If an individual knows that they have HIV, the criminal law requires them to tell others before engaging in sexual activity that carries a "realistic possibility" of transmitting the virus.
Individuals who fail to do so may be charged with a criminal offence such as aggravated assault. Criminal charges could also result from other types of activity if the individual knowingly places another person at risk.
Individuals should educate themselves about ways to avoid the transmission of the virus between sexual partners or other risky behaviour such as the sharing of equipment when using drugs. Public Health rules require individuals who have tested positive to provide information to medical professionals about people who may have been exposed to the virus through them. These people must then be contacted directly or through a health care professional so that they can be tested.
Disclosure of HIV is not required in every case. The Supreme Court of Canada has ruled that there is no duty to disclose when the individual had a” low or undetectable viral load” at the time of the sexual activity and used a condom. As we learn more about the transmission of HIV, the legal test for determining whether a “realistic possibility” of transmission exists will continue to evolve.
To learn more see the Department of Justice Canada’s fact sheet on HIV Non-Disclosure and the Criminal Law.
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