Criminal Justice System's Response to Non-Disclosure of HIV

Part A: HIV and Canada

HIV is a retrovirus that causes HIV infection and, over time, acquired immunodeficiency syndrome (AIDS). AIDS is a condition that involves progressive failure of the immune system, which allows life-threatening infections and cancers to thrive. HIV infection can occur through transfer of blood, semen, vaginal fluid, pre-ejaculate and breast milk. The Canadian AIDS Society also considers rectal fluid to contain sufficient virus to transmit HIV sexually.Footnote 3 HIV is both a blood borne and sexually transmitted infection.

According to national HIV estimates released in December 2016 by PHACFootnote 4, 65,040 persons (range: 53,980-76,100) were living with HIV in Canada at the end of 2014. Of those, 52,220 persons (range: 47,230-57,440) or 80% (range: 73-87%) were diagnosed, i.e., were aware of their HIV positive status. Among persons who were diagnosed, 39,790 persons (range: 36,470-43,140) or 76% (range: 70-82%) were on antiretroviral treatment, and among them, 35,350 persons (range: 32,430-38,260) or 89% (range: 84-93%) had a suppressed viral load (i.e., less than 200 copies of HIV per ml of blood).

The available data on the epidemiology of HIV in Canada, the groups that are disproportionately affected, the impact of HIV on those who contract it and the effects of antiretroviral treatment, are summarized below. These data show that HIV, once a fatal condition, is now manageable, thanks to significant advances in HIV treatment. However, it remains incurable and has serious implications for those who contract it, both physical and psychological. The data also show that an increasing number of Canadians living with HIV are accessing treatment, which is critical to stopping the spread of HIV. Timely initiation of treatment and remaining on HIV medication are important to achieving viral load suppression, which is a key marker for successful treatment, prevents HIV-related illness and optimizes health. Sustained treatment also reduces the potential for onward HIV transmission in the community.

1. Statistical Data on HIV in Canada

HIV diagnoses in 2015 increased from 2014

According to PHAC’s 2015 surveillance data,Footnote 5 which is the most recent data available, there were 2,096 new cases of HIV diagnosed in Canada in 2015, up 2.2% from the 2,051 diagnosed in 2014. Ontario reported the highest number of cases, followed by Quebec, British Columbia and Alberta.

The most significant increases in HIV diagnoses in 2015 were among those aged 25 to 29

Females made up 24.1% of HIV cases in 2015, down slightly from 24.3% reported in 2014. Youth aged 15-24 represented 10.8% of cases in 2015, down from 11.4% in 2014. The largest increases with respect to the proportion of HIV diagnoses by age group were among those aged 25-29, up from 11.8% in 2014 to 15.8% in 2015, and those aged 50 years and older, up from 21.9% in 2014 to 23.9% in 2015.

The most common exposure category in 2015 was men who have sex with men (MSM), followed by heterosexual contact

In 2015, the exposure categories (also known as risk factors) reported among adults (i.e., older than 15 years) who were diagnosed with HIV were as follows:

Among males, the MSM category accounted for 59.7% of cases, followed by heterosexual contact at 21.4% and injection drug use at 12.5%. Among females, heterosexual contact accounted for 64.4% of cases, and injection drug use accounted for 27.9%.

In 2015, 45.6% of cases were reported as “White,” followed by 18.7% as “Black” and 17.5% as “Indigenous”. There were 232 infants perinatally exposed to HIV in 2015; three of these infants were confirmed to be HIV-infected.

Persons from countries where HIV is endemic continue to be over-represented among those living with HIV in Canada

According to PHAC’s 2014 HIV estimates,Footnote 6 in 2014, an estimated 358 new infections (range: 250-470) involved heterosexual contact among people born in HIV-endemic countries (primarily countries in sub-Saharan Africa and the Caribbean). This category accounted for 13.9% of new infections in Canada in 2014, although people born in HIV-endemic countries represented approximately 2.5% of the overall Canadian population. The HIV incidence rate for this population was 6.3 times higher than the rate for other Canadians.

Indigenous people continue to be over-represented among those living with HIV in Canada

According to PHAC’s 2014 HIV estimates,Footnote 7 in 2014, an estimated 278 new HIV infections (range: 200-360) occurred among Indigenous people, which represented 10.8% of all new infections in 2014. By contrast, Indigenous people represent approximately 4.3% of the total Canadian population. This 2014 estimate is slightly lower than the estimate for 2011, which was 349 (range: 250-450) new infections and 12.5% of all new infections. The HIV incidence rate for Indigenous people was 2.7 times higher than the non-Indigenous Canadian population in 2014. Nearly half (45.3%) of these new infections were attributed to injection drug use, followed by heterosexual contact (40.3%), MSM (10.4%) and a combination of injection drug use and MSM (4.0%).

2. Onward Transmission by Persons whose HIV is Undiagnosed vs. Diagnosed

U.S. data indicate that persons who are diagnosed but not treated were responsible for the majority of new infections in 2009

Canada does not have national data on the rate of onward transmission by persons whose HIV is diagnosed vs. undiagnosed. However, a 2015 U.S. study found that persons who were infected but undiagnosed (18.1% of the total HIV-infected population) were responsible for 30.2% of the estimated total number of HIV transmissions in the U.S. in 2009, and persons who were diagnosed but had not received medical treatment were responsible for 61.3% of those transmissions.Footnote 8

Québec data indicate that early HIV infections accounted for half of onward HIV transmissions in 2007

In 2007, researchers in Québec published the results of a study indicating that early HIV infections, i.e. occurring less than 6 months after the development of detectable antibodies to HIV in the blood as a result of infection (i.e., seroconversion), accounted for 49% of onward transmissions of HIV in an urban setting.Footnote 9 Early HIV infections are often undiagnosed.

3. Mortality Rates from HIV/AIDS

HIV-related deaths have been steadily declining

Based on the most recent Vital Statistics available, there were 241 deaths from HIV infection in Canada in 2013. The data reflects a steady decline in deaths from HIV infection since 2009; there were 276 deaths from HIV in 2012, 306 in 2011, 336 in 2010 and 355 in 2009.Footnote 10 However, there are several limitations associated with the use of vital statistics data to estimate HIV-related deaths, including delays in reporting and under-reporting.Footnote 11

Furthermore, researchers have recently found that, among persons receiving antiretroviral therapy in British Columbia, there were significant decreases in HIV-related deaths between 2001-2002 and 2011-2012 (down from 2.34 per 100 person-yearsFootnote 12 in 2001-2002 to 0.56 per 100 person-years in 2011-2012).Footnote 13

4. HIV Testing Rates

HIV testing rates have increased since 1996

Although national HIV testing rates are not available, the British Columbia Centre for Excellence has reported an overall increase in HIV testing from 2009 to 2014 in the province of British Columbia (3674.3 to 5942.7 tests per 100,000 population, an increase of 61.7%).Footnote 14 In other provinces that have published their HIV testing rates, an overall increase in HIV testing has also been reported, for example, in Saskatchewan from 2006 to 2015 (42,955 tests to 72,659 tests, an increase of 69.2%),Footnote 15 in Ontario from 1996 to 2012 (2520.0 to 3230.0 tests per 100,000 population, an increase of 28.2%),Footnote 16 and in Québec from 2005 to 2014 (3,655 to 4,056 tests per 100,000 population, an increase of 11.0%),Footnote 17 although the increase was less pronounced in Québec than in other provinces.

5. The Impact of HIV and HIV Treatment

HIV has significant implications for the health and well-being of those infected

Persons living with HIV can be affected by a range of medical conditions related to their HIV infection, including illnesses related to AIDS, treatment side effects, and HIV-associated non-AIDS conditions. PHAC has described the following impacts:Footnote 18

Transmission of HIV may be prevented by post-exposure prophylaxis

Post-exposure prophylaxis (PEP) is a prevention intervention which consists of administering a combination of antiretrovirals within 72 hours of HIV exposure and continuing daily treatment for four weeks. PEP can be used for occupational exposures when people are exposed in the workplace to bodily fluids that may contain HIV (for example, a healthcare worker who accidently suffers a needle-stick injury). PEP can also be used after exposure to HIV in other situations (non-occupational exposure) to reduce the chances of infection, such as after condomless sex, a condom breaking during sex, needle sharing or sexual assault.Footnote 20 PEP reduces the risk of HIV transmission by over 80%.Footnote 21

However, there are a number of challenges for patients that may limit completion of currently available PEP regimens. These include pill burden from having to take up to 4 pills per day, taking pills more than once daily, cost, and toxicities. PEP has been associated with side effects such as nausea/vomiting, diarrhea, headache, and fatigue/weakness. Clinical trials from different countries have demonstrated better tolerability, completion rates, and fewer drug–drug interactions with newer antiretroviral agents.Footnote 22

HIV is now considered a chronic yet manageable illness, largely due to antiretroviral medication

There has been a significant and progressive increase in life expectancy and decrease in mortality among persons living with HIV who have been treated with antiretroviral medication (ART), also known as “highly active antiretroviral therapy” (HAART) or “combination antiretroviral therapy” (cART). The increased availability and uptake of ART has been associated with improved virological outcomes, decreased drug-resistance and dramatic reductions in the incidence of AIDS-defining illnesses.

Various challenges are associated with treatment

In one study, which looked at the effects of antiretroviral therapy on quality of life, persons living with HIV viewed treatment as a trade-off between diminished quality of life and extended longevity. They identified issues such as the consequences of side effects, including impacts on self-esteem, social and sexual health, and the impact of drug toxicities. Other negative factors identified included tensions with health care workers, loss of independent decision making, disincentives to returning to work, the burdens of taking medication and the stress of hiding their HIV positive status.

Treatment in Canada is publicly available through PT health systems

Most persons living with HIV access treatment, care and support. However, not all persons living with HIV in Canada can or do access recommended treatment. The decision of when to begin treatment involves weighing a number of important considerations. Once treatment is commenced, patients are advised to remain on treatment for the remainder of their lives. A number of personal and social barriers may impact the ability and willingness of persons living with HIV to follow treatment when it is recommended by a doctor.

A variety of factors influence treatment success

Persons living with HIV must take their medications daily; treatment interruptions will impact effectiveness, cause viral loads to increase and may result in drug resistance. Patients may also respond differently to various treatment regimens and deferred or delayed uptake of treatment has an impact on mortality. Significantly, food insecurity, where access to nutritionally adequate food is limited or unstable, has been associated with treatment interruptions, poorer treatment outcomes and HIV-related mortality.

Treatment regimens can cause side effects

Side effects of treatment can negatively impact health and quality of life. It may be difficult to distinguish whether health problems and symptoms experienced by persons living with HIV are caused by HIV medications or HIV infection itself. In many cases, these health challenges may be a result of both treatment side effects and HIV infection. Side effects of HIV treatment vary between patients and between antiretroviral medication regimens. While some patients experience severe side effects from treatment, others may observe mild to no adverse reactions. Reported side effects include: loss of appetite; nausea and vomiting, digestive problems such as diarrhea and gas; fat redistribution; cardiovascular problems including strokes, heart attack; insulin resistance and diabetes; bone problems including bone death; liver problems; pancreatitis; skin problems; muscle and joint pain and muscle weakness; headaches; and mental health challenges such as depression and anxiety. Nonetheless, treatment has substantially improved the lives of persons living with HIV despite the negative impact of side effects on some.

Late HIV testing/diagnosis contributes to longer periods of time where HIV may be unknowingly transmitted and is associated with higher rates of morbidity/mortality

During the early stages of infection, there is a higher risk of HIV transmission, as the newly infected person has a higher viral load during this period. Those who are recently infected are more likely to be undiagnosed and may continue to engage in risk behaviours, while those who have knowledge of their infection are more likely to take active measures to prevent transmission to others. Furthermore, early detection and treatment of HIV contributes to improved health outcomes for the individual.