Our advocacy is always informed by careful analysis of the best available evidence and human rights principles. In this section, you’ll find information about some of the research projects we undertook in 2019/2020.

Good Samaritan Project

In 2017, the federal government passed the Good Samaritan Drug Overdose Act. This was done in response to the growing opioid overdose crisis and was meant to provide protection from criminal charges for simple drug possession for people who call 911 because of an overdose. We wanted to know how people who use drugs have been affected by this law and whether it has had any measurable impact on their likelihood to call for help when witnessing an overdose. We gathered information directly from people who use drugs by holding focus groups and conducting surveys in five cities across Ontario. The results are an eye-opening look at how the Good Samaritan Drug Overdose Act affects those it is supposed to protect and ways to remove persistent barriers to calling for help in these life-and-death scenarios.

Gendering the Scene

While there has been research done on harm reduction in general, less research exists on what services are accessible for women and gender-diverse people, the necessary elements of gender-sensitive harm reduction services, and specific laws and policies that impede their access to services. We brought together the existing research into one easily accessible document, with recommendations for law and policy reforms that will improve access. Our report shines a light on where gaps in gender-sensitive services exist and how they can be addressed today.

Global Fund Evaluations

The Global Fund to Fight AIDS, Tuberculosis and Malaria invests more than US$4 billion every year to support programs designed to fight HIV, tuberculosis (TB), and malaria in more than 100 countries. In 2017, the Global Fund launched the Breaking Down Barriers initiative in 20 countries. This initiative was meant to improve national responses to remove human rights–related barriers to services, coordinate action plans, and carry out a monitoring and evaluation of these efforts. Three years into this initiative, it’s time to assess progress so far.

As part of a larger team, several HIV Legal Network lawyers have been conducting these reviews. With our human rights expertise, we looked at factors influencing program implementation, the level of community engagement, and progress in the removal of specific human rights barriers. Reviews of Sierra Leone and Ukraine completed this year, and other country assessments are well underway, though complicated by the COVID-19 pandemic. Thorough mid-term assessments will help countries to pivot, maintain, or scale-up programs to make the biggest dent in removing human rights–related barriers to HIV, TB, and malaria services around the world — crucial work to ensure these health services save lives.

Challenging unfair laws in court is a cornerstone of our work at the Legal Network — and is sometimes an essential way to get governments to address injustice. This, in turn, leads to a more equitable society where human rights for all are respected and protected.

HIV Criminalization

Around the world, people living with HIV are unfairly criminalized and it’s part of our mandate to challenge the laws that target them. This year, our work in this area had impact across Canada. In April 2019, we appeared before, and submitted a brief to, the House of Commons Standing Committee on Justice and Human Rights, outlining the current state of HIV criminalization in Canada and what needed to happen to improve the situation. In June 2019, the committee released its report, recommending important limits to the unjust application of the law, including the removal of HIV non-disclosure from the reach of sexual assault law and limiting any criminal charges to cases of actual transmission. This was a major step forward and we were happy to see that several of our recommendations were endorsed by the Committee. We will continue to push for legislative reform. Our advocacy also led to changes at the provincial level in British Columbia, where there were some modest — but still insufficient — changes to the BC Prosecution Services’ policy, such as recognizing condom use and other factors that “may” weigh against proceeding with a prosecution.

We also appeared before the Ontario Court of Appeal in February 2020 when we intervened in R. v. N.G. The case involved a young man convicted in 2017 of not disclosing his HIV status to his partners, even though condoms were used every time with no allegation of incorrect usage or transmission. We argued that correct condom use negates the legal obligation to disclose as science has shown that there is no chance of transmission in such circumstances. This argument relies on the two expert consensus statements — Canadian and international — that the HIV Legal Network has supported scientists and clinicians in developing, in order to ensure the law is informed by the best available science. The Court ultimately disagreed and upheld the man's conviction in August 2020, underscoring the importance of federal law reform to prevent further misuse of the criminal law.

Litigating for Liberation

As followers of the Legal Network will know, we’ve been actively pursuing legal cases in the Caribbean, which is home to some of the most repressive anti-LGBTQ laws in the world. We’ve previously either launched or supported cases in Jamaica and Barbados, and in June 2019 at World Pride in New York City, we added Dominica to this list. In this case, a gay man — who must stay anonymous for his own safety — filed suit against the Government of Dominica, arguing that the laws criminalizing the consensual sexual activity of LGBTQ adults are unconstitutional. The case builds on the momentum seen in other countries, including Botswana and India, which recently repealed their own discriminatory laws. We expect the case in Dominica to take time to resolve, but we remain hopeful that this work will eventually help tear down laws that threaten LGBTQ people with imprisonment for being who they are.

Drug Policy

Change can be slow coming at times. This is certainly true when it comes to drug policy, which is rooted in and perpetuates the stigma associated with drug use. We saw this in our work in Russia in November 2019, where the European Court of Human Rights failed miserably to uphold rights precisely because of this. In this case, Abdyusheva and Others v. Russia, the complainants claimed that their rights had been violated by Russia's criminal prohibition on opioid substitution therapy (OST). OST is proven to improve health and social outcomes for people with opioid dependence and is endorsed by the World Health Organization and UNAIDS. The decision should have been clear — and yet the European Court would not compel Russia to provide the treatment, despite unsafe injection drug use driving the country's HIV epidemic. We weren't alone in our dismay — the Court’s misguided and deadly decision won a poll run by the Strasbourg Observer for the worst judgement of 2019.

Thankfully, there are encouraging signs in other decisions by the same court. In March 2020, the ECtHR ruled in favour of Y.I., a mother of three living with drug dependence in Moscow. In 2014, her parental rights were terminated because of Russia’s unfair drug policies and her children were sent to foster care. Thanks to a team from the Andrey Rylkov Foundation for Health and Social Justice, with technical support from the HIV Legal Network, the court ruled that Y.I.’s rights had been violated. We need to harness this precedent in ongoing advocacy for more humane treatment of people who use drugs in Russia.

Advocacy takes many forms and sometimes it happens outside the courtroom. When supervised consumption services (SCS) in Alberta were threatened, we engaged in an outreach campaign involving open letters signed by dozens of organizations. We’ve kept up this pressure even as the Alberta government announced an unnecessary “review” of the sites — an undermining tactic that has also been seen in Ontario. Through it all, we’ve kept calling on the Government of Canada to streamline the SCS approval process, give five-year exemptions for new sites, and fund these sites themselves where necessary, thereby avoiding the risk of provincial cuts leading to closures. This advocacy normalizes these essential, life-saving health services and ultimately ensures they can be offered quickly wherever they’re needed.

We believe that people should have the information they need to be their own advocates for health and human rights. One important role of the Legal Network is to support people living with, at risk of, and affected by HIV with tools to demand meaningful change — and to equip their allies to do the same.

The Perils of Protection

In 2019, we released our Perils of Protection report and video, which documented the experiences of sex workers living under the Protection of Communities and Exploited Persons Act (PCEPA). The Act legally enshrined sex workers as victims, invalidating the labour of sex work as well as the agency and consent of people who sell or trade sexual services. The report was launched at an event last spring where we welcomed sex workers' rights advocates and the report co-authors who told an audience how the PCEPA has affected them, the ways in which law enforcement employ that law and other laws and policies to surveil, harass, arrest, and charge sex workers, and about what needs to be done to uphold sex workers' human rights. The report has since been cited by other researchers and advocates reviewing the impact of criminal and other laws that affect sex workers, and to press the case for their repeal.

Symposium

In June 2019, we held our eighth Symposium on HIV, Law, and Human Rights. The theme was HIV criminalization and the aim was to provide an overview of the state of the issue in Canada and where our advocacy needs to go from here. We had a wide range of speakers — some shared their personal experiences of being criminalized, others spoke about the science of HIV and its transmission, while others gave their perspectives on the prospect of policy changes. It was also an opportunity for attendees to hear directly from parliamentarians — notably federal Attorney General and Minister of Justice David Lametti — about the future of HIV criminalization in Canada. Gathering all this knowledge in one place isn't an easy undertaking, but the results are worth it. Participants left with crucial knowledge and renewed their commitment to ending HIV criminalization. Positive and extensive media coverage provided other members of the public a window into why this work is so critical. You can read more about the event in our Symposium report.

HIV Criminalization brief and media primer

In addition to gathering together to inform and reinvigorate our collective advocacy, we also need resources people can return to as needed. To that end, we produced an updated brief on The Criminalization of HIV Non-Disclosure in Canada: Current Status and the Need for Change and our HIV criminalization media primer. The two pieces go hand in hand, though the audiences are different. One is designed to give an overview of the issue to those who need to know where things stand with the science, and in law and policy in jurisdictions across the country. It's been distributed to politicians, advocates, and other community organizations as a tool to help them understand the reasons behind the call for change and to advocate for it, too. The media primer recognizes the unique role that media play in shaping public opinion about HIV criminalization and gives journalists the information they need to produce unbiased stories that avoid — or even question — the sensationalized nature of some coverage. By creating these two resources, our hope is to help reshape the public perception of HIV criminalization. We need to educate those who are in a position of power and who have the ability to effect change — policy makers and the media are key to focusing the conversation, moving beyond misinformation and stigma to science, reason, and a more informed discussion.

Change is more likely when communities mobilize, especially when policy makers can’t or won’t act on issues they consider unpopular, despite the evidence and the need to uphold human rights. This year was a particularly successful one for us on this front.

Election 2019

In October 2019, Canadians went to the polls for a federal election. With the parties creating their platforms and wanting to reach voters, we knew we had an ideal chance to engage with them and make sure our issues were front and centre. We created a questionnaire and asked all federal parties to respond with their positions on important issues, including drug policy, sex work law reform, and HIV criminalization, among other things. Using the responses we got from four of the five parties (with one party failing to reply), we created our most successful social media campaign to date. Hundreds of thousands of people liked, shared, or otherwise interacted with our graphics and learned more about the parties' positions on the policy issues central to our work.

Education on the issues — as we provided — is critical, but so is helping people understand what they can do with their knowledge. That’s why we also created an election toolkit with a “how to speak to your candidate” feature. The page was visited more than 2000 times in the month before the election.

Supervised Consumption Services

Harm reduction is a key part of any effective drug policy. Despite overwhelming evidence that harm reduction works, it can also be surprisingly controversial. Convincing some policy makers that drug use should be a health matter, not a criminal justice one, can be difficult. When harm reduction sites in Alberta were threatened with a loss of government funding, we wrote an open letter to the premier and other ministers that was endorsed by 30 organizations, explaining exactly why and how these services save lives. When the federal election was getting underway, we started a petition to show the party leaders how much public support there is for supervised consumption services. The petition was shared on social media, through targeted emails, and by other organizations across Canada. So far, we have more than 1600 signatures and we will continue to gather support as we push the government and other federal parties to scale up these services.

Russia Street Lawyers

This year marked the winding down of a three-year project in St. Petersburg, Russia. The Legal Network provided legal technical support to a team of “street lawyers” — community legal workers drawn from the community of people who use drugs. Through the program, these community legal workers were trained to help their peers overcome legal barriers to HIV services, across the continuum from testing to antiretroviral treatment and other care. This included making sure that people entering the criminal system because of drug charges didn’t lose access to their HIV and tuberculosis (TB) treatment and medication, as is unfortunately common in Russia. Over the span of the project, 968 clients with HIV benefitted from such legal support, of whom 615 received access to antiretroviral treatment and 288 achieved an undetectable viral load. A further 200 clients with HIV and TB were able to successfully complete their TB treatment, avoiding the common health complications that can develop in people with these complex diagnoses. The financial savings of this project were immense, as ensuring proper and timely treatment avoids more costly treatments later. A legacy of the program is ensuring that people on the ground have the knowledge and skills to continue this work even after the program has wrapped up. The team will expand the project as part of the National HIV Strategy in partnership with non-governmental organizations (NGOs), including with the support of the Global Fund to Fight AIDS, Tuberculosis and Malaria, in other regions of Russia over the next three years.

Background

Human rights don’t — or shouldn’t — end at the prison gates. People who use drugs and are imprisoned deserve the same kind of access to harm reduction services as those outside. In 2012, together with a former prisoner and community partners, we launched a constitutional court challenge against the Government of Canada for refusing to implement a prison-based needle and syringe program. Prisoners who use drugs were forced to use makeshift injection equipment, reuse equipment, and often share it with others. In stark contrast, people outside prisons have access to harm reduction programs that offer sterile injection equipment, giving them critical tools to protect their own health, including against infection with HIV and hepatitis C virus (HCV). Prisoners had nothing of the sort, despite all the evidence of the need in federal prisons and the benefits of such programs in prisons around the world.

The Court Case

Steve Simons was the individual applicant in the case. Steve contracted HCV while inside, when his personal injection equipment was used by another prisoner without his knowledge or permission. The case hinged on the argument that the Correctional Service of Canada (CSC) had a duty to provide sterile injection equipment to prisoners to avoid precisely this kind of sharing of equipment — and that failing to provide health care equivalent to that available outside prisons violated prisoners’ Charter rights. This has disproportionate impact on Indigenous people and women in federal prisons. When we launched the case, CSC had a complete ban on possession of sterile injection equipment by prisoners who use drugs, even though other jurisdictions outside Canada had successfully implemented prison needle and syringe programs for decades.

Our court case was the final catalyst for CSC to introduce — mere months before our first hearing date in court — its “Prison Needle Exchange Program.” Before our case, CSC had refused to implement anything despite years of recommendations, including from its own expert advisory committees, and evidence from the Public Health Agency of Canada. That program is now rolling out, though much too slowly and with critical flaws; most prisoners still don’t have easy and confidential access to sterile injection equipment. This means our advocacy must continue.

Public Education

We knew that the case for a prison needle and syringe program also depended on community support. The concept can be a difficult one to explain to those without context — some people might wonder why the government should support people who’ve been convicted of criminal offences to continue their drug use — so we embarked on a campaign of public education. We produced a report documenting the experiences of prisoners and former prisoners from across Canada with injection drug use. We launched a website to house updates about the case. We filmed short testimonials from people with first-hand knowledge about the issue. We engaged with journalists around the world and fielded many questions. It worked. When our court date finally arrived, we wanted to show the groundswell of support for prisoners’ health. We put out a call for supporters to gather outside the courthouse with signs and banners and the community responded. We also alerted the media about the hearing. For our first court date in December 2019, we had a crowd gather on the front steps, media coverage, and good momentum. Co-applicant Steve Simons shared with everyone why this case was important to him. And even though the hearing was ultimately delayed until March 2020, the support showed how many people care about the health and human rights of people in prison.

The Decision

When the decision was finally delivered, it was a disappointing one. On the positive side, the court acknowledged that when we launched our case eight years ago, there were “compelling constitutional arguments” that prisoners must have access to sterile injection equipment as “essential health care.” But because CSC was still in the process of rolling out its program, the judge decided that it was “premature” to find that the failure to make equipment available to the vast majority of prisoners still without access to the program, or that the prison needle exchange program now being implemented by the CSC, breaches prisoners’ constitutional rights.

We’re proud of what we have accomplished to date. When we launched this case, prison-based needle and syringe programs didn't exist anywhere in North America. We’ve successfully moved the needle on this critical issue — even securing a public commitment by the government to implement their program in all federal prisons.

Our efforts to fight for a better program that is accessible to all prisoners are not over. And we will continue to voice our support for prison harm reduction because prisoners' rights are human rights. In Steve’s own words, “Let me state in the strongest possible terms: prison health is public health. A prison needle and syringe program protects all Canadians.”