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This article is the second in our series about HIV. Read our first article: What’s HIV, and how do I get tested?
Remember that with treatment, HIV can be a chronic, manageable medical condition. It's important to take care of yourself and know that the law in Canada does not allow discrimination based on health status (including being HIV-positive).
It is also impossible to pass on HIV through sex if you are taking treatment and have a suppressed viral load.
Viral load is the amount of HIV in a person’s bodily fluids. It is usually measured per millilitre of blood. One of the goals of HIV treatment is to reduce a person’s viral load as much as possible so that there is less of the virus causing damage to the person’s immune system and organs.
When someone has a “suppressed” or “undetectable” viral load, it does not mean that they are cured of HIV. But it does mean that they cannot transmit HIV through sex.
- Suppressed viral load means a viral load of under 200 copies of HIV per millilitre of blood.
- Undetectable viral load means a person’s viral load is so low that HIV does not show up in viral load tests.
Do I have to tell others that I am living with HIV?
If you test positive for HIV, it is important to understand your rights and how the law impacts you before you tell others (disclose) that you are living with HIV.
Most of the time, whether you disclose that you are living with HIV is up to you. You may choose not to disclose because you are not sure how to tell people or because of stigma and discrimination against people living with HIV. You may also choose not to disclose because of homophobia, racism, transphobia, or xenophobia.
The situation is different when it comes to sex. See the section below for legal information about HIV disclosure and sex.
For information about privacy and confidentiality, you can look at these documents from the HIV Legal Network, available in 7 different languages.
Do I have to tell my sex partners that I am living with HIV?
In Canada, the criminal law says that, in certain circumstances, you must tell your sex partners that you are living with HIV before you have sex. This is often referred to as a “legal duty to disclose.”
You are legally required to tell your sex partner that you are living with HIV before you have sex when there is a “realistic possibility” that you could pass on (transmit) HIV. If you do not tell your sex partner before you have sex where there is a “realistic possibility” of passing on HIV, you can be charged with aggravated sexual assault, even if your partner does not get HIV.
Unfortunately, courts have not clearly defined what “realistic possibility” means. So sometimes, it can be really hard to figure out if you have a legal duty to disclose.
As of the date of publication of this article (April 2024), based on Ontario policy and recent court cases, here is guidance for people living with HIV in Ontario:
There is no legal duty to disclose in these situations:
- Kissing or other activities that have no risk of HIV being passed on.
- Vaginal, anal, or oral sex if your viral load is under 200 copies/ml blood for at least six months. This is the case whether or not a condom is used.
- Vaginal, anal, or oral sex if you use a condom correctly and it does not break, and your viral load is between 200 and 1500 copies/ml blood.
Prosecutions may take place in all other circumstances (prosecutions for oral sex alone are less likely). For up-to-date information, please contact the HIV & AIDS Legal Clinic Ontario (HALCO).
If you are threatened with criminal charges for not disclosing your HIV-positive status, please contact HALCO immediately. If police want to ask you questions, you do not have to answer them (you should only tell them your name and date of birth). Anything you say to police at any time may be used as evidence against you. You have the right to speak to a lawyer in private before answering questions from the police.
Where can I find legal information about HIV?
For legal questions on:
- Disclosure
- Privacy
- Access to healthcare
- Immigration law
- Social assistance and employment-related questions
You can contact HALCO, a legal clinic that offers free legal advice to people living with HIV in Ontario. You can speak with a caseworker at 416-340-7790 or toll-free at 1-888-705-8889 to ask questions about your legal rights as a person living with HIV.
Where can I get additional support?
- An AIDS service organization nearest to you.
- Your current doctor or the sexual health clinic where you tested positive.
- The Blue Door Clinic: Interim health care and social support to people living with HIV in the greater Toronto area who do not have health insurance coverage or access to HIV medication.
- HIV & AIDS Legal Clinic Ontario (HALCO)
- HQ Sexual and Mental Health Clinic: For cis guys into guys and two-spirit, transgender and non-binary people.
Presented by: The Ontario HIV Treatment Network (OHTN) and HIV & AIDS Legal Clinic Ontario (HALCO)