The implications of Mabior for people living with HIV

Posted By Rosel Kim – Jan. 16, 2013

Part 2

In R v Mabior, the Supreme Court affirmed that if a person living with HIV does not disclose his or her HIV status to a sexual partner, he or she could face a criminal charge of aggravated sexual assault, regardless of whether transmission of HIV occurred. Part I of this blog series summarized the actual ruling. In this post, I explore the impact of the decision on people living with HIV (PLHs).

 

1. POTENTIAL DETERRENCE TO TESTING AND TREATMENT

One of the main defences a person living with HIV could pose to the court is the ignorance of one’s HIV status. If a person did not know he or she had HIV at the time of intercourse, he or she lacks the requisite “guilty mind” or mens rea required to face a criminal charge. In R v Williams, a case decided before Mabior, the Supreme Court lowered the accused’s charge from aggravated assault to attempted aggravated assault because there was a possibility that the accused transmitted HIV to his before knowing his HIV status.

 

Many advocates of decriminalizing HIV non-disclosure have argued that a criminal sanction attached to a person’s HIV status would deter people from getting tested and seeking treatment. The Supreme Court rejected this argument from the interveners in Mabior for lack of evidence.

 

However, a study released three months after the Mabior hearing affirms the interveners’ argument. A non-randomized survey of gay men in Ottawa found that criminalization would influence the number of people seeking HIV testing and treatment. In the study,

  • 17% of the survey respondents noted that nondisclosure criminal prosecutions affected their willingness to get tested
  • 13.8% of the respondents said the criminal law made them afraid to speak with nurses and physicians about their sexual practices.

While the percentage of people admitting to a potential behavioural change is relatively small, it nonetheless proves that criminal law has a realistic possibility of changing people’s behaviour. Therefore, the overbroad criminal law against PLHs poses a serious barrier to preventing new HIV infections by discouraging people from seeking HIV testing or treatment.

 

References:

R v Mabior, 2012 SCC 47.

R v Williams, [2003] 2 SCR 134.

Patrick O’Byrne et al, “Nondisclosure Prosecutions and HIV Prevention: Results From an Ottawa-Based Gay Men’s Sex Survey” online: (2012) [forthcoming in May 2013] Journal of the Association of Nurses in AIDS Care

Stopping Bullies: Does the answer lie in the legislature?

Posted By Jessica Walsh – Jan. 10, 2013
In part II of the ‘Dealing with Bullying’ Blog Series, MJLH online editor Laura Crestohl explored the Supreme Court of Canada’s response to cyberbullying in A.B. v Bragg, which recognized that cyberbullying causes objective harm to young people. Part III now turns to outline general policy concerns surrounding bullying and questions whether legislatures have a role to play in preventing bullying.

 

PUBLIC POLICY CONCERNS

Bullying is a societal concern. It is not simply a problem for schools to address, nor a rite of passage for children, and thus a “children’s problem”. Many reasons reveal why bullying is of concern to all Canadians and should be a focus of policy agendas, including:

  • Bullying has been shown to cause negative health effects (See PartI of the Dealing with Bullying blog series).
  •  Children do not necessarily grow out of bullying. Without intervention, bullying may transform into new types of aggression, affecting relationships throughout a person’s life.
  • According to the UN Convention on the Rights of the Child, Canada has a duty to educate children to respect others and to act with peace and tolerance (art. 29); and to “protect [children] from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation” (art. 19).
  • A recent cross-national research study shows Canada is lagging in bullying prevention compared with other countries.

This post by Manveen Patwalia at Define the Line, a McGill-based research centre focused on cyberbullying and digital citizenship, does an excellent job of demonstrating how bullying is a concern not only for schools, but for families, policymakers, the judiciary and society at large.

 

HOW IS CANADA RESPONDING?

A)   Legislation

In Canada, six provinces (BC, ON, NB, NS, QC, AB) have established anti-bullying laws. Other provinces are considering doing the same.

On November 21st, Parliament voted against a motion introduced by NDP MP Dany Morin to study types of bullying and to share best practices for dealing with bullying. While this motion fell short of demanding federal anti-bullying legislation, it did raise the question of whether Canada should consider adopting a national anti-bullying strategy, like other countries such as Norway and Finland.

However, Bill C-273, which proposes to amend the Criminal Code to make cyberbullying a criminal offence, is currently at the Second Reading and Referral to Committee stage.

 

B) Policy

Bullying prevention polices exist in Canada in many provincial departments of education. Many of these policies focus on creating safe and inclusive school environments. For example, Ontario began implementing its Equity and Inclusive Education Strategyin 2008. This policy promotes inclusive and safe school environments, aims to create procedures so that students and teacher can report incidents of bullying safely, and seeks to provide guidance to school boards on how to monitor bullying. Other examples include Newfoundland and Labrador’s Safe and Caring Schools Initiativeand British Columbia’s Safe, Caring and Orderly Schoolspolicy.

 

WHAT IS THE BEST APPROACH?

Alberta’s new anti-bullying legislation has sparked fierce debate over the merits of addressing bullying through law since coming into force on November 19th. Alberta’s law requires students not to tolerate bullying and to report it, whether it happens on school grounds or on the Internet. It would allow schools to suspend students who are complacent bystanders to bullying. Reactions to this new law, which some argue is too extreme, show how legislation is being questioned as the best way to addressing bullying:

  • A report from the Institute of Marriage and Family, a socially conservative lobby group, suggests forcing children into reporting bullying places too much responsibility on children to enforce anti-bullying acts, and may actually make them more vulnerable to harm.
  • Brenda Morrison, a criminology professor at SFU, says we need to empower students to report bullying as good citizens rather than create a culture of fear in schools with heavy sanctions.

However, a poll earlier this year revealed that a large number of Canadians believe that bullying should be considered a crime, even when violence is not a factor. These individuals see the potential for strict legislation to be an effective deterrent to bullying.

Nonetheless, many voices disagree, and feel that anti-bullying laws is the wrong approach.

 

It is clear that Canadians agree bullying is a serious societal issue requiring government action. While it can be tempting to address serious problems with serious penalties (see Alberta’s new anti-bullying law), an appropriate response to bullying should include the expertise of academics and educators, who deal with bullying on a more local level. Their views largely signal that teaching empathy and good citizenship, including good digital citizenship, through educative methods over many years is a better way to foster attitudinal shifts toward bullying in society. This point should not be forgotten by provincial legislatures, as they discuss provincial anti-bullying strategies.

“The Madness of Medicare in Canada” – Webinar by Dr. Brian Day

Posted By William Stephenson – Jan. 4, 2013

 

On Wednesday November 28, Dr. Brian Day, the 2007-2008 president of the Canadian Medical Association, presented a webinar entitled “The Madness of Medicare in Canada” for the Fraser Institute.

Dr. Day argued that Canadians should be able to pay for private insurance and private care. He also addressed a lawsuit his facility, the Cambie Surgery Centre, and other plaintiffs have launched against BC’s Medical Services Commission to try to get a ruling similar to Chaoulli, which held that Québec’s prohibition on private insurance violated the Québec Charter of Human Rights and Freedoms.

Dr. Day explained the title of his webinar saying that “in years to come” he thought we would come to think that today’s health care system was “madness”. “There is only one country that has a law that prevents citizens from spending their money on health care for themselves or a loved one,” he said, “Canada.”

However, he was quick to point out that Canada does not have a single payer system. Instead he called the system a hybrid, composed of, among others:

  • Public funding
  • Workers’ compensation
  • Prisoners treatment regimes
  • Politicians’ treatment regimes
  • Foreign travellers’ insurance

 

According to Dr. Day, 70% of Canadians have private insurance for medically necessary things like prescriptions, ambulances, and the like. “The real challenge is lack of access to care for those who need it,” he said. “The individuals with the worst access are the poor and the soci-economically disadvantaged.”

So how would allowing private insurance and care improve access for these groups?

According to Dr. Day, it would lead to greater efficiency and thus to greater availability of healthcare providers.

Comparing it to Air Koryo, North Korea’s state owned airline (and the “World’s Only 1-Star Airline”), Dr. Day described the Canadian health care system as extremely inefficient and unresponsive to the real needs of patients. Some of the problems he outline with our health care system include:

  • In his view, the system is extraordinarily bureaucratic. For example, in Canada, there is a public health administrator for every 1 415 people, while in Germany, there is a public health administrator for every 15 545 people.
  • Provinces are forced to cut doctors’ operating hours, trying to balance the budget. Dr. Day saw his weekly operating hours drop from 22 to 5 under the cuts made in BC in the 1990s.
  • Some patients suffer irreparable harm or die waiting for care.

According to Dr. Day, 200 children were waiting for spinal surgery at BC Children’s Hospital. One of those children, Walid Khalfallah, is now permanently paralyzed because his turn did not come soon enough.

He proposed the following strategy to address inefficiencies in the Canadian Healthcare regime:

1. REDUCE PUBLIC SPENDING

  • Allow private insurance and care
  • Encourage healthy competition and incentives
  • Discuss what services should be covered
  • Empower individuals to take responsibility for their health choices
  • Reduce wait times
  • Reduce bureaucracy

2. INCREASE REVENUE

  • Encourage Canada to become a destination for health tourism

 

We should look to Europe for inspiration, especially to France, Germany and Switzerland, which have a public/private mix. According to him, even Communist countries like China and Cuba are warming to a private element in their health care systems.

Dr. Day thought Chaoulli would shake up health care in Québec, but the decision’s impact has fallen short of his expectations. He hopes, however, that the lawsuit the Cambie Surgery Centre is bringing will allow him and others to trail blaze where his colleagues in Québec did not dare go.

A recording of the webinar is available here.