Managing your health: a guide for people living with HIV

21. Legal issues

This chapter is designed to answer some of your questions about HIV and the law. It will provide you with legal information related to HIV such as disclosure, privacy and confidentiality and discrimination. It offers more general information about lawyers, legal aid and practical issues such as how to prepare a will.

Legal information and legal advice

The law can change at any time.  So speak with a lawyer to make sure you get up-to-date legal information and legal advice.

This chapter is designed to answer some of your questions about the law.  It will provide you with general legal information. It is not legal advice. It is not a substitute for getting legal advice. The difference between legal information and legal advice is important.

Legal information can help you understand the law and legal options, but it is general. This chapter provides an overview of some of the general principles of the law. The information may not apply to your specific situation. Your circumstances may be complex. And the law in your province or territory may be different from the law in other provinces and territories, or the general information in this chapter.

Legal advice is specifically about your situation and can help you to decide what to do.
If you want legal advice you should talk to a lawyer licensed to practice law in your province or territory. We have included at the end of this chapter a list of organizations you can contact to ask for legal advice.

The law can change at any time.  So speak with a lawyer to make sure you get up-to-date legal information and legal advice.

HIV transmission and the criminal law

In Canada, the Criminal Code sets out criminal offences. The Criminal Code applies across the country, in every province and territory. People with HIV have been charged and convicted of a number of crimes—including aggravated assault, aggravated sexual assault and attempted murder—for not disclosing their HIV status to a sexual partner before having sex. What’s more, an HIV-positive person can be charged and convicted of a crime even if the other person does not become infected with HIV.

The law about HIV, sex and disclosure is complex and we cannot provide answers to all of the questions you may have. Also, the law can change at any time. Speak with a lawyer familiar with HIV-related issues to make sure you get up-to-date legal information and advice about your particular circumstances.  

HIV non-disclosure and sex

According to two Supreme Court of Canada decisions in 2012, an HIV-positive person has a legal duty to disclose his or her HIV status to a sexual partner before having any sex that poses a “realistic possibility” of HIV transmission. What does this mean?

An HIV-positive person has a legal duty to disclose his or her HIV status to a sexual partner before having any sex that poses a “realistic possibility” of HIV transmission. This includes vaginal, frontal or anal sex without a condom, regardless of viral load, and vaginal, frontal or anal sex when viral load is higher than “low,” even when a condom is used.
  • A person living with HIV does not have to disclose his or her HIV status before having vaginal sex if a condom is used and the HIV-positive person has a “low” HIV viral load at the time of sex. In one of the 2012 decisions, the Supreme Court of Canada found that an HIV viral load of 1,500 copies or less of the virus per millilitre of blood counted as “low”—this includes anyone with an undetectable viral load. Whether 1,500 will be the standard for defining “low” is not yet clear, so make sure you have the most current information.
  • A person with HIV does have a legal duty to disclose his or her HIV status before having:
    • vaginal, frontal[1] or anal sex without a condom, regardless of viral load; or
    • vaginal, frontal or anal sex when viral load is higher than “low,” even when a condom is used.

Note that these legal definitions are different from the language used to talk about the risk of transmission with different kinds of sex. Sex acts that carry a “realistic possibility” of transmission from a legal perspective may have a low risk of transmission.

The Court’s decisions left unanswered some important questions about HIV disclosure and sex:

  • We cannot say for certain that a person who uses a condom and has a “low” viral load does not have a legal duty to disclose his or her HIV status before anal sex or frontal sex because the Supreme Court did not specifically address these issues.
  • It is not clear how the law applies to the different kinds of oral sex (with or without a condom or other latex barrier).
  • You might have a duty to disclose when you discover that a condom has broken during sex. But be aware that disclosure might increase the risk that your sex partner will lodge a complaint against you with the police. You might also want to consider factors beyond the law in deciding whether to disclose to your partner in this situation. Disclosure might help to reduce his or her risk of HIV infection. If you disclose your HIV status, your partner has information that may help him or her decide whether to seek PEP (post-exposure prophylaxis) with anti-HIV drugs. However, disclosure might also cause your sex partner to react badly. 
  • A person may have a legal duty to disclose his or her HIV-positive status before having sex with a person he or she knew was already HIV positive. However, we don’t know of any cases where an HIV-positive person has been charged for not disclosing to another person living with HIV. 
  • A person who knows that he or she likely has HIV (but has not received an HIV-positive test result) may have a legal duty to tell sexual partners about this risk before having sex that poses a realistic possibility of transmission. We don’t know of any cases where a person without an HIV-positive diagnosis was convicted of not disclosing the potential risk of HIV infection to his or her sex partner.    

Pregnancy, HIV exposure and criminal law

Criminal charges cannot be laid against someone who is pregnant for failing to take steps to prevent the transmission of HIV during pregnancy or labour (for example, refusing to take anti-HIV drugs during pregnancy). However, following the birth, a parent who risks transmitting HIV to an infant by not telling the healthcare provider of their HIV status, refusing medications for the child or breastfeeding/chestfeeding[2] could face criminal charges or child protection proceedings.

HIV non-disclosure and sharing drug use equipment

As far as we know, no Canadian court has yet decided whether an HIV-positive person who uses recreational or street drugs has a legal duty to disclose his or her HIV status to someone with whom he or she is sharing drug-use equipment (for example syringes, needles, crack pipes, etc.). Sharing certain drug-use equipment (such as needles and syringes for injecting) is a high-risk activity for transmitting HIV. Therefore, it is safest to assume that police and courts would consider that sharing equipment poses a realistic possibility of HIV transmission, meaning a person would have a legal duty to disclose his or her HIV-positive status before sharing.

[1] Frontal sex is what is commonly referred to as vaginal sex. This term is sometimes used by trans men or people on the trans masculine spectrum who feel more comfortable with this language.

[2] Chestfeeding refers to nursing an infant using one’s chest. It is a term sometimes used by people on the trans masculine spectrum who feel more comfortable with this language.

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Privacy and confidentiality

The duty of confidentiality is placed on healthcare professionals to keep your personal health information confidential, except in exceptional circumstances and under specific conditions.

The right to privacy is a fundamental right recognized under Canadian law. With rare exceptions, people with HIV have a right to:

  • decide when, how, to what extent and to whom they will disclose their personal information;
  • control the use and disclosure of their personal health information, and who has access to that information;
  • know how their personal information is going to be used and safeguarded.

Federal, provincial and territorial governments are required to respect your right to privacy by not interfering with it. Those governments are also required to take steps to ensure that other people and organizations do not breach your right to privacy.

The duty of confidentiality is placed on healthcare professionals to keep your personal health information confidential, except in exceptional circumstances and under specific conditions. Healthcare professionals include doctors, nurses, psychologists, dentists and other people that work in healthcare.

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Some limits on the right to privacy

It is important to realize that the rights to privacy and confidentiality are not absolute. Competing social or community values and interests may trump your right to privacy, and the duty of confidentiality owed to you. Here are some of the situations where that may be the case.

Public health law: Under provincial and territorial laws, public health authorities and certain healthcare professionals like doctors and nurses are given legal powers to prevent the spread of infectious diseases. For example, when someone tests positive for HIV, another sexually transmitted disease, or a disease like tuberculosis, the doctor must report the person to provincial public health authorities. Another example is partner notification (also known as contact tracing) that happens when someone tests positive for a sexually transmitted infection. Public health authorities have the power to contact a person’s past sexual partners to tell them to seek medical advice. But public health authorities should not use the name of the infected person.

To prevent harm to someone: Courts have decided that in specific, narrowly defined circumstances, the duty of confidentiality owed to you can be broken to protect someone from being harmed by you. Here are the circumstances:

  • there is a clear risk of harm to a known person or group of persons;
  • the person or group will suffer serious injury or death;
  • the harm is about to happen.

Legal investigations and court proceedings: Police investigating a possible crime and courts hearing legal cases can force your personal health information to be disclosed without your consent. (But the police and courts cannot force you to answer questions or to testify in a criminal case against you, since people have a legal right against self-incrimination.) Laws also give administrative investigators, decision makers and tribunals the power to force the disclosure of information, including personal health information.

Exceptions written into laws that protect the privacy of personal information: These laws include sections that allow government officials and staff in institutions like hospitals to disclose your health information without your consent. This could mean contacting a relative or friend if you are injured or ill, contacting the police as part of the investigation of an offence, or disclosing your health information to find out if you are eligible for health or health-related benefits.

Forced-testing laws: For more information, see the section “Forced-testing Laws.”

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What you can do if your privacy is breached

If your right to privacy has been violated or your confidential personal health information has been disclosed without your consent, you may be able to file a complaint with a government agency responsible for hearing privacy complaints.

If your right to privacy has been violated or your confidential personal health information has been disclosed without your consent, you may be able to file a complaint with a government agency responsible for hearing privacy complaints. This type of agency is often called a privacy commissioner, or information and privacy commissioner.

You can also file a lawsuit in civil court against an organization or person who breached your privacy. This area of law is still developing. In some provinces, people have had some success bringing these breach of privacy cases to court. However, even in successful cases, the courts have tended to give people only small amounts of money to compensate them.

If a healthcare professional has breached your confidentiality, you can file a complaint with the organization that licenses and regulates that type of professional. Healthcare professionals are licensed and regulated in the province or territory where they work. For example, if you are in Regina and want to file a complaint against a dentist, you would contact the College of Dental Surgeons of Saskatchewan.

If you live in Quebec, your privacy is also protected in the Quebec Charter of Human Rights and Freedoms. That means that the Commission des droits de la personne et des droits de la jeunesse has the power to investigate a breach of your privacy and to work toward the settlement of your complaint.

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How to fight discrimination

Discrimination can take many forms (spoken or written words, behaviours, official or unofficial policies, and laws). The motive or intent is irrelevant in the eyes of the law—it can be discrimination even if the person does not mean to discriminate against you. Discrimination is unjust and takes away people’s dignity. Laws have been put in place to try and prevent people from being treated unfairly. These laws also give people a process to fight for their rights when they have been treated unfairly and illegally.

HIV and AIDS are both considered a disability under the law in Canada, so people living with HIV are protected by these laws because they have HIV.

As a person living with HIV, you may experience discrimination because of your HIV. HIV and AIDS are both considered a disability under the law in Canada, so people living with HIV are protected by these laws because they have HIV. Or you may face discrimination because you are gay or are assumed to be gay, because you are a person of colour, or because you have an addiction to drugs. Or you may face discrimination based on one or more of the other “protected grounds” of discrimination: ancestry, place of origin, ethnic origin, colour, citizenship, religion, creed, sex, sexual orientation, age, marital status, family status, disability, receipt of public assistance and conviction for which a pardon has been granted.

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Human rights laws and complaints

The Canadian Human Rights Act and the provincial and territorial human rights laws have been put in place to protect people from discrimination on the protected grounds listed above. These laws also protect people when they are treated unfairly because another person wrongly believes they have HIV or the other person associates them with people living with HIV.

The Canadian Human Rights Act protects people against discrimination in:

  • employment by the federal government or a federally controlled industry (including the military);
  • services offered by the federal government or federally controlled industry (e.g., Employment Insurance, Canada Pension Plan, banks, airlines, railways, telecommunications and the federal civil service);
  • housing provided by the federal government.

The Canadian Human Rights Commission accepts complaints from people who say they have faced discrimination in any of these federal areas.

If your complaint is not about one of these federal areas, you can file your complaint with your provincial or territorial human rights commission. (If you live in British Columbia or Ontario, then you should file your complaint directly with the human rights tribunal in that province.) The human rights law of your province or territory forbids certain forms of discrimination by private businesses and private employers, provincial and municipal governments, and many other organizations (like unions, schools, colleges and universities, and voluntary organizations and clubs). Most cases of discrimination fall under provincial and territorial laws.

If you want to file a complaint, it is important not to let too much time pass. The time limit for filing a complaint varies among the different provinces and territories. For example, the Canadian Human Rights Commission can decide not to deal with your complaint if it is filed more than a year after the alleged discrimination occurred. Under Saskatchewan law, the time limit to file a complaint is two years, while in Manitoba it is only six months. Some commissions have the power to extend the time limit in exceptional circumstances.

It is illegal for anyone to try to get even with someone who files a complaint, gives evidence in a complaint or otherwise helps someone with a complaint.

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More information about fighting discrimination at work

In addition to human rights laws, there are other ways of fighting discrimination at work. The federal government has a written policy on HIV in the workplace, which covers all federal employees, including people in the armed services and RCMP. Provinces, municipalities, unions, professional organizations and private companies may have similar policies. Often workplace policies give people a right to make a complaint, which will be handled inside the organization. If you try to resolve discrimination through such an internal complaint process, do not forget about the time limits for filing a human rights complaint. If your internal complaint is not successful or not taken seriously, you don’t want to miss out on your chance to file a complaint with a human rights commission or tribunal.

You can also launch a lawsuit in court. But a lawsuit probably won’t get you your job back and is usually a long and expensive process. And while you can represent yourself in a lawsuit, the law is complex and the legal system is difficult to figure out. So you will probably want to seriously consider hiring a lawyer to represent you.

If you work in a unionized workplace, your collective agreement (in other words, the contract in your workplace) probably protects you from discrimination. Unionized workplaces have special ways of settling workplace disputes and complaints. If you have faced discrimination in a unionized workplace, you can probably file a grievance. Speak with your union representative to get more information about your collective agreement, discrimination and filing a grievance.

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Forced-testing laws

Several Canadian provinces have passed laws that allow a person to be tested for HIV (and certain other blood-borne infections) against his or her will and the test results disclosed to someone else. These laws can be used by people—like police officers, prison guards, firefighters and paramedics—who work in jobs where they may be exposed to another person’s blood or other body fluids. People who help out in an accident—sometimes called good Samaritans—can also use these laws.

Here is a simplified example of how these laws work. If a person’s blood or other body fluid gets on a police officer during an arrest, the police officer can ask the person to get tested for infections (or to tell the police officer the results of tests he or she has had). If the person refuses to get tested (or refuses to disclose his or her health information), the police officer can apply to a public health official or judge to have the person’s blood drawn and tested for certain blood-borne infections. The police officer will be told the results of the tests. A person can fight an order to have his or her blood tested, but will probably need a lawyer to help fight the order.

At the end of 2008, Ontario, Alberta, Nova Scotia and Saskatchewan had these types of forced-testing laws. Manitoba passed a law in 2008, but it was not yet in force at the end of 2008. There is the strong likelihood of such laws being passed in other provinces and territories.

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Lawyers and legal aid

The role of a lawyer is to advise you of your legal rights, tell you what the law says, and help you understand how legal systems and procedures work.

Your lawyer acts as your adviser and advocate. The role of a lawyer is to advise you of your legal rights, tell you what the law says, and help you understand how legal systems and procedures work. A lawyer can also represent you in bringing a complaint, a lawsuit, when you have been charged with a criminal offence, in negotiations, in court, or in front of other decision-making groups. If you hire a lawyer, he or she can only take instructions from you or someone else you designate for that purpose.

There are many reasons why you might want to see a lawyer. Maybe you or a spouse/partner needs legal assistance in immigrating to Canada. You may have been charged with a criminal or provincial offence and require representation. Perhaps you have experienced discrimination in your workplace, at school or from a public or private institution. Perhaps you are having difficulty in dealing with an employer, a landlord or with an insurance company. You may also be experiencing issues relating to marriage, family and child custody and access issues. You may also wish to see a lawyer to get help in completing a will, a power of attorney or a living will or to receive advice in estate planning.

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Lawyers’ fees and legal costs

Lawyers often charge clients on an hourly basis and can be expensive. Some lawyers charge a lower hourly fee for people who do not have a lot of money. In this case, the fee is based on how much money you make or how much money you have. This is called a sliding scale. Some types of legal work are charged on a flat-rate basis. A lawyer may take your case pro bono, where you do not have to pay the lawyer’s fees, but you may still have to pay for other costs in your case.  But this does not happen often. Some provincial and territorial law societies have set up organizations to encourage and promote lawyers taking on more pro bono work. They act as a conduit between the lawyer and prospective pro bono clients.

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Each province and territory offers a program of free (or subsidized) legal services to people who can’t afford lawyers. Usually this legal service is called legal aid.

Each province and territory offers a program of free (or subsidized) legal services to people who can’t afford lawyers. Usually this legal service is called legal aid. Legal aid services are often provided by lawyers who work alone or in law firms.  In some provinces, legal aid services are also provided by legal aid offices or clinics. The government runs some legal clinics or offices, others are run like community organizations, and law schools often have legal clinics. Legal aid clinics and offices are staffed by lawyers and people like paralegals and law students who assist the lawyers.

Whether you are eligible for legal aid will depend upon your case and your financial situation. Depending on how much money or other financial resources you have, you may be asked to pay for some of the costs of your case. To find out what types of cases are covered in your province or territory, you should contact a legal aid office. To find a legal aid lawyer or legal aid clinic in your area, contact the provincial or territorial law society, the local legal aid office, a law school or even your healthcare professional. See Resources to find out how to contact these organizations.

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Questions to ask your lawyer

These are some questions to ask a lawyer before you hire him or her so you know where you stand.

  • How much money do you charge per hour?
  • Do you offer a sliding scale for fees?
  • Can you estimate how much time my case will need?
  • Can you charge me for my case on a flat-rate basis and if so how much will it cost?
  • Do you take pro bono cases? If so, what things will I have to pay for and how much will they cost?
  • Do you accept legal aid certificates?
  • Do you work with licensed paralegals, student lawyers, articling students or junior lawyers? (They can work on your case at a cheaper rate and keep your total costs down.)
  • Are there any expenses I will have to pay for up front (such as faxes, letters, court filing fees, etc.)?
  • Do you have experience in my type of case?
  • What are the strong and weak points of my case?
  • If I win my case, will the court award me money to cover some or all of the costs of the case?
  • If I lose my case, will the court make me pay for the cost of the other side’s case?

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Planning ahead

Planning in advance for illness and death can help you keep control over your healthcare, your money and your life, and help ensure that the people you leave behind are better taken care of.

An HIV diagnosis is not the death sentence it used to be. With the advances that have been made in HIV treatment and care, people can live with HIV for years in good health. Many experts even predict that, with proper treatment and care, newly diagnosed people with HIV can live out something close to a full, natural lifespan.

However, death is one of the few certainties in life, and one that all of us will eventually face. Planning in advance for illness and death can help you keep control over your healthcare, your money and your life, and help ensure that the people you leave behind are better taken care of.

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Powers of attorney for personal care and living wills

A medical power of attorney (sometimes called a power of attorney for medical/personal care) or a living will (also known as an advance directive or medical directive) is a document containing your wishes about your future healthcare and/or personal care. Your instructions can be specific or general. All provinces have passed laws that support medical powers of attorney and living wills.

In addition to your wishes about your medical care, your medical power of attorney/living will should also contain the name of the person you designate to ensure your wishes are followed. This person is called a substitute decision maker (sometimes referred to as a proxy). If you find that making decisions for a possible future illness is too difficult, then you may only want to name your substitute decision maker. If you have not named a substitute decision maker in a medical power of attorney or a living will, the doctor will usually seek consent from your next of kin—that is, your closest relative—a parent, a legal (possibly common-law) spouse, a grown child or a sibling.

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Powers of attorney for property

A power of attorney for property is a document you sign that gives a person of your choice (your “attorney”) the power to look after your financial affairs. Appointing an attorney means that there is someone who can look after your financial affairs if you are not able to do so. This power can be time limited, or it can continue indefinitely (this is called an “enduring” or “continuing” power of attorney). A power of attorney allows your attorney to manage your financial affairs on your behalf if you are unable to do so. This could include paying bills, managing bank accounts, paying or collecting rent, and buying or selling property.

In order for your power of attorney to be legal, it has to be written in a specific way. A lawyer or notary can help you prepare this document. Or, if you wish, you can buy a form from a stationery store or download a form from the Internet and write up the power of attorney yourself.

As long as you are mentally competent, you can cancel the power of attorney at any time. If it has never been used, you can simply destroy it. Otherwise, an enduring power of attorney/continuing power of attorney for property will come to an end if you cancel it, or in other circumstances like bankruptcy, death or where a court appoints someone to manage your affairs.

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Wills

A will is a document that says what you want done with your assets (personal property and money owed to you) when you die. You can also include directions for your funeral or burial in your will. If you are a parent, you can name a legal guardian for your minor children and decide whether or not that person or persons will have access to your children’s inheritance. You can also set up a trust fund for your children, so that they have money to take care of things like their education. Finally, you can also name an executor—the person who will be legally responsible for carrying out the instructions in your will.

You can write your own will, or you can hire a lawyer or notary to write it for you.

If you decide to write your own will, you can fill in a standard will form. (You can find these at many office supply stores.) You can also make what is called a holograph will, which must be entirely in your own handwriting. (It can’t have any mechanical printing or typing anywhere on it.) You will state that this is your “last will and testament.” You must distribute all of your assets. The will must have a date on it and end with your signature. Holograph wills are not recognized as legal wills in every province or territory.

If you die without a valid will you are said to have died intestate. If this happens, everything that you own will be distributed amongst your nearest relatives, according to a government system written in provincial and territorial laws. If no relatives are known or found, your assets will go to the government.

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Suicide and assisted suicide

It is illegal in Canada for anyone, including a doctor, to counsel you to commit suicide or assist you with committing suicide. However, it is not illegal for you to do it yourself.

Suicide means purposely ending your life. Assisted suicide is suicide committed with help from another person or group of people. It is illegal in Canada for anyone, including a doctor, to counsel you to commit suicide or assist you with committing suicide. However, it is not illegal for you to do it yourself. Furthermore, in Canada, a mentally competent patient has the legal right to refuse treatment and a valid refusal obligates a doctor to forgo treatment, even if honouring the refusal will result in death.

Suicide can affect your life insurance policy. Depending on the policy and how long you have had it, if you commit suicide, the benefit may be decreased or not be paid out at all.

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Resources

The Canadian HIV/AIDS Legal Network – Comprehensive legal and human rights information related to HIV

HIV disclosure: a legal guide for gay men – Booklet on HIV and the law for people living with HIV

HIV & AIDS Legal Clinic (Ontario) – Information and Advice about HIV and the Law in Ontario

Criminal Law and HIV: Info sheet series – Series of five information sheets from the The Canadian HIV/AIDS Legal Network

Web sites for further information on legal issues:

Most of these and many other relevant resources can be accessed through the CATIE Ordering Centre or by calling CATIE at 1-800-263-1638.

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About the author

Paul HigginsPaul Higgins was called to the Ontario Bar in 1999 and joined Jordan Battista LLP in March 2007. Paul has extensive experience in the areas of criminal, family and personal injury law and his areas of practice include real estate, wills and estate planning.

Paul has practiced law in Weyburn, Saskatchewan and Edmonton, Alberta. During his time at law school, Paul maintained a summer job as the fundraising coordinator for AIDS New Brunswick.

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