HIV Disclosure

Since a key decision of the Supreme Court of Canada in 2012, people living with HIV have a legal duty to disclose their status before sex that poses a “realistic possibility” of transmitting HIV to another person. Otherwise, they could be charged with aggravated sexual assault.

As the law currently stands, it is clear that there is no obligation to disclose HIV-positive status before vaginal/front hole or anal sex if a condom is used and the HIV-positive partner has a “low” viral load (less than 1500 copies/ml).

Whether there is an obligation to disclose in other circumstances is less clear and will depend on how courts and prosecutors interpret medical evidence and the notion of a “realistic possibility of HIV transmission.”

In December 2018, the federal government issued a directive instructing federal lawyers to stop prosecuting people who have maintained a suppressed viral load (i.e., under 200 copies per ml) whether a condom was used or not. This also directed lawyers to “generally” not prosecute people who used a condom, took treatment as prescribed or just had oral sex because she concluded there is “likely no realistic possibility of transmission” in these circumstances.

For information on the criminal law and HIV non-disclosure in Ontario, see the HIV & AIDS Legal Clinic Ontario’s (HALCO) resource “HIV and the Criminal Law in Ontario.”opens in a new window

For more information on the criminal law and HIV non-disclosure across the country, see the Canadian HIV/AIDS Legal Network’s resource “The Criminalization of HIV Non-Disclosure in Canada: Current Status and the Need for Change.”opens in a new window

People working in health and social services have a professional responsibility to protect people's confidential information. HIV status is considered confidential under the Personal Health Information Protection Actopens in a new window. Workers may also be subject to agency or organizational confidentiality policies.

It is important to understand what the law, professional colleges, and workplace policies say about sharing someone’s confidential personal health information, which includes their HIV status. This can impact both support provided to people living with HIV, as well as how to answer and support them through any questions they have about HIV disclosure.