What if a lawyer learns that her client is HIV+, something that the police and prosecutors don't know? In a recent case, an Ontario court held that a lawyer had a duty to disclose that status, even though her client's communication with her was protected by solicitor/client privilege. Solicitor client privilege does not apply if disclosure of a client's confidential information would prevent a crime. The court held that this rule applies, and the lawyer correctly disclosed her client's confidential information about their HIV status to the Crown prosecutor. To watch an interesting video about this case, go to http://www.lawtimesnews.com/videos/hiv-and-the-law.
The case is a worrying one. On the one hand, it is hard to argue against protecting prospective sexual partners of an individual from having sex not knowing of the client's HIV status. On the other hand, if HIV+ clients cannot tell their lawyers of their sero-status without risking disclosure to the Crown or the police, no HIV+ person would ever disclose their status to their lawyer. In turn that means that an HIV+ person is denied access to legal advice and representation, since their lawyer cannot advise them properly without all the facts.
In two other cases, the Supreme Court of Canada ruled on October 5 about what a person's duty is to her or his sexual partner if she or he is HIV+. The underlying principle is that you cannot truly consent to have sex with someone, if they are HIV+ and have not told you. The failure to disclose vitiates your consent to the sexual act, and can turn consensual sex into sexual assault.
The Supreme Court of Canada says in its October 5 decisions ( R. v. Mabior  S.C.J. No. 47 and R. v. D.C.  S.C.J. No. 48) said that an accused does not have to disclose his or her HIV status if there is a low risk of transmission for HIV - for example, where a person has a low viral load AND uses a condom. The conviction of one of the accused was overturned in the case in which he had a low viral load and used a condom; but permitted to stand in the case where he had a low viral load but did not use a condom.
Defence lawyers are concerned because the ruling appears to put an onus on the accused to show that he or she had a low risk of transmitting HIV when he or she had sex. It is a basic principle of criminal law that the Crown has to prove that a person committed a crime, and 'reverse onus' provisions such as this generally offend the Charter rights of an accused individual.
The takeaway lesson? If you are HIV positive, do the following: 1. Get your doctor to tell you whether or not you have a low risk of transmitting the virus. That way, you can later show that you had an honest and reasonable belief that your risk of transmission was low. 2. ALWAYS use a condom. 3. To be on the safest side, or i...tell your partner you are HIV+.