June 21, 2017
Today, National Aboriginal Day, we recognize not only the cultures and contributions of First Nation, Inuit and Métis people in Canada, but also the resilience and strength of these communities. Many Indigenous Peoples have had to cope with traumatic life circumstances, including those related to experiences with the residential school and child welfare systems in Canada, legacies of colonialism and racism, and childhood traumas. And while government-funded services and supports exist, particularly when it comes to HIV treatment, care and support, there remains a lack of culturally relevant programs and services in many Indigenous communities.
For Indigenous Peoples living with HIV, limited access to culturally relevant health care, few guarantees of confidentiality relating to a diagnosis, and experiences of stigma and discrimination are just a few of the barriers to effective HIV treatment, care and support. Not all communities in Canada have equal access to HIV treatment and care, and a lack of consistent access to HIV treatment means it may be difficult to achieve an “undetectable” viral load — which is one way people living with HIV can reduce the risk of prosecution. The ongoing threat of criminal charges for HIV non-disclosure is a concern all those living with HIV face.
In fact, Indigenous Peoples are more likely than non-Indigenous people to be charged with crimes related to HIV non-disclosure. Despite accounting for only four per cent of Canada’s population, Indigenous people account for six per cent of those charged for HIV non-disclosure since 1989. Of the women charged between 1989 and 2016 whose ethnicities were known, 42 per cent were Indigenous. This disproportionate use of the criminal law against Indigenous women is particularly troubling given the connection between gender-based violence and HIV. Indigenous women face higher rates of violence, and many women do not feel that they can safely disclose their HIV status for fear of intimate partner violence.
The ways in which the criminal law against HIV non-disclosure is applied against Indigenous people living with HIV are at odds with the Truth and Reconciliation Commission’s calls to action, which underscore the need to fulfill the rights to health of Indigenous people (recommendation #18) and the importance of eliminating the overrepresentation of Indigenous people in the criminal justice system (recommendation #30). If Canada is to uphold the human rights of Indigenous Peoples and fulfill the Commission’s calls to action, it must reform the overly broad and unjust use of criminal law in cases of HIV non-disclosure and engage in meaningful consultation with Indigenous Peoples living with HIV in the law reform process.
On this National Aboriginal Day, we are reminded of the work that must be done to respect, protect and fulfill the human rights of Indigenous Peoples in a manner that is culturally relevant and in partnership with Indigenous communities, organizations and individuals. We are inspired by the leadership of our Indigenous colleagues and the demonstration of solidarity and empowerment within Indigenous communities particularly in the struggle for human rights of people living with HIV. The Legal Network continues to tackle unjust laws and challenge stigma and discrimination to protect the health and human rights of Indigenous people living with HIV.
P.S. The Legal Network in partnership with the Canadian Aboriginal AIDS Network recently produced a series of legal information resources for Indigenous communities living with or affected by HIV. These publications are available online in English and French:
A brochure for Indigenous communities with important information about the law in Canada as it relates to HIV disclosure.
A guide for Indigenous Peoples with information related to harm reduction services such as needle and syringe programs, safer drug consumption services, opioid substitution therapy (e.g., methadone) and naloxone.
A booklet for prisoners who identify as First Nations, Inuit and Métis, and who are imprisoned in a federal prison or healing lodge run by the Correctional Service of Canada (CSC).
A guide that provides answers to common questions on disclosure, privacy and confidentiality in the health care settings, workplaces, post-secondary institutions and other settings — places where many Indigenous people living with HIV have expressed concerns about their privacy.