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 PHAC^{Footnote 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:

men who have sex with men (MSM) (45.1%);
heterosexual contact (31.9%); and,
injection drug use (16.3%).

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-years^{Footnote 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}

In the absence of antiretroviral treatment, HIV infection will progress to AIDS, which is defined by the presence of one or more of a list of “AIDS-defining illnesses,” such as certain types of cancers (e.g., lymphoma or cervical cancer), tuberculosis and wasting syndrome. However, advances in treatment have rendered progression to AIDS far less common in Canada with proper adherence to antiretroviral medications.
Despite the advances made in HIV treatment, there is still a significant impact on life expectancy and, although there has been a dramatic decline in AIDS mortality since 1996, deaths from AIDS continue to occur.
Co-morbidities, i.e., the presence of one or more diseases in addition to HIV, can present challenges in treating and managing both the HIV and the co-morbidities. Persons living with HIV who are on antiretroviral medication experience higher rates of certain diseases, including cardiovascular disease, diabetes, bone loss, and certain cancers.
Co-infections with other illnesses with a shared transmission route or increased susceptibility due to lower immune response may also pose health problems for persons living with HIV, including elevated morbidity and mortality. Common co-infections in Canada include tuberculosis and STBBIs such as hepatitis B, hepatitis C and syphilis. The presence of HIV can significantly impair the ability of the immune system to stave off co-infections while the presence of many STBBIs can increase vulnerability to, or the infectiousness of, HIV.
For many, HIV is an episodic disability, which means that periods of good health can be interrupted by unpredictable periods of ill health and disability. Disability includes: physical and mental challenges, such as pain, fatigue, and/or decreased memory; difficulties with day-to-day activities, such as walking or climbing stairs; and, limitations on social participation, such as difficulty working or participating in social activities. Some may have chronic, long-term disabilities, but many HIV-related disabilities come and go, without following a clear pattern of duration or severity. However, new HIV treatments are resulting in considerable improvements in symptom management and quality of life for people living with HIV, whereby periods of disability may be significantly less common for those accessing early treatment.
Mental health can affect vulnerability to HIV infection, and mental health conditions can result from HIV disease, HIV treatment side effects or a combination of both. HIV may be associated with depressive disorders, neurocognitive disorders, psychological problems and post-traumatic stress disorder. Diagnosing mental health disorders in the context of HIV is an ongoing challenge, complicated by the complex biological, psychological, and social factors associated with HIV. Mood disorders, particularly depression, are the most common psychiatric complication associated with HIV disease. Depression is in itself a risk factor for mortality, even for people living with HIV on treatment, and can influence their ability to adhere to treatment.^{Footnote 19}

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.

Footnotes

Footnote 3

Canadian AIDS Society, “HIV Transmission: Factors that Affect Biological Risk” (11 February 2013) at 2, available online [Canadian AIDS Society, “HIV Transmission: Factors”].

Return to footnote 3 referrer

Footnote 4

Public Health Agency of Canada, “Summary: Measuring Canada’s Progress on the 90-90-90 HIV Targets”, by Surveillance and Epidemiology Division Professional Guidelines and Public Health Practice Division Centre for Communicable Diseases and Infection Control (Ottawa: PHAC, 2017) at 3, available online.

Return to footnote 4 referrer

Footnote 5

Public Health Agency of Canada, “HIV in Canada: Surveillance summary tables, 2014-2015” (Ottawa: PHAC, 2014-15), available online.

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Footnote 6

Public Health Agency of Canada, “Summary: Estimates of HIV incidence, prevalence and proportion undiagnosed in Canada, 2014” (Ottawa: PHAC, 2014), available online.

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Footnote 7

Ibid.

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Footnote 8

Jacek Skarbinski et al, “Human Immunodeficiency Virus Transmission at Each Step of the Care Continuum in the United States” (2015) 175:4 JAMA Intern Med 588 at 590, available online.

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Footnote 9

Bluma G Brenner et al, “High rates of forward transmission events after acute/early HIV-1 infection” (2007) 195:7 J Infect Dis 951 at 957.

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Footnote 10

Statistics Canada, Table 102-0521 Deaths, by cause, Chapter I: Certain infectious and parasitic diseases (A00 to B99), age group and sex, Canada, CANSIM, available online.

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Footnote 11

Public Health Agency of Canada, “HIV and AIDS in Canada: Surveillance Report to December 31, 2014” (Ottawa: PHAC, 2014) at 95, available online.

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Footnote 12

Transmission risks are frequently reported in studies as number of transmissions per number of person-years. A person-year is the equivalent of following one person for one year. Risk per 100 person-years represents the number of transmissions one would expect to see if they followed 100 couples for 1 year each, or 10 couples for 10 years each, for example.

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Footnote 13

CC Cheung et al, “Reductions in all-cause and cause-speciﬁc mortality among HIV-infected individuals receiving antiretroviral therapy in British Columbia, Canada: 2001–2012” (2016) 17 HIV Medicine 694 at 694 [CC Cheung et al, “Reductions”].

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Footnote 14

British Columbia Centre for Excellence in HIV/AIDS, “HIV Monitoring Quarterly Report for British Columbia” (2015) Third Quarter at 14, online.

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Footnote 15

Saskatchewan, Ministry of Health Population Health Branch. HIV Prevention and Control Program Report for 2015 (2015).

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Footnote 16

Ontario HIV Epidemiologic Monitoring Unit, Number of HIV tests and positivity rate by year of test, Ontario, 1996 to 2013, available online.

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Footnote 17

Institut National de Santé Publique du Québec, Programme de surveillance de l’infection

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Footnote 18

Public Health Agency of Canada, “Population-Specific HIV/AIDS Status Report: People Living with HIV/AIDS” (Ottawa: PHAC, 2013), available online.

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Footnote 19

See also Judith G. Rabkin, “HIV and depression: 2008 review and update” (2008) 5:4 Behavioral Aspects of HIV Management 163; Maria Giulia Nanni et al., “Depression in HIV Infected Patients: a Review” (2015) 17 Complex Medical-Psychiatric Issues 530; Stylianos Arseniou, Aikaterini & Maria Samakouri, “HIV infection and depression” (2013) 68:2 Psychiatry and Clinical Neurosciences 96; Ellen M. Tedaldi, Nancy L Minniti & Tracy Fischer, “HIV-Associated Neurocognitive Disorders: The Relationship of HIV Infection with Physical and Social Comorbidities” (2015) 2015 BioMed Research International; David S. Bennett et al., “Shame among people living with HIV: a literature review” (2015) 28:1 AIDS Care 87; Keira Lowther et al., “Experience of persistent psychological symptoms and perceived stigma among people with HIV on antiretroviral therapy (ART): A systematic review” (2014) 51:8 International Journal of Nursing Studies 1171; Jeffrey S Gonzalez et al,, “Depression and HIV/AIDS Treatment Non-adherence: A Review and Meta-analysis” (2013) 58:2 J Acquir Immune Defic Syndr 10; P Bravo et al., “Tough decisions faced by people living with HIV: a literature review of psychosocial problems” (2010) 12:2 AIDS Rev 76; Roger C McIntosch & Monica Rosselli, “Stress and Coping in Women Living with HIV: A Meta-Analytic Review” (2012) 16:8 AIDS and Behaviour 2144; Alexandra Sawyer, Susan Ayers & Andy P Field, “Posttraumatic growth and adjustment among individuals with cancer or HIV/AIDS: A meta-analysis (2010) 30:4 Clinical Psychology Review 436; Ingrid T Katz et al., “Impact of HIV-related stigma on treatment adherence: systematic review and meta-synthesis” (2013) 16:2 Journal of the International AIDS Society 1.

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Footnote 20

Canadian AIDS Society, “HIV Transmission: Factors”, supra note 3 at 22.

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Footnote 21

CATIE, “HIV in Canada: A primer for service providers” (September 2017) at 68, available online.

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Footnote 22

Sachin Jain & Kenneth H Mayer, “Practical guidance for nonoccupational postexposure prophylaxis to prevent HIV infection: an editorial review” (2014) 28:11 AIDS 1545 at 1545.

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Date modified:: 2023-02-02

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