courts — Canada health care, it held that the difference “rather than to put the emphasis on section of the Review. in treatment with respect to needle ensuring access for such prisoners to exchange programs fell within the clean needles.”13 State’s margin of appreciation and Moreover, the Court’s deference could be regarded as being propor- to the U.K. government’s claim that tionate and supported by objective it was “monitoring developments in and reasonable justification. needle exchange programmes elsewhere”14 Commentary (which then provided a basis to rule the case inadmissible) was The decision of the Court is arguably unreasonable in light of the U.K.’s amiss, for a number of reasons. The preceding claim that it was not aware Court chose to ignore the Article 2 of any Contracting State that had (right to life) and 3 (prohibition of introduced needle exchange programs 15 torture) arguments, yet gave an uncon- throughout their prison system. 1 Shelley v. the United Kingdom (4 January 2008), vincing rationale as to why these This had been refuted by the Application No. 23800/06. rights were not engaged. In its view, Canadian HIV/AIDS Legal Network 2 Ibid., p. 4. the fact that Shelley had not specified and the Irish Penal Reform Trust, 3 Ibid., p. 4.

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4 The Queen on the Application of John Shelley v. Secretary 8 For an overview of Canadian and international research 16 Irish Penal Reform Trust and Canadian HIV/AIDS Legal of State for the Home Department [2005] EWCA Civ on PNEPs, see R. Lines et al, Prison Needle Exchange: Network, Shelley v. the United Kingdom: Response of the 1810. Lessons from A Comprehensive Review of International Intervenors the Irish Penal Reform Trust and the Canadian Evidence and Experience, Second edition, Canadian HIV/AIDS Legal Network to the Observations of the United 5 Irish Penal Reform Trust and Canadian HIV/AIDS Legal HIV/AIDS Legal Network, 2006. Available via Kingdom on Admissibility and Merits, 9 February 2007. Network, Shelley v. the United Kingdom: Submissions of the www.aidslaw.ca/prisons. Available via www.iprt.ie and www.aidslaw.ca/prisons. Intervenors the Irish Penal Reform Trust and the Canadian 9 17 HIV/AIDS Legal Network to the European Court of Human Ibid. at 10. See, e.g., Article 12 of the International Covenant on Economic, Social and Cultural Rights, concerning the right Rights, 19 January 2007. Available via www.iprt.ie and 10 Ibid. at 11. www.aidslaw.ca/prisons. to the highest attainable standard of health; World Health 11 Ibid. at 14. Organization (WHO), Guidelines on HIV Infection and AIDS 6 National AIDS Trust, Shelley v. the United Kingdom: in Prisons, 1993; UNAIDS and the Office of the U.N. High Submissions of the Intervenor the National AIDS Trust to 12 Ibid. at 7. Commissioner on Human Rights, International Guidelines the European Court of Human Rights, 5 February 2007. on HIV/AIDS and Human Rights, 2006 (consolidated ver- 13 Ibid. at 14. Available via www.nat.org.uk. sion); and U.N. Office on Drugs and Crime, WHO and 14 Ibid. at 11. UNAIDS, HIV/AIDS Prevention, Care, Treatment, and Support 7 Shelley v. the United Kingdom (4 January 2008), in Prison Settings: A Framework for an Effective National Application No. 23800/06, p. 6. 15 Ibid., p. 8. Response, 2006.

South African High Court defends the right to water

The High Court of South Africa (Witwatersrand Local Division) ruled in April 2008 that the City of Johannesburg’s system for providing water in Phiri, Soweto is unconstitutional and unlawful.1

The application was brought by five any additional water until the next criminatory. Other residents of residents of the Township of Phiri, month’s six free kilolitres became Johannesburg are given notice if they supported by the Centre for Applied available.2 For the applicants, this fall into arrears and have the oppor- Legal Studies (CALS). The Centre meant that they went without water tunity to make arrangements to settle on Housing Rights and Evictions for the last 15 days of each month. their arrears. Residents of Phiri, a (COHRE) submitted an amicus brief. The Court found that the prepay- poor and predominantly Black area, In 2001, the City of Johannesburg ment meter system infringes national are not given the same opportunity. and Johannesburg Water (Pty) Ltd. standards, including the requirement The Court found this distinction to be agreed to provide every household that no consumer be without water unreasonable, unfair, inequitable, and (or account holder) in Johannesburg for more than seven days per year, also discriminatory (i.e., based solely with six free kilolitres of water per and violates procedural fairness. In on colour).4 month (25 litres per person per day). particular, the Court highlighted the The Court also noted that many For residents of Phiri, the water manner in which the prepaid meters domestic chores are performed by would be dispensed by a prepayment were introduced, characterizing the women and many households in poor meter system. Once the six free kilo- process as “a vain attempt on the part areas are headed by women. Taking litres were dispensed, the water sup- of Johannesburg Water to make the into consideration that one of the ply would be automatically shut off. process appear reasonable and fair.”3 applicants had to travel three kilome- The account holder would need The Court further ruled that the tres to access water on behalf of her to purchase water credits to have prepayment meter system is dis- household, the Court held that pre-

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payment meters discriminate unfairly living with HIV/AIDS (PLWHAs). example of the justiciability of eco- against women on the basis of their PLWHAs require more water on a nomic and social rights, and sends a sex.5 daily basis than non-HIV infected clear message to government bodies The Court accepted that a mini- individuals. Additional water is in South Africa and more broadly that mum standard for free basic water is required to meet enhanced hygiene they have real and unequivocal duties understandable, given South Africa’s requirements, to prevent dehydra- with respect to the right to water. resource challenges but that, depend- tion in those susceptible to frequent ing on resources available and the bouts of diarrhoea, to prepare for- – Alison Symington needs of the residents, the city may mula for bottle-feeding infants born need to provide more than the mini- to HIV-positive mothers, and to meet mum.6 nutritional needs (by growing veg- Alison Symington In the case of Phiri, the Court etables in kitchen gardens). As well, ([email protected]) is a Senior Policy Analyst with the Canadian HIV/AIDS found that the applicants did indeed water is needed for frequent launder- Legal Network, and editor of the Canadian need more than the minimum and ing of soiled clothing and bedding Developments section of the Review. The that the city had the resources avail- for patients in advanced stages of decision, a summary of the case, and able to provide more. The Court AIDS.10 In the words of the judge: COHRE’s amicus curiae brief are available therefore ordered the city to provide at www.cohre.org/watersa. The submissions of the applicants and respondents are the applicants and other similarly To expect the applicants to restrict available at www.law.wits.ac.za/cals/phiri/ placed residents of Phiri Township their water usage to compromise their health by limiting the number of toilet index.htm. with free basic water supply of 50 flushes in order to save water, is to litres per person per day and the deny them the right to health and to option of a metered supply installed lead a dignified lifestyle. It is com- 7 at the cost of the city. mon cause that the people suffering In its analysis, the Court consid- from HIV/AIDS need more water ered the social and economic situa- than those not afflicted by the illness. tion of residents of poor townships. Such persons require water regularly For example, it noted that the average to wash themselves, drink, wash their household in Phiri consists of 16 clothes, and cook. Their caregivers persons, that there are more infor- are also constantly expected to wash mal settlers in yards than members their hands. In this context water- of households, and that there are borne sanitation is a matter of life and 1 Lindiwe Mazibuko & Ors v. The City of Johannesburg & Ors, 11 Case No. 06/13865. over 100 000 indigent households death. 2 Ibid., para. 3. in Phiri.8 The Court characterized Commentary 3 Ibid. at para. 111. the residents of Phiri as mainly poor, 4 uneducated, elderly, sickly and rav- Drawing extensively on international Ibid., para. 94. 5 aged by HIV/AIDS,9 and considered and comparative law, as well as a Ibid., para. 159. 6 what this meant in terms of their contextual analysis of the lived reali- Ibid., para. 126. 7 water needs and their ability to ties of the poor and people infected Ibid., para. 183.5. engage in the city’s process. with HIV, the Court has held the City 8 Ibid., paras. 166, 168. Justice Tsoka quoted extensively of Johannesburg accountable for the 9 Ibid., para. 169. from expert evidence adduced with progressive realization of the right to 10 Ibid., para. 172–3. respect to the water needs of persons water. This decision is an excellent 11 Ibid. at para. 179.

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Court says French government’s refusal to authorize adoption violates woman’s human rights

On 22 January 2008, the European Court of Human Rights held that there had been a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention) in the case of E.B. v. France, concerning a refusal by the French authorities to grant E.B.’s request to adopt a child, allegedly on account of her sexual orientation.1

E.B., a French national, had been liv- a family or the right to adopt, the reinforced by the fact that E.B.’s ing with another woman since 1990. concept of “private life” within the sexual orientation had featured sig- In 1998, E.B. applied to the Social meaning of Article 8 is a broad one nificantly in the reasoning of the Services Department for authoriza- which encompasses a certain number domestic authorities. The Court tion to adopt a child. During the of rights. concluded that the decision refus- adoption procedure, she mentioned With regard to E.B.’s allegation of ing E.B. authorization was a viola- her sexual orientation and her stable discrimination based on her sexual tion of Article 14 of the European relationship with another woman. On orientation, the Court held that it was Convention, taken in conjunc- the basis of the reports drawn up by a sufficient for the facts of the case tion with Article 8, and the Court social worker and a psychologist, the to fall “within the ambit” of Article awarded E.B. 10,000 euros (about adoption board recommended that the 14, as E.B.’s case did, since French CAN$15,800) in respect of non- application be rejected. The reasons legislation expressly granted single pecuniary damage and 14,528 euros given were the absence of a paternal persons the right to apply for autho- (about CAN$22,954) for costs reference, and the ambiguous nature rization to adopt and established a and expenses. of E.B.’s partner’s commitment to the procedure to that end. Consequently, adoption plan. the Court said, the State could not – Sandra Ka Hon Chu A series of appeals were lodged, take discriminatory measures when it which ultimately led to E.B.’s appli- came to applying that right. cation to the European Court of The Court said that while it was Human Rights in December 2002. In legitimate for the authorities to her application, E.B. alleged that she ensure that all safeguards were in had suffered discriminatory treatment place before a child was taken into based on her sexual orientation, and a family, it questioned the merits of that the state had failed to respect one of the grounds for rejecting the her private life. E..B. invoked Article application — i.e., that there was 14 (protection from discrimination) a lack of a paternal referent in the and Article 8 (the right to respect household — because the application for private and family life) of the had been made by a single person European Convention. and not a couple. In its decision, the Court said The Court said that this ground that while French law and Article 8 served as a pretext for rejecting of the European Convention do not E.B.’s application on grounds of her 1 E.B. v. France (22 January 2008), Application No. guarantee either the right to found sexual orientation, a finding that was 43546/02.

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In brief authorities agreed to hospitalize by a Swedish court in February 2008, him only after Yakovenko’s mother after having unprotected sex with 16 lodged a complaint with the prosecu- girls, two of whom contracted the tor general. virus. The Court found violations of Aggett was found guilty by Solna Article 3 (prohibition of inhuman District Court in November 2007 ECHR: Ukraine held or degrading treatment) and Article of two charges of serious assault, responsible for inhuman 13 (right to an effective remedy) of 13 charges of attempted assault, six and degrading treatment the European Convention of Human charges of sexual exploitation of a of HIV-positive prisoner Rights. It held that the conditions in minor, one minor narcotics offence the Sevastopol Temporary Detention and two charges of driving without The applicant, Oleg Yakovenko, was Centre amounted to degrading treat- a licence.2 He was also ordered to a Ukrainian national. The applicant ment, as did the means of his trans- pay damages of 2.7 million kronor died while proceedings before the portation between detention facilities. (about $425,000) to the 16 complain- European Court of Human Rights The Court also accepted that the ants, including 850,000 kronor (about were ongoing and his case was con- prison administration’s failure to pro- $133,000) to each of the girls who tinued at the wish of his mother.1 vide the applicant with appropriate were infected with HIV.3 In June 2003, Yakovenko was medical treatment for his HIV and Allegedly, Aggett contacted girls arrested on suspicion of burglary and tuberculosis infections in a timely through internet chat sites. Some of placed in police custody. He was fashion amounted to inhuman and the complainants were under 15 years convicted and sentenced to three degrading treatment. of age — the legal age of consent in years and six months’ imprisonment. Finally, the Court found that the Sweden — when they had sex with He was detained for most of the applicant was not provided with Aggett.4 He was convicted of serious period of imprisonment at a pre-trial an effective and accessible means assault for the encounters with girls detention facility in Simferopol. to complain about his conditions who became infected with HIV, and Between June 2003 and April of detention. The Government of attempted assault for having unpro- 2006, Yakovenko spent about a year Ukraine was ordered to pay 434 tected sex with girls who did not in total in the Sevastopol Temporary euros (about CAN$686) in respect of become infected.5 Detention Centre, a facility that was pecuniary damages and 10,000 euros Sentencing was delayed until constantly overcrowded, unclean, and (about CAN$15,800) in respect of Aggett underwent a court-ordered psy- poorly lit and ventilated. He suffered non-pecuniary damages. chiatric analysis. Had he been found from tuberculosis. No staff at the to suffer from a psychiatric disorder, Centre were medically trained. – Richard Pearshouse Aggett could have been sentenced to Yakovenko was transported on a psychiatric care rather than prison.6 regular basis between two detention Richard Pearshouse facilities in prison vans and trains ([email protected]) is the Director – Alison Symington that were severely overcrowded, of Research and Policy for the Canadian dimly lit and poorly ventilated, for HIV/AIDS Legal Network, and editor of the International Developments section of a journey that took some 36 to 48 the Review. hours. Prisoners were not provided Nepal: Supreme Court with food or drink. makes landmark decisions In February 2006, Yakovenko was on LGBTI rights and the diagnosed HIV-positive although he Sweden: Man found guilty right to confidentiality claimed he was not informed of the of infecting two women diagnosis until three months later. with HIV On 21 December 2007, the Supreme His health deteriorated. Despite Court of Nepal issued directive repeated medical opinions that he Christer Merrill Aggett, a British citi- orders to the Government of Nepal required hospitalization, prison zen, was sentenced to 14 years in jail to end discrimination against lesbian,

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gay, bisexual, transgender and inter- women and children involved in the to treat nausea and vomiting associ- sex (LGBTI) people and to ensure judicial process will be subject to ated with HIV, a condition so severe their equal rights within Nepal.7 one-year imprisonment for contempt that it has required hospitalization in In April 2007, four LGBTI orga- of court.8 The ruling was issued by the past. nizations had filed a writ petition the Court while handing down a set Texas is not one of the twelve demanding protection of the legal of guidelines for courts, government states in the U.S. that have legalized rights of LGBTI people, by recog- agencies and the media, outlining the medical use of marijuana. nizing the civil rights of transgender how the judicial process in sensitive people without requiring them to cases involving persons living with – Sandra Ka Hon Chu renounce one gender identity for HIV/AIDS, women and children another, creating a new law to pre- should be dealt with to maintain con- vent discrimination and violence fidentiality. against LGBTI communities, and In addition to the possibility of Egypt: Court convicts requiring the state to make repara- one-year’s imprisonment, violators men for “debauchery” tions to LGBTI victims of state vio- would also have to pay a 10,000 lence or discrimination. rupees (about CAN$160) fine. The In April 2008, an Egyptian court The writ was heard by the guidelines are to be in effect from 24 sentenced five men to three years Supreme Court of Nepal in January 2008 until the Nepalese gov- in prison following their conviction November 2007. In its directive, ernment enacts the necessary legisla- on charges of “the habitual practice the Court ordered the Nepalese gov- tion ensuring the confidentiality of debauchery,” an offence under ernment to ensure LGBTI people’s of individuals involved in such sensi- Egyptian law purportedly used to right to life according to their own tive cases. prosecute men who have sex with identities, introduce laws providing men. Four of the men are alleged to equal rights to LGBTI people, and – Sandra Ka Hon Chu be living with HIV.10 amend all discriminatory laws against According to human rights groups, LGBTI people. these arrests are part of a widen- On the issue of same-sex mar- ing crackdown on men suspected of riage, the Supreme Court of Nepal U.S.: Texan man being HIV-positive that started in also issued a directive order to the acquitted in medical October 2007. Since then, police Nepalese government to form a com- marijuana case have arrested and charged 12 men, mittee comprised of a representative four of whom were sentenced to one appointed by the Nepalese govern- On 25 March 2008, Tim Stevens, a year in prison prior to the latest sen- ment, an advocate from the LGBTI man who uses marijuana to treat the tencings.11 All of the men arrested community and representatives from symptoms of HIV, won an acquit- have allegedly been forced to under- the police, National Human Rights tal on marijuana possession charges go HIV testing without their consent. Commission, Health Ministry, Law based on a “necessity defence.”9 In addition, human rights organi- Ministry and Ministry of Population Stevens, who was diagnosed with zations have reported that some of and Environment to conduct a study HIV in 1986, was arrested in October the men were handcuffed to hospital on other countries’ practice regarding 2007 while smoking marijuana in beds or desks at the police office, and same-sex marriage. The Nepalese front of his residence. some were forced to undergo forensic government is expected to legislate Jurors deliberated for less than 15 anal examinations.12 in this area, based on the committee’s minutes before acquitting Stevens, An attorney for the Egyptian recommendations. who was required to establish that an Initiative for Personal Rights has Significantly, in December 2007, otherwise illegal act was necessary appealed the ruling to Egypt’s Court the Supreme Court of Nepal also to avoid imminent harm more seri- of Cassation, the country’s highest ruled that persons, including those ous than the harm caused by break- appellate court.13 from the media, who reveal the ing the law. His attorney argued that identity of HIV-infected individuals, Stevens’ cannabis use was necessary – Alison Symington

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Indian court rules HIV the marriage. In 1998, the Supreme 7 S. Pant, “Great victory of Nepalese LGBTI!” International Gay and Lesbian Human Rights Commission 21 (December is a ground for divorce Court held that people who are HIV- 2007). Available via www.iglhrc.org. positive must so inform their future 8 “Courts to punish disclosure of HIV affected,” The Reports from November 2007 indi- spouses.16 Kathmandu Post, 27 December 2008. Available via cate that the Delhi district court www.fwld.org. 9 granted a man permission to divorce – Alison Symington M. Hess, “Acquittal of a medical cannabis user in Texas,” Associated Press, 27 March 2008. his HIV-positive wife. The couple 10 C. Johnston, “Egypt court jails five men for debauchery,” was married in October 2000. She Reuters, 9 April 2008. was found to be HIV-positive dur- 11 Human Rights Watch, “Egypt: New indictments in HIV ing a prenatal screening test several crackdown: persecuting people living with HIV/AIDS 1 14 Yakovenko v. Ukraine, Application no. 15825/06, feeds the epidemic,” news release, New York City, months after the marriage. Judgment, 25 October 2007. The case is available via 11 March 2008. www.echr.coe.int/ECHR/EN/Header/Case-Law/HUDOC/ Reportedly, the judge stated that 12 Ibid. HUDOC+database/. “marriage without sex is anathema” 13 “Egyptian court convicts suspected HIV-positive men 2 “HIV Brit gets 14 years,” The Local, 1 February 2008. and that “[t]he disease being sexually on charges of ‘debauchery,’ ” Kaiser Daily HIV/AIDS 3 communicable, the petitioner cannot Ibid. Report, 11 April 2008. be reasonably expected to live with 4 “British man found guilty of infecting women with HIV 14 “HIV ground for divorce: Court,” The Times of India, in Sweden,” International Herald Tribune, 15 November 2 November 2007. 15 her and lead a happy married life.” 2007. 15 B. Sinha, “Court allows ‘HIV’ divorce,” Hindustan Times, The court also found the peti- 5 “HIV Brit found guilty of infecting girls,” The Local, 15 2 November 2007. November 2007. tioner’s wife guilty of not disclos- 16 “Indian court lets man divorce HIV positive wife,” ing her HIV-positive status prior to 6 Ibid. Agence France Presse English, 2 November 2007.

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