HIV Disclosure and the Law

A Resource Kit for Service Providers

With regularity, people living with HIV (PHAs) continue to be criminally prosecuted and convicted for not disclosing their HIV-positive status to sexual partners. As of April 2012, more than 130 people in Canada had been charged for not disclosing their status. Until the law is changed, criminalization is a reality that the community must live with and respond to. This Resource Kit is intended to provide both PHAs and service providers with useful information and tools to make informed and empowered choices about how to respond to criminalization.

This Resource Kit is produced with the partnership of AIDS Coalition of Nova Scotia, Canadian AIDS Society (CAS), Coalition des organismes communautaires québécois de lutte contre le SIDA (COCQ-SIDA), HIV & AIDS Legal Clinic Ontario (HALCO) and Positive Living B.C.

Table of contents

• Introduction
• HIV disclosure to sexual partners
• Criminal law and HIV non-disclosure
• Counselling in the context of the criminalization of HIV non-disclosure
• Client confidentiality and record-keeping
• Civil liability issues for PHAs and service providers
• Responding to the media
• Public health laws
• For more information and legal advice

Introduction

• About this Resource Kit

  Back to top

HIV disclosure to sexual partners

• HIV disclosure to sexual partners: an overview

Additional resource

• HALCO, HIV disclosure: a legal guide for gay men in Ontario, 2008 (see p. 8) [Note that the section on the criminal law does not reflect the 2012 Supreme Court of Canada decisions.]

Back to top

Criminal law and HIV non-disclosure

• Understanding the criminal law in Canada
• HIV non-disclosure: what’s the law in Canada?
• Do service providers have a legal obligation under the criminal law to report a client’s potentially criminal behaviour?
• HIV-positive youth and the criminal law
• What should PHAs do if they are concerned that they may be under investigation for allegedly failing to disclose their HIV-positive status?
• For more information and legal advice
• Ensuring defence lawyers have all the necessary information on the criminal law and HIV

Additional resources

Understanding the evolution of the Canadian criminal law on HIV non-disclosure:

• Canadian HIV/AIDS Legal Network, Analysis of the 2012 Supreme Court of Canada decisions on HIV non-disclosure: R. v. Mabior and R. v. D.C., 2012.
• The impact of condom use and viral load on criminal liability prior to the 2012 Supreme Court of Canada decisions
  • Canadian HIV/AIDS Legal Network, HIV non-disclosure and Canadian criminal law: antiretroviral treatment and viral load, 2011.
  • Canadian HIV/AIDS Legal Network, HIV non-disclosure and Canadian criminal law: condom use, 2011

Risks of HIV transmission:

• D. McLay et al., "Scientific research on the risk of the sexual transmission of HIV infection and on HIV as a chronic manageable infection" (updated December 2011). Originally published in E. Mykhalovskiy, G. Betteridge, and D. McLay, HIV Non-Disclosure and the Criminal Law: Establishing Policy Options for Ontario (Section 3). August 2010. Funded by the Ontario HIV Treatment Network.

Your rights when contacted, detained or arrested by the police:

• B.C. Civil Liberties Association, The Arrest Handbook: A Guide to Your Rights, 2008.
• Canadian Civil Liberties Association, Know your rights: A Citizen’s Guide to Rights When Dealing With Police.

Resource kit for defence lawyers and advocates:

• Canadian HIV/AIDS Legal Network, AIDES, Groupe sida Genève and Global
  Network of People Living with HIV (GNP+), Responding to the Criminalization of
  HIV Transmission or Exposure: Resources for lawyers and advocates.

Other:

• Canadian HIV/AIDS Legal Network, "Women and the Criminalization of HIV Non-Disclosure," one of a series of four info sheets on Women and HIV, 2012.
• CATIE, When is a person legally required to tell other people about his or her hepatitis C infection?, 2011.
• UNAIDS, Policy brief: criminalization of HIV transmission, August 2008.

Back to top

Counselling in the context of the criminalization of HIV non-disclosure

• Legal information vs. legal advice
• Legal and ethical counselling standards checklist
• Informing PHAs about the criminal law and HIV non-disclosure

Additional resource

• B.C. Civil Liberties Association, HIV Testing Handbook: A Guide to Your Rights, 2012.

Back to top

Client confidentiality and record-keeping

• The duty of confidentiality and possible limits
• Reporting obligations and potential interventions under public health laws
• Preventing harm to others
• Disclosing to prevent harm — a decision-making tree
• Protecting a minor from harm
• What a search warrant looks like and what a subpoena looks like (forms 5 and 16, from Canada's Criminal Code, “Forms”)
• Responding to a search warrant
• Responding to a subpoena
• Record-keeping

Additional resources

• B.C. Civil Liberties Association, HIV Testing Handbook: A Guide to Your Rights, 2012.
• Smith v. Jones, [1999] 1 SCR 455.
• Community Legal Education of Ontario (CLEO), HIV testing in Ontario, August 2009.

Back to top

Civil liability issues for PHAs and service providers

• Civili liability
• Civil liability of people living with HIV
• Civil liability of service providers for breach of confidentiality

Back to top

Responding to the media

• How to make your voice heard on the criminalization issue
• What to do when you receive an unsolicited media request

Back to top

Public health laws

• Provincial websites: law and regulations

Additional resources:

• Canadian HIV/AIDS Legal Network and Interagency Coalition on AIDS and Development, Addressing HIV Risk Behaviours: A Role for Public Health Legislation and Policy, 2010.
• BC Centre for Disease Control, Guidelines for Medical Health Officers: Approach to people with HIV/AIDS who may pose a risk of harm to others, December 2010.

Back to top

For more information and legal advice

HIV and the law in Canada

 

• Canadian HIV/AIDS Legal Network: www.aidslaw.ca  

  Tel.: +1 416 595-1666
  Fax: +1 416 595-0094
  E-mail: info@aidslaw.ca

HIV and the law in Ontario

• HIV & AIDS Legal Clinic Ontario (HALCO): www.halco.org
  Tel.: +1 416 340-7790 or +1 888 705-8889
  Fax: +1 416 340-7248
  E-mail: talklaw@halco.org

HIV and the law in Quebec

• Coalition communautaire des organismes québécois de la lutte contre le sida (COCQ-SIDA) — Clinique d'information juridique VIH info droits: www.cocqsida.com
  Tel: +1 514 844-2477 (ext. 34)
  Toll-free (when calling from outside Montréal): +1 866 535-0481 (ext. 34)
  E-mail : vih-infodroits@cocqsida.com

To find a lawyer

• Legal aid services and lawyer referrals by province (opens with Microsoft Excel)
• If your client has been charged for HIV non-disclosure, contact the Canadian HIV/AIDS Legal Network for referral at
  Tel.: +1 416 595-1666
  Fax: +1 416 595-0094
  E-mail: info@aidslaw.ca

Prisoner support

• Prisoners’ HIV/AIDS Support Action Network (PASAN): www.pasan.org
  Toll-free: +1 866 224-9978
  Tel.: +1 416 920-9567
  Fax: +1 416 920-4314

  Back to top