Omni May Not Include All: Case Comment on Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC

Contributed by Loïc Welch


“The duty to consult is about encouraging governments to consider their effects on Indigenous communities and consult proactively” (para 96)

The Charter of Rights and Freedoms guarantees that every Canadian has a fundamental right to life, liberty, and security. Moreover, as stated by Dr. Tedros Adhanom Ghebreyesus, Director-General of the World Health Organization, “[t]he enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.”

In Canada, the Crown has recognized and affirmed Indigenous rights, and has a duty to consult whenever governmental action may adversely affect these rights. However, what triggers this duty is being hotly disputed in the courts, as many cases have made their way to the Supreme Court of Canada in recent years.

The Duty to Consult

The relationship between Indigenous peoples and Canada is governed by the honour of the Crown, enshrined in section 35 of the Constitution and includes the duty to consult. This duty binds the Crown to consult Indigenous peoples whenever it contemplates actions potentially infringing Aboriginal rights. Moreover, as detailed in the Haida Nation decision, this duty is triggered even if the right or title potentially exists, but has not yet been determined to exist. The duty cannot be ignored if a consultation is requested. It requires that both parties deal in good faith.

To interpret the honour of the Crown as restricting its responsibility to only matters of Aboriginal rights and titles would run counter to reconciliation goals between the government of Canada and Indigenous peoples. After years of inquiry, the Truth and Reconciliation Commission put forth calls to action to guide the Canadian Government in recognizing its part played in the colonial history with regards to the marginalization of Indigenous peoples. This led to the establishment of the Principles respecting the Government of Canada’s relationship with Indigenous peoples. The sixth principle specifically states that “[t]he Government of Canada recognizes that meaningful engagement with Indigenous peoples aims to secure their free, prior, and informed consent when Canada proposes to take actions which impact them and their rights, including their lands, territories and resources” [added emphasis]. With this principle, the government recognizes that their duty towards Indigenous peoples extends beyond the duty to consult on purely Aboriginal rights and treaties. For instance, many Nations live and depend on the lands around them and their interests in these lands have a major impact on their health and general well-being. If the government intends to implement or disband regulations, through legislation, which may have adverse impact on neighbouring Nations, then it seems the duty to consult would be triggered.

Health extends beyond simply what you would go to the hospital for. There is a growing body of research that highlights what are termed “social determinants of health” which comprise social, economic, cultural, and political inequities influencing health outcomes of Indigenous peoples. With this in mind, it’s important to recognize that the colonial history and continuing marginalization of Indigenous peoples has profound effects on their mental, physical, and spiritual well-being. In fact, Indigenous peoples, both on reserve and off-reserve, suffer from serious health issues (e.g. increased rates of malnutrition, suicide, mental health issues, infectious diseases) as compared to the general Canadian population. While the Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40 case, outlined in the following section, appears to deal exclusively with issues of Aboriginal rights and treaty rights, the repercussions are far-reaching and set precedent for immunizing legislation from the duty to consult. This duty has been recognized and circumscribed to executive actions. In other words, the government only has an obligation to consult Indigenous peoples where it is taking direct action, and is absolved of this duty when developing legislation.

The government only has an obligation to consult Indigenous peoples where it is taking direct action, and is absolved of this duty when developing legislation.

Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40

In 2012, the Government of Canada introduced two omnibus bills setting the course on environmental protection; no Indigenous Nations were consulted before the introduction of these bills. The Mikisew Cree First Nation brought an application for judicial review, stating that because of the potential impact of the omnibus legislation on their treaty rights, the Crown had a duty to consult in accordance with s. 35 of the Constitution.

The duty to consult is context-dependent and requires a proportionate consultation to the degree of infringement on the alleged right. In this case, the Mikisew Cree Nation contended that the legislation threatened their right to hunt, trap, and fish on their traditional territory—which have core implications to the way of life and health of the Nation. These rights were recognized and guaranteed by the Crown in Treaty 8, and the alleged breach by the omnibus bill would require “deep” consultation, proportionate to the infringement.

The reviewing judge agreed with the Mikisew, stating that the duty to consult had been triggered. However, the Federal Court of Appeal disagreed and found that the reviewing judge erred by reviewing legislative action, which is immune from review. The Mikisew appealed the decision to the Supreme Court of Canada. The majority concluded that duty to consult is only recognized and circumscribed to executive action. In other words, the government only has an obligation to consult Indigenous Nations where it is taking direct action, and not when developing legislation. The majority explained that the separation of powers found in the Constitution favours minimal interference from one branch of government to another (i.e. legislative, executive, and judiciary). The majority stated that “[a]pplying the duty to consult doctrine during the law-making process would lead to significant judicial incursion into the workings of the legislature [para 38].” Moreover, the recourses used to mend a breach of the duty to consult would amount to undue judicial interference in the law-making process.

The Honourable Justices Abella and Martin JJ., concurring in-part, expressed their concern about the majority’s reasoning when it came to legislative immunity from judicial review in situations where the duty to consult is potentially breached. They contended that recognizing this immunity would essentially create a “gap in the s. 35 framework” and leave “Aboriginal rights-holders vulnerable to the same government objectives carried out through legislative, rather than executive, action [para 79].” The Justices continued, stating that the Crown was bound to its honour in all relations with Indigenous peoples and that the principle of parliamentary sovereignty does not absolve the Crown from consulting when potential rights or interests are at stake.

Commentary & Implications

The governing principles that guide the relationship between the Crown and Indigenous peoples in Canada denote the importance of respecting already-established treaty rights and Aboriginal rights. However, there is also a contention that the interests of Indigenous peoples extend beyond simply these categorized rights.  In the third governing principle, it is stated that the honour of the Crown also ensures that Indigenous peoples are to be treated with respect like all other Canadians. Importantly, the goal of these principles is to recognize a duty of “good faith, the rule of law, democracy, equality non-discrimination, and respect for human rights.” Do Indigenous interests and human rights not include a fundamental right to health, such as that recognized by the World Health Organization? The Supreme Court of Canada, in Mikisew case, restricts the duty to consult to direct action by the government, rendering legislative direction which directly threatens many Indigenous peoples’ way of life immune from judicial oversight. In this case, the omnibus bills will weaken the protections in place for natural resources and food sources for the Mikisew Nation, thereby threatening their livelihood and other interests, such as health, which were previously protected by treaty.

Loïc Welch is a Senior Online Editor of the McGill Journal of Law and Health and a second-year B.C.L./LL.B. student at McGill University’s Faculty of Law. Loïc holds a M.Sc. in Forensic Psychology from Maastricht University (Netherlands), was a research assistant at the Douglas Mental University Institute in Montreal, and interned at the Professional Clinical and Forensic Services, a part of the Institute on Violence, Abuse, and Trauma in San Diego, California.

Electronic Health Records: a Glimpse Into the Legal Framework

Contributed by Annelise Harnanan 


In an attempt to improve and modernize the state of health care in Canada, many provinces have been investing significant amounts of money and time into the digitization and centralization of health records. In 2013, Quebec introduced an electronic database, called the Québec Health Record, to securely share a patient’s information with their other healthcare providers. The aggregation of patients’ health data on a single electronic database has many advantages. However, the increasing use of Electronic Health Records (EHRs) has caused some concern that the legislative framework surrounding health information privacy might require some adaptations.

The term “Electronic Health Record” has been defined somewhat inconsistently in the literature. Häyrinen, Saranto & Nykänen, basing their definition off of the International Organization for Standardization, have described it as a “repository of patient data in digital form, stored and exchanged securely, and accessible by multiple authorized users”. EHRs bring all of a patient’s health data into one digital location. This information can be accessed by any of that patient’s health care providers when authorized by a patient. Notably, there are other electronic forms of medical information, such as electronic patient information files, which are localised at hospitals and health clinics and are not shared amongst health care providers.

2472281967_73772b6c43_o Electronic servers can be used to store digital information || (Source: Flickr // Stefano Petroni )

The Benefits of an Electronic Health Record

The implementation of EHRs has been widely supported and encouraged. Experts claim that such modernization would greatly increase efficiency within the Canadian health care system. A 2002 report compiled by the Commission on the Future of Health Care in Canada contended that EHRs would significantly improve patient treatment.

For example, the existence of an EHR could provide an emergency room doctor with quick and easy access to a patient’s medical information and prescription history which the doctor otherwise may not have had. Additionally, with EHRs, doctors at walk-in clinics can have access to the details of a patient’s medical history. In both cases, patients can receive more personalized care due to the existence of an EHR. Therefore, even when a patient is not being seen by a family doctor who is familiar with their unique health needs, the patient can still receive care tailored to their own health circumstances. This is especially valuable given that in 2016, Statistics Canada reported that 15.8% of Canadians above the age of twelve said they did not have a regular health care provider.

Privacy Breach Risks

A commonly cited concern over the implementation of EHRs in Canada is the risk of privacy breaches. The digitization of health records may bring an ease of access which may not have previously existed when records were in paper form and stored under lock and key. Organisations that have access to electronic health records, which can include the provider of the electronic platform itself, information technology specialists, hospitals, private clinics and sometimes third parties such as provincial Workers’ Compensation Boards, would need to introduce stringent privacy regulations and mechanisms for ensuring only those authorized to view a particular patient’s health data have the ability to do so.

Concerns over the security of private health information under EHR systems are not unfounded. Earlier this year, a lab assistant in Calgary admitted to inappropriately accessing the health records of 11 Albertans. This unauthorized access was discovered during a routine audit of accesses to the EHR system. It appears that the digitization of health records in general can make health information more vulnerable to these privacy breaches.

Nova Scotia, which does not have an EHR system (the province is currently undergoing a bid process to acquire one) has also been the site of some serious privacy breaches. Between 2005 and 2011, a former employee of the Nova Scotia Health Authority (then called Capital District Health Authority) accessed, without authorization, the information of approximately 100 friends and family members. This has resulted in a class action lawsuit with a proposed settlement worth about $400,000. The former employee who committed the breach admitted to doing so simply because it was “so easy”. In a report released last year by the Office of the Information and Privacy Commissioner for Nova Scotia, Privacy Commissioner Catherine Tully recommended that the province’s health authority implement a number of preventative measures, including online privacy training for staff and proactive user audit flags for high profile patient and excessive patient access. The Health Authority has accepted and implemented these recommendations. Nevertheless, some have taken this incident as an indication that the province is not ready to embark on the task of implementing a centralized EHR system.

Mitigating risk – the Legislative Framework

In Canada, there are two levels of privacy legislation, both at the federal level and provincial level. At the federal level, laws relating to privacy rights include The Privacy Act, which governs the way federal government institutions handle personal information, and The Personal Information Protection and Electronic Documents Act (PIPEDA), which governs how private-sector organizations use personal information.

The provinces also have their own privacy legislation, and in some provinces this legislation has been deemed “substantially similar” to PIPEDA and must be followed instead. Ontario, Nova Scotia, Newfoundland and New Brunswick have adopted legislation deemed substantively similar to PIPEDA with respect to health information. Because of the complex nature of healthcare provision in Canada, there is some uncertainty over whether provincial or federal legislation would apply in the context of digital health information, EHRs and privacy breaches.

Generally, however, publicly funded hospitals are not regarded as commercial bodies, and their use of personal information is regulated by the provinces and territories. On the other hand, the Office of the Privacy Commissioner of Canada’s website explains, “private health practitioners” and “privately funded long-term care facilities, nursing homes, retirement residences and home care services are generally considered to be conducting commercial activities and therefore… PIPEDA would likely apply to their personal information practices unless substantially similar legislation exists within the province or territory”.

Because personal health information is mostly regulated under these provincial acts, the presence of EHRs and the degree of the law’s protection over the health information contained within them vary across Canada. Québec has had an EHR system for many years, and the province has developed a robust regulatory framework around it. Conversely, as mentioned earlier, Nova Scotia currently has no EHR system. Interestingly, although Ontario has an EHR system, the laws surrounding it, which received royal assent in 2016, have not yet come into force.

Ontario’s Personal Health Information Protection Act (PHIPA) sets out that health information custodians must “take steps that are reasonable in the circumstances to ensure that personal health information in the custodian’s custody or control is protected against theft, loss and unauthorized use or disclosure and to ensure that the records containing the information are protected against unauthorized copying, modification or disposal”. Additionally, concerns over privacy breaches can be reported to the Information and Privacy Commissioner (IPC) in the form of a complaint, whose office will then investigate the incident and where appropriate, levy a fine against someone who has committed an offence under the act. In 2017, the IPC ordered a social work student to pay $25 000 for accessing information of five individuals without proper authorization.

In 2016, amendments to PHIPA that would regulate EHRs were made under Bill 119. These amendments describe what it means to ‘use’ an Electronic Health Record, create a duty for prescribed organizations to develop and maintain an EHR, and set out the requirements of the EHR. Though these laws are not yet in force, presumably because it would take a great deal of time and resources for hospitals and other prescribed organizations to ensure they have the proper infrastructure to comply with them, the fact that they have been passed indicates that the Ontario government recognizes the growing prevalence of EHRs and the resulting need to legislate in a manner that protects the health information of Canadians.

Nevertheless, given the personal nature of the information that is contained in Electronic Health Records, one might question whether these provincial regulatory frameworks can provide adequate protection. Ontario’s PHIPA, for example, allows for someone whose privacy has been breached to commence a proceeding at a Superior Court for “damages for actual harm that the person suffered as a result of a contravention of this Act or its regulations”. However, some have suggested that with the increased use of EHRs, more safeguards should be put in place. In the Report on the Future of Health in Canada, Commissioner Romanow recommended that privacy breaches of Electronic Health Records should be “treated as an offense under the Criminal Code of Canada”. Indeed, this could ensure more consistent protections against improper access of personal health information throughout the country.

Annelise Harnanan is a Junior Online Editor with the McGill Journal of Law and Health. She is in her first year of the B.C.L./ L.L.B. program at McGill University’s Faculty of Law, and has a keen interest in health policy. She holds a BA with distinction in Political Science from Dalhousie University.

Jurisdictional Disputes and Indigenous Health: The Emergence of Jordan’s Principle

Contributed by: Maya Gunnarsson


In 2005, Jordan River Anderson, a child from Norway House Cree Nation, died at the age of five without ever having lived at home.  Jordan was born with a rare muscular disorder that required him to be placed in a hospital in Winnipeg, approximately 800 km away from his home.  After two years of care in the hospital, Jordan’s doctors cleared him to be discharged to a specialized foster home to receive at-home care.  Unfortunately, Jordan never made it to the foster home.  The provincial and federal governments disputed who should pay for Jordan’s homecare for over two years, until Jordan’s death.

Neither the provincial nor the federal governments were willing to pay for Jordan’s home care, due to the jurisdictional ambiguities in the Constitution’s division of powers.  Sec 92(7) of the Constitution Act, 1867 assigns exclusive powers over hospitals to the provinces, while sec 91(24) assigns legislative authority over Indians to the federal government.  The legal term Indians has traditionally referred to First Nations people, with the federal government’s fiduciary duty only extending to “status Indians”.  In 2016, the Supreme Court of Canada expanded this definition, declaring that non-status Indians and Métis were to be considered “Indians” under sec 91(24).  As this expanded definition is relatively new, and many of the decisions referenced in this post used the previously accepted definition, the term “First Nations people” will be used in this post when referring to “Indians”.

The Manitoba government argued that the federal government had a fiduciary duty to First Nations people both on and off reserve and therefore Health Canada should be financially responsible.  The federal government argued that the provincial healthcare system was responsible for Jordan’s care.  As the two levels of government disputed who should foot the bill, Jordan was denied the service and remained in the hospital.

6872410817_eabeba8c24_o Hospital Bed || (Source: Flickr // Aaron Noble )

Jordan’s situation was not isolated.  Hundreds of First Nations children were being denied or delayed receipt of public services available to non-Indigenous children each year.

Jordan’s Principle is a response to this situation.  It states that when there is a jurisdictional dispute between different levels of government, or governmental departments over services for First Nations children, the government of first contact must pay for the service, and resolve the dispute over payment afterwards.  It is intended to ensure all children have equitable access to governmental services, such as healthcare.

Legislative History

From 2005-2008, following what happened to Jordan, Manitoba MLA Jon Gerrard unsuccessfully tried to pass Jordan’s Principle into law in the provincial legislature multiple times.  While these attempts failed in the Manitoba legislature, the House of Commons unanimously passed Private Member’s Motion 296 in 2007.  The motion stated, “the government should immediately adopt a child first principle, based on Jordan’s Principle, to resolve jurisdictional disputes involving the care of First Nations children.”

This was seen as an important step in ensuring equitable access to governmental services such as healthcare for First Nations children. However, it was not a binding motion.  Further, it did not specify any implementation measures or outline how jurisdictional disputes would be resolved.  Over the following four years, the federal government reached bilateral and tri-partite agreements with a number of provinces, territories, and First Nations to implement jurisdictional dispute resolution processes.  However, commentators have criticized the majority of these agreements for being inadequate in implementing Jordan’s Principle.


Following the adoption of these agreements, primarily through dialogue with the courts, the federal government’s interpretation of Jordan’s principle has been evolving.  The biggest criticism of the government’s initial approach was their narrow interpretation of eligibility for Jordan’s Principle.  Specifically, the federal government’s operational definition of Jordan’s Principle did not align with the definition that had been adopted by the House of Commons.  Jordan’s Principle had been approved in the House of Commons as a motion, not a law; the subsequent agreements that came into place to operationalize the motion took a much narrower view of who could benefit from the respective agreements.  In 2013, Aboriginal Affairs and Northern Development Canada (AANDC) described Jordan’s Principle as only applying when: (1) the child lived on reserve; (2) the child had multiple disabilities requiring services from multiple service providers; and (3) there was a jurisdictional dispute between the provincial and federal governments. The narrow scope of this definition effectively denied redress to many First Nations children who may have faced delays or denials of services.

This interpretation of Jordan’s Principle was first challenged in Pictou Landing Band Council v Canada (Attorney General) (2013), specifically in relation to the definition of a jurisdictional dispute as only arising when there was a declaration of a formal payment dispute.  The Pictou Landing Band Council (PLBC) provided the homecare support necessary to care for Jeremy Meawasige, a teenager with multiple disabilities and high care needs. PLBC applied for funding relief under Jordan’s Principle. However, this was denied as AANDC reasoned that there was no jurisdictional dispute, since both the province and the federal government agreed that the requested funding was above what could be provided.  The provincial health plan had a maximum allotment for patients requiring at-home care.  The cost of Jeremy’s care exceeded this limit.  Had Jeremy lived off reserve, he would have been eligible for exceptional funding, but both levels of government ignored this when assessing his application. The federal government concluded that the funding PLBC was requesting was above what the province would provide for a non-Indigenous child, so they would not provide it either. This narrow definition of a jurisdictional dispute meant that Jeremy would be denied the care that he would have otherwise received had he lived off-reserve.  The federal court rejected this definition, stating that Jordan’s Principle should not be narrowly interpreted, and ordered the federal government to reimburse PLBC.

In 2015, the Truth and Reconciliation Commission’s final report came out.  The third Call to Action was for Jordan’s Principle to be fully implemented by all levels of government. The federal government, however, continued to interpret the principle as having a very narrow scope.

In 2016, the Canadian Human Rights Tribunal (CHRT) ordered Indigenous and Northern Affairs Canada (INAC), AANDC’s successor, to expand their definition of Jordan’s Principle. The CHRT found that whereas the motion that had been passed by the House of Commons was broadly framed, INAC’s interpretation to only apply the principle to inter-governmental disputes and to children with multiple disabilities, excluded a wide number of cases that the principle was intended to cover.  Further, it found that the process INAC had mandated to Jordan’s Principle applications inherently resulted in delays to services. The decision stated that INAC’s narrow interpretation of Jordan’s Principle resulted in service gaps, delays or denials and overall, adverse impacts on First Nations children – the very problems the principle was intended to address.   They concluded that it “ignores a large number of disputes that can arise and need to be addressed under this Principle.” The court ordered INAC to “cease applying its narrow definition of Jordan’s Principle and to take measures to immediately implement the full meaning and scope of Jordan’s principle.”

Three months after this ruling, the CHRT issued a non-compliance order, clarifying that starting discussions to review the INAC’s definition did not meet the standard required for immediate implementation. Five months later the CHRT issued another order, stating that INAC misinterpreted the original decision as indicating that Jordan’s Principle should only apply to First Nations children on reserve. They ordered INAC to immediately apply the principle to all First Nations children.  The CHRT issued another non-compliance ruling in 2017, ordering the federal government to “cease relying upon and perpetuating definitions of Jordan’s Principle that are not in compliance with the Panel’s orders in 2016 CHRT 2, 2016 CHRT 10, 2016 CHRT 16 and in this ruling.”

The Situation Today

The federal government has stated it is taking a renewed approach to Jordan’s Principle, in order to comply with the CHRT rulings. It remains to be seen if this approach will be viewed as sufficient at achieving the aims of the principle by courts.  If successful, it may be seen as a template for future agreements between the provinces, the federal government, and First Nations regarding services for Indigenous people.

As a child-first policy, Jordan’s Principle only applies to government services for First Nations children.  There is still a large gap in health outcomes for Indigenous peoples as compared to non-Indigenous Canadians, part of which can be attributed to a lack of access to services due to jurisdictional disputes.  The TRC’s twentieth Call to Action specifically highlights this and calls on the federal government to address it.  Working under its expanded definition, Jordan’s Principle and the ensuing agreements between various levels of government regarding implementation could be viewed as an example on how to deal with these types jurisdictional disputes moving forward.

Maya Gunnarsson is a Junior Online Editor of the McGill Journal of Law and Health and a first-year B.C.L./ LL.B. student at McGill University’s Faculty of Law. Maya holds a M.A. in Canadian Studies and Indigenous Studies from Trent University where she focused her research on the role of the media in the ongoing crisis of violence against Indigenous women and girls. She also holds a B.A. in Political Science from McGill University.  Maya has worked as a researcher at the Higher Education Quality Council of Ontario and interned at the Office of the UN High Commissioner for Human Rights in the Indigenous Peoples and Minorities Section.

The Criminalization of HIV Non-Disclosure: A Closer Look at the Duty to Disclose

Contributed by: Annelise Harnanan

A Closer Look at the Duty to Disclose

In Canada, failing to disclose a positive HIV status may lead to charges for various offences – most notably aggravated sexual assault and aggravated assault. Two landmark Supreme Court of Canada cases have described the circumstances under which an individual with HIV may be prosecuted for not disclosing their status: R v Cuerrier and R v Mabior. However, the criminalization of non-disclosure of HIV status has been widely criticized by experts in various fields, such as the domains of science and public health.

9129338065_9e9d4cfe2b_o A model of the HIV virus || (Source: Flickr // James H. )

The Law

The Criminal Code does not contain any offences specifically related to HIV or other sexually transmitted infections. However, in the late 1990s, the police started to lay criminal charges related to HIV exposure. In R v Cuerrier, Cuerrier was charged with two counts of aggravated assault under s. 268 of the Criminal Code which states that “Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.” Cuerrier, who was HIV-positive, had unprotected sexual relations with two women without informing them of his status. It is important to note that one cannot consent to an assault; therefore it is important for the court to establish that consent could not have been obtained, because the victims were not informed of critical information that would otherwise have made them refuse the sexual encounter. The courts held that the fact that he did not inform them of this positive status constituted a fraud and vitiated consent under s. 265 (3)(c), satisfying the mens rea element for the offence of aggravated assault. Additionally, the offence’s requirement that the accused’s acts endanger the life of the complainant under s. 268 (1) of the Criminal Code was met because not disclosing his positive status, vitiating consent under s. 265 (3)(c), and having unprotected sex “put the complainant at a significant risk of suffering serious bodily harm”. Therefore, the courts had stated that non-disclosure of an HIV-positive status could constitute assault if there was a significant risk of serious bodily harm to the complainant.

After the ruling in R v Cuerrier, commentators pointed out the challenges in determining when there may or may not be a significant risk of bodily harm. For example, it was uncertain whether condom use would negate the significant risk of bodily harm. Additionally, it was not clear whether or not a person’s viral load would affect this risk. In her article for the McGill Journal of Law and Health, Grant argues that Courts’ interpretation of Cuerrier have resulted in “too broad and too uncertain a test for criminalization of non-disclosure”. Over time, the courts also wrestled with this idea, and many acknowledged the need to clarify the law and its duty to disclose.

In R v Mabior, the judges of the Supreme Court acknowledged this need and set out to specify when the non-disclosure of a positive HIV status during sexual activity could count as a “significant risk of serious bodily harm.” The Court found that this risk exists when there is a “realistic possibility of transmission”. This realistic possibility of transmission is defined in negative terms: it is not met “if the HIV-positive person has a low viral count […] and there is condom protection” (para 4). In other words, to avoid criminal prosecution, a person with HIV who does not disclose that status during sex must have a low or undetectable viral count and they must use a condom. Notably, however, the Supreme Court said that this test is a conclusion flowing from the facts of this case, and that it does not prohibit the common law from adapting to advances in treatment and different circumstances involving other risk factors. Nevertheless, Mabior’s contributions to the legal framework surrounding the duty to disclose have been critiqued. Some of the criticisms are examined below.

The Science

It is often said that the law does not keep pace with science or technology, and some say that the criminalization of non-disclosure is no exception. In July 2018, a team of twenty scientists released an Expert Consensus Statement examining the abundance of prosecutions related to the perceived risk of HIV acquisition. The authors contend that these prosecutions often happen where “HIV transmission did not occur, was not possible or was extremely unlikely” and therefore are not informed by the best available scientific evidence. The authors state that the per act chance of HIV transmission during sexual intercourse ranges from “zero to low”, and that correct use of a condom prevents HIV transmission. “Correct use”, they say, means “the integrity of the condom is not compromised, and the condom is worn throughout the sex act in question”. Contrary to the ruling in Mabior, this suggests that even if a person has a high viral load but uses a condom properly, a realistic possibility of transmission of HIV would not exist. Though this article was published  recently, the evidence used has been written on as far back as 1997, suggesting that this information had been around at the time of the ruling in Mabior in 2012. This supports the contention that the law is not always up to date with science.

The consensus statement then asserts that people living with HIV have an increased life expectancy and that their quality of life has significantly improved thanks to antiretroviral therapies. Researchers maintain that persons with HIV can live healthy, normal lives if they obtain proper treatment. This questions whether or not the criminal law ought to punish only those with a positive HIV-status, and not other treatable sexually transmitted infections, in cases of non-disclosure. It also brings into question whether non-disclosure of issues not related to sexually transmitted infections, such as increased risk of pregnancy, should also vitiate consent. Given the scientific research, it is unclear what differentiates HIV positive status from these other cases to vitiate consent. Without sufficient differentiation, in order to be consistent, the criminal law should arguably not criminalize HIV-exposure in the case of non-disclosure.

A Public Health Perspective

In a report on Criminalizing HIV Non-disclosure, Exposure and Transmission, Mykhalovskiy and others compile and summarize various research projects addressing the topic. They noted that most research found that criminalization negatively impacts public health and community-based efforts to prevent HIV transmission. They found that criminalization increases stigma and discrimination – especially in racialized communities. It is argued that this stigma discourages people from getting tested, which delays treatment. This delay in treatment can be detrimental to a person’s health. The authors also note that criminalization of non-disclosure can negatively impact HIV care by legally altering the relationship between practitioner and patient.  Though this is described as a “subtle impact”, the authors of the study explain that nurses have reported challenges in maintaining good relationships with their patients. They also found that some nurses’ note-taking practices were altered upon criminalization, due to the possibility that client records might be subpoenaed. Though this particular study was based on a small sample, if there is a broad change in practitioner behaviour due to criminalization, it could be harmful to public health efforts combatting HIV if it negatively impacts the rapport between patient and practitioner.

101019-N-3237D-039 Doctor Patient communication such as this can be negatively affected || (Source: Flickr // Continuing Promise 2010 )

Is the Law “Catching Up”?

In certain cases, courts have not strictly applied the test set out in Mabior that there is no realistic possibility of transmission (and therefore no significant risk of bodily harm) if a condom is used and there is a low viral load. For instance, the Nova Scotia Provincial Court, in R v J.T.C., decided that although the accused did not use a condom during sex, the realistic possibility of transmission test was found not to have been met because he had a low viral count. In this case from 2013, the court relied on expert scientific evidence to conclude that there was a very low risk of HIV transmission and acquit the accused. Therefore, the law acknowledged that, contrary to the ruling set out in Mabior, there may not be a realistic possibility of transmission without condom use, if there is a low viral load.

Recently, the Canadian government set out to reconcile tensions between the scientific and public health arguments described above and the law’s criminalization of non-disclosure. In December 2017, the Department of Justice Canada released a report on the Criminal Justice System’s Response to Non-disclosure of HIV. The report, among other things, acknowledges the accuracy of the science described above. It also concludes that the criminal law should “generally not apply” to persons living with HIV who use condoms or are on treatment because “the realistic possibility of transmission test is likely not met in these circumstances”. In spite of the Supreme Court’s rulings in Cuerrier and Mabior, given the Government’s report mentioned earlier, it is possible that courts will find, as in R v J.T.C., ways in which a realistic possibility of transmission does not exist through means other than condom use and a low viral load. However, it is unclear if the report’s recommendations will be followed nation-wide. It is possible that courts continue to apply the test laid out in Mabior inconsistently. The uncertainty of whether or not one’s actions will be criminalized arguably violates the principle of rule of law that one should be able to know for what he or she may be criminalized. However, there is hope that judges take the time to carefully examine the facts and listen to expert witnesses backed by science in ascertaining whether this risk existed in individual circumstances.

Annelise Harnanan is a Junior Online Editor with the McGill Journal of Law and Health. She is in her first year of the B.C.L./ L.L.B. program at McGill University’s Faculty of Law, and has a keen interest in health policy. She holds a BA with distinction in Political Science from Dalhousie University. 

Moving Toward Inclusiveness in Safe Injection Sites

Contributed by Loïc Welch

Canada decided, as a country, to respond to the growing drug epidemic by following the harm-reduction route and choosing not to criminalize some of its most vulnerable populations. A legal framework to tackle the growing issue of drug-related hazards arose out of collaboration between local, provincial, and federal actors who came together to create sites where drug possession is exempted from criminalization. Safe injection sites (SIS) provide medically supervised locations where the users can administer their own drugs safely and without fear of arrest and prosecution by law enforcement. The purpose of this endeavour was to address the rising epidemic of blood-borne diseases – which spread through the sharing of infected needles – and the increasing rates of drug overdoses resulting in death. The Insite facility, located in Vancouver’s Downtown Eastside and founded in 2003, was the Canadian trailblazer. It received an exemption from the Controlled Drugs and Substance Act (CDSA), granted by the federal government. In 2008, the Minister of Health decided not to renew Insite’s legal exemption from the CDSA, leading into a contentious legal challenge on constitutional grounds. While the complete constitutional powers analysis is fascinating, it was ultimately the Charter infringement that paved the way for real change. Former Honourable Chief Justice Beverly McLachlin, writing for the majority, held that the claimants’ rights to life, liberty, and security of the person under section 7 of the Charter were violated by the Minister’s decision of not renewing the exemption from the CDSA. In order for Insite to fulfill their mandate, the people who use their services needed to not fear consequences of possessing drugs at the site: “To prohibit possession by drug users anywhere engages their liberty interests; to prohibit possession at Insite engages their rights to life and to security of the person” (para 92). The latter part of the quote refers to the fact that by criminalizing drug possession at Insite, it prevents the users from safely administering their drugs and potentially exposes them to life-threatening situations, thus engaging all three section 7 rights.

2755486071_7c387fa774_o Syringe. || (Source: Flickr // Syringe 4 With Drops )

Drug addiction is a recognized mental disorder that, in addition to the primary impact of the drug on the body, carries a slew of hazards to the user. One example is the unsafe injection practices arising out of the need for an immediate ‘fix’. These include sharing injection material, overusing needles, unsanitary solvents, and so forth. In addition, many users risk encounters with law enforcement for drug possession, use, and trafficking. The criminal charge of trafficking given to drug users is often the result of them purchasing the drugs together and sharing them, which does not align with the purpose behind the criminalization of trafficking. This issue would require the government to undertake a cost-benefit analysis of harm-reduction and deterrence, and implement a possible exemption from trafficking laws in SIS. Such an improvement would align with common drug use practices known as ‘split dosing’ and assisted injection. Many drug users buy their doses jointly and split it amongst themselves, especially in times of financial precarity; they also often inject together, assisting the other person in time of need.

6391981735_85788bc133_o Rob & Mary a few weeks before she died of an overdose. In the Picture Robbie is burning the heroin on the aluminium foil so that Mary can inhale it. || (Source: Flickr // Love on the Streets )

Implemented in other SIS and overdose prevention services across Canada, this practice has the benefit of providing a modicum of safety and support in an otherwise hazardous environment. However, while these exempted sites have won the battle over decriminalized possession in their facilities, other common practices surrounding drug use remain illegal onsite. These pose barriers to accessibility and can turn away some of the most vulnerable users that would otherwise greatly benefit from their services. To get a better understanding of these issues I went to meet Kim Brière-Charest, coordonatrice de l’intervention de proximité de L’Anonyme (SIS Mobile) in Montreal. The following section is in French, to report her words more accurately.

Kim commença par m’expliquer les structures de SIS en place au Québec, les réalités du terrain et la nature des enjeux existant. Montréal recoupe quatre services d’injection supervisée (SIS), incluant des utilisateur(e)s qui consomment des substances issues de prescriptions légales dont certains en sont devenus dépendants(e)s. Ces utilisateur(e)s représentent une portion non-négligeable des individus qui utilisent les services du SIS, et cette portion fait partie de la crise des opioïdes tant médiatisée. Il existe également d’autres espaces sécuritaires pour les personnes consommant  des substances comme les centres de prévention des surdoses (CPS ou overdose prevention services (OPS)). Ceux-ci sont non-exemptés du CDSA par Santé Canada et sont, dans certains cas, des mesures transitoires dans l’attente de l’obtention d’exemptions.  Ils sont généralement tolérés notamment sous forme de « pop-ups » par les autorités publiques.

Les SIS ont été implantés via des organismes à but non lucratif en partenariat avec le Centre intégré universitaire de santé et de services sociaux (CIUSSS) du Centre-Sud-de-l’Île-de-Montréal. Les équipes sur le terrain sont composées d’intervenants psychosociaux, de pairs-aidants (dans certains sites), et de personnel infirmier. Ces équipes créent un soutien, autant psychosocial que médical, pour venir en aide aux individus utilisant les SIS dans le but de réduire les risques liés aux pratiques entourant la consommation. Kim m’expliqua que les SIS connaissent les lacunes des exemptions, ce qui laissent des manques à combler. Le législateur associe le partage de dose au trafic de substances, ce qui n’est pas inclus dans l’exemption pour possession à des fins de consommation personnelle. Cependant, ce résonnement ne reflète pas la réalité de la pratique de consommation puisque la population achète les doses ensemble et les consomme ensemble. L’injection assistée est souvent liée à des pratiques de partages de doses sur le terrain. Un projet-pilote d’injection assistée a été proposé par Santé Canada à six SIS à travers le pays notamment en réponse à la demande des communautés de réduire les barrières d’accès aux services pour des personnes nécessitant un soutien à l’injection. On peut par exemple penser à celles prises avec des limitations physiques qui les empêchent de manipuler le matériel d’injection de façon sécuritaire. Leur demande amène un volet d’enseignement des techniques d’injection et de sécurité plus inclusives. Cela réduirait les critères d’exclusion aux SIS au même titre que le partage de dose qui demeure, à présent, illégal alors qu’il fait partie des réalités courantes sur le terrain. Kim conclut avec une phrase qui reflète le besoin de changement : « À L’Anonyme, on considère primordial de développer des services en adéquation avec les besoins de la communauté. Comme le partage de dose fait partie des pratiques de consommation courantes, il demeure incontournable de décloisonner les barrières à l’accessibilité afin d’être en cohérence avec le terrain, particulièrement dans un contexte de surdoses où le but premier est d’offrir un espace de consommation sécuritaire et de prévenir des décès qu’on est en mesure d’éviter. »

Loïc Welch is a Senior Online Editor of the McGill Journal of Law and Health and a second-year B.C.L./LL.B. student at McGill University’s Faculty of Law. Loïc holds a M.Sc. in Forensic Psychology from Maastricht University (Netherlands), was a research assistant at the Douglas Mental University Institute in Montreal, and interned at the Professional Clinical and Forensic Services, a part of the Institute on Violence, Abuse, and Trauma in San Diego, California.