4 min

HIV non-disclosure and the law in Canada

Plus: How to look after yourself

Disclosing HIV status requires a high level of communication skills, and a lot of young people are afraid to get support, says Andrea Poncia, coordinator of the HIV/AIDS prevention and education program at YSB. Credit: Neil McKinnon photo

An Ottawa gay man stands charged with multiple counts of aggravated sexual assault for not telling his partners his HIV status. Xtra looks at some of the key aspects of non-disclosure, the law and how to look after yourself.


As an HIV-prevention researcher, Barry Adam has been conducting a three-pronged study — using interviews, broad-based surveys and cohort studies — on the impact of the use of criminal law on people living with HIV.

In the first part of the study, Adam, a professor at the University of Windsor, interviewed 122 HIV-positive people living in the Toronto area.

The participants were broadly representative of the prevalence of the epidemic, with gay men representing 50 percent.

THE LAW: Duty to disclose

A person has a legal duty to disclose his or her HIV-positive status to sexual partners before having sex that poses a “significant risk” of HIV transmission — including anal or vaginal sex without a condom. It is unclear what other activities are seen as being a “significant risk,” although a recent case in Hamilton suggests that giving head doesn’t cut it.

There are no specific HIV-related crimes under Canadian law. Rather, a combination of police and crown attorneys have applied a variety of existing laws — from simple assault to murder — to HIV-positive people for not disclosing their health status. This type of prosecution has been deemed acceptable twice at the Supreme Court of Canada, the first time in 1998.

Criminal charges have recently been laid for other sexually transmitted infections, including herpes.

The interviews focused on the impact criminalization of HIV has had on the participants’ personal lives. The initial finding showed there is a great diversity of opinions amongst the participants.

“The first thing that can be said [is] that HIV-positive people are not united on a single issue themselves on this issue,” says Adam. “But I think the majority draw a line on criminalization at the intent to infect.”

Adam did find, however, that the majority of research participants were anxious about the direction the courts were headed. The first HIV-transmission case went to the Supreme Court of Canada in 1998.

“The burden of proof has been shifted so that [people with HIV/AIDS] seem to be considered guilty until proven innocent and [they feel] that it has given a tool to potentially disgruntled partners to wield over their heads in an unfair manner,” says Adam.

Fear of being prosecuted is the punitive effect and a double-edged sword — with people relying on disclosure as a method of stopping the virus and therefore takingthe emphasis off safer-sex practices, says Adam.

Relying on disclosure as a safety mechanism is one of the worries facing HIV-prevention organizations.

For Adam, and others in HIV prevention, the goal is to get more people coming forward for testing.

“Epidemiology suggests that more than a quarter of people who are positive don’t know they are, and that’s worrisome, both in terms of their own health and for the potential to actually pass on the virus unwittingly,” says Adam.


Only having sex with negative guys? Think again.

“Is asking your partners if they have HIV before having bareback sex a good way to prevent HIV transmission? The answer is no,” says Murray Jose, executive director of PWA Toronto.

There are two main reasons for this. Firstly, according to the Canadian AIDS Society, about 20,000 Canadians — or 30 percent of Canada’s HIV population — are HIV-positive and don’t know it.

Secondly, while most poz guys are committed to ensuring HIV ends with them, it’s a difficult subject to broach, meaning many people — whether poz or neg — have trouble discussing it, especially in the heat of the moment.

Asking someone their HIV status before having sex is known as “serosorting.” Serosorting is the practice of identifying social and sexual partners based on their HIV status.

In terms of harm reduction and making informed choices before having sex, Jose says serosorting can work for some people but not all.

“Some people may have a fuckbuddy they can trust. When you’re HIV-negative, it becomes harder to assess if someone wants to bareback. That’s when serosorting becomes totally ineffective and unhealthy,” says Jose.


AIDS activists are concerned that laying criminal charges for HIV transmission will impede HIV-prevention efforts.

• People will be less likely to talk openly and honestly about sex, HIV and other sexually transmitted infections.
• There may be a greater reluctance to get healthcare for sexually transmitted infections, including HIV, which may result in a greater risk of HIV transmission during sex.
• Poz folks will feel more isolated.
• People who don’t know their status will avoid HIV testing out of a fear that they may be criminally charged.
• People will fear public health staff and mistakenly presume that public health staff
and police are working together.
• HIV-negative people will think that criminal law will protect them from being exposed to HIV.

Information: Cécile Kazatchkine, policy analyst, Canadian HIV/AIDS Legal Network

Serosorting only works when you know your health status, says John Maxwell, director of policy and communications at the AIDS Committee of Toronto.

“It’s fine if you’re poz and disclose to someone else who is poz,” says Maxwell. “But often, when it comes to people communicating their HIV status, serosorting becomes sero-guessing. A lot of people make assumptions by cues that are not based on discussion.”

If you know you have HIV, you know you’ve got it for life, Maxwell points out. But people who think they’re HIV-negative need regular testing to know whether or not they’re still negative.

“Sometimes people think they’re negative and they’re being honest. But that doesn’t tell you much if they’ve put themselves at risk last week,” says Maxwell.

A lot of young people have a perception that because they’re young, they are not at risk of HIV transmission, says Andrea Poncia, HIV/AIDS prevention program coordinator with Youth Services Bureau in Ottawa.

“Often, youth are not lining up to get tested because they think it can’t happen to them,” says Poncia.

Poncia says disclosing HIV status requires a high level of communication skills, and many youth may not have these skills yet. She says this is often because even those who are poz may have internalized stereotypes and misinformation about HIV.

“Peers giving information to peers is where we get misinformation. Some youth already have troubles trusting adults. There’s a lot of misinformation about how HIV is transmitted. Even in this day and age, some people think you can get it from kissing, sharing drinks and touching lipstick. That can be isolating for people with HIV who may be afraid to tell people their status. They might be afraid people won’t want to be friends with them anymore. A lot of people are afraid to get support,” says Poncia.

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