“Using a condom is not enough. We believe you must disclose your status to have truly informed consent.”1
— Rita Shahin, associate medical officer of health, Toronto Public Health
The law states that if there is a “significant risk” that you will pass on HIV to your partner, you have a legal duty to tell your partner that you have HIV before you engage in those activities that might be high risk for HIV transmission.
In Canada, HIV-positive people risk being charged criminally by not saying anything – especially with sex that is unprotected and considered high risk. Unfortunately, while court decisions have used the term “significant risk,” there is no definition to explain exactly what it means.
Cleaning needles, syringes or mixing equipment with bleach does not remove the risk of exposure for a drug-injecting partner. Non-disclosure of HIV-positive status before sharing any of these items could lead to criminal charges.
A woman has never been charged for breastfeeding a child in this country. The Canadian AIDS Society does advise HIV-positive mothers not to breastfeed. And, in Ontario, the Child and Family Services Act allows the Children’s Aid Society to intervene if it believes a child is “in need of protection.”
What is the law?
No criminal legislation in Canada specifically applies to the act of knowingly transmitting or attempting to transmit HIV or other sexually transmitted infections. As a result, the offenses used to charge someone for the potential or actual transmission of HIV have included:
- criminal negligence causing bodily harm
- aggravated assault
- aggravated sexual assault
- administering a noxious substance
- being a common nuisance
It is unclear what the exact circumstances are for a court to reach the decision that a duty to disclose exists.3 The HIV & AIDS Legal Clinic (Ontario) – known as HALCO – provides free legal advice to people living with HIV in Ontario.
HALCO’s phone number is 416-340-7790.
People living with HIV, communities affected by HIV, legal, public health and scientific experts, health care providers, and AIDS service organizations – many individuals representing all of the above are asking for change. They want Ontario’s Attorney General to develop guidelines for criminal prosecutors in cases dealing with HIV status and non-disclosure.
The reason? Right now, the law is getting in the way of broader scientific, medical, public health, and community efforts to prevent the spread of HIV and to provide care, treatment and support to people living with HIV.
Good guidelines would mean that a decision to investigate and prosecute a case of non-disclosure would be based on a complete and accurate understanding of current medical and scientific research about HIV, and take into account the social contexts of living with HIV.
Such guidelines would make sure that HIV-related criminal complaints would be dealt with in a fair and non-discriminatory way.
1HIV disclosure can be dangerous, Krishna Rau, Xtra, November 28, 2008
2HIV Antibody Testing: Guidelines for Pre- and Post- Test Counselling in Anonymous Testing, Ontario Ministry of Health, 1995
3Disclosure of HIV-Positive Status To Sexual and Drug-Injecting Partners, Ontario Advisory Committee on HIV/AIDS, January 2003