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.

Climate Change and Human Health: Who Should Bear the Cost?

Contributed by Pouya Dabiran-Zohoory

As early as 2001, there has been international recognition of the human impact on climate change. The Third Assessment Report of the Intergovernmental Panel on Climate Change stated: “There is new and stronger evidence that most of the warming observed over the last 50 years is likely to be attributable to human activities”.

Earth’s natural greenhouse effect has been amplified by human actions which increase the concentration of energy-trapping gases in the lower atmosphere.  The international community has demonstrated awareness of the problem and motivation to work towards a potential solution. Various treaties, including most recently the Paris Agreement, commit to rapid reduction in greenhouse gas (“GHG”) emissions to keep global average temperatures below a 1.5°C rise from pre-industrial levels.

Many different methods have been proposed, and in some cases implemented, to combat this problem – from incentive-based solutions such as sustainable investment policies, to market-based economic systems such as carbon tax or cap-and-trade programs. The main objective of these systems is to reduce GHG emissions.

While these efforts are promising, it is also important to acknowledge that even with drastic emission reductions, there are ongoing consequences of the GHGs already emitted. Specifically, one of the consequences of climate change is an adverse impact on human health. Some direct effects on health cited by the World Health Organization include extreme heatwaves and weather events, and air pollution. Some indirect effects include reduced food production and supply, and increased vector-borne diseases. Who should be held responsible for these serious consequences, and how?

While these efforts are promising, it is also important to acknowledge that even with drastic emission reductions, there are ongoing consequences of the GHGs already emitted

The Difficulties of Compensating Health Victims of Climate Change

The difficulty of finding justice in these scenarios is rooted in multiple issues including the vast number of people impacted by climate change in diverse ways, the interjurisdictional nature of climate change, the vast number of actors who contribute to climate change (both directly and indirectly), and defining what justice would even mean in this context.

To illustrate issues tied to a climate event with multiple actors and victims, let’s look at an example still fresh in our minds: hurricane Irma and its death toll of 102 people. The storm destroyed over 90 percent of the buildings and vehicles on the island of Barbuda. Estimates for its impact on the world economy range from dozens of billions of dollars to hundreds of billions of dollars. Importantly, its destruction will also be a source of health problems like increased mosquito-borne diseases, increased respiratory problems, increased carcinogens like ammonia and benzene in the environment, and increased bacteria leading to skin infections.

Irma In 2017, hurricane Irma swept across the Caribbean and southern United States, causing severe damage || (Source: Flickr // Hurricane Irma 67 )

The Issue with Causation

Although scientists are uncertain whether climate change will lead to an increase in the number of hurricanes, warmer ocean temperatures and higher sea levels are expected to intensify their impacts.  Therefore, it is not possible to assert that climate change and global warming caused hurricane Irma. This presents difficulty in a legal case where a victim of a similar storm sues for compensation under a tort, given the need to prove both factual and legal causation. If a statutory tort were to be created which only required proof of, for example, “involvement in an activity known to contribute to climate change and global warming”, both legal and factual causation would not be an issue.

However, it would seem an unnecessary burden on court systems to have the vast number of people affected by hurricanes bring forward claims for compensation. This is especially true with the looser causation requirements in a statutory tort, since one of the justifications for tort law – individual justice – requires a finding of responsibility attributing blame to the wrongdoer. Given the difficulties of finding individual justice by attributing responsibility, and the increasing need for compensation for climate change victims, it would seem much more efficient to set up a climate change victim-compensation scheme such as the no-fault regime in Quebec for motor accidents. In this scheme, victims of climate change related losses, such as hurricanes, could apply to such a fund to be compensated for their loss. All actors who participate in an activity known to contribute to climate change would be required to pay into the fund.

Determining the Extent of Responsibility for Each Actor in a “Climate Change Victim Compensation Fund”

We must identify the actors involved and the extent of their contribution to the problem in order to determine the relative responsibility of actors.

It seems impossible to adequately measure how much one individual emitter, such as a single company, contributed to an event such as a hurricane, given that it is impossible to define to what extent climate change contributed to the onset and severity of that hurricane. Our best estimations would be rooted in some contribution index tied to the percentage of overall GHG emissions. This can be modeled after a program like the GHG Protocol.

However, it is important to note that, like hurricanes, many effects of climate change involve merely increasing the frequency and severity of already existing phenomena. It would seem unjust to have the contributors to such a fund paying for the entire cost of certain events if the occurrence of those events was not caused by climate change. It would also make sense to have the State contribute to the fund since the State has historically funded climate related losses, even before the aim was to attribute responsibility through compensation. Additionally, the State holds some responsibility for these losses given that its policies determine the legality, incentives, and disincentives for climate change contributing activities. Lastly, since the State is the representative of citizens and residents in its territory, and consumer decisions drive global warming to an extent, this would also represent our shared contribution to climate change as individuals.

While climate science has some uncertainties, it can help inform the compensation framework. These policy decisions should integrate an interdisciplinary understanding of victim suffering. For example, climate science can help shed light on which losses are climate related by exposing the different pathways through which climate change can affect human health. Economic analysis can help quantify more accurately the financial losses suffered by a victim of a climate change related event. On the other hand, anthropology and sociology could shed light on the magnitude of losses suffered to a group of people’s way of life through the loss of traditional lands due to rising water or drought, which can in turn be tied to health consequences for communities. All these considerations could be under an umbrella analysis that further adds the degree to which the natural disaster was exacerbated because of climate change.

While a compensation scheme may seem no different than the implementation of a carbon tax regime, it is important to remember that the purpose of such a fund would be to compensate victim loss related to climate change. The purpose of a carbon tax regime is to quantify the unaccounted cost of a carbon footprint, and the tax collected is put to a variety of uses, including but not limited to victim compensation.

Drought Communities suffer consequences to their way of life and health due to droughts and loss of land from climate change || (Source: Flickr // EU Civil Protection and Humanitarian Aid Operations )

The Interjurisdictional Nature of Climate Change

Lastly, it is important to remember that climate change is a global phenomenon. Legal and political boundaries do not define or constrain the impacts of climate change. Responsibility for climate change related losses should not be constrained by jurisdiction either. It would seem harsh to require Antigua and Barbuda to pay to rebuild its country themselves when the responsibility for a catastrophe like Irma rests at the world’s feet. While inter-jurisdictional issues complicate compensation and attributing responsibility, it is important that the international community not only concern itself with reducing global warming, but also with developing adequate and concerted efforts to compensate for the inevitable impacts climate change will have on humanity – including those related to human health. A fund such as the one proposed above could eventually be adopted into an international scheme to help better capture responsibility for climate change related losses.

Pouya Dabiran-Zohoory is a Senior Online Editor with the McGill Journal of Law and Health, with a keen interest in sustainable development, specifically with a focus on climate change and its effects on human and animal health. He holds a Bcomm in law and business from Ryerson University. Since he joined the Faculty of Law at McGill University in 2016, he has taken an interest in how the common law, civil law, and regulations address health issues.

Mental Health on the Front-line: Legal Barriers to Psychological Injury Compensation for Public Safety Personnel

Contributed by Souhila Baba and Andréanne Angehrn

Post-Traumatic Stress Disorder

Public Safety Personnel (PSP) such as first responders, firefighters, police and correctional officers, often see their work as a duty, public service, and vocation. But what happens when this line of work becomes the source of an illness? This is the case for Natalie Harris, a paramedic from Ontario, and one of the many PSP who developed Post-Traumatic Stress Disorder (PTSD) due to the traumatic nature of her work. The likelihood of experiencing at least one traumatic event for Canadians is extremely high (74.2% for women and 81.3% for men), and approximately 15% to 24% of the individuals who experience a traumatic event will develop PTSD. However, among PSP trauma is a regular occurrence. PTSD is characterized by symptoms of hyperarousal, avoidance, intrusive memories and numbing, and approximately 9% of Canadians, and more than 21% of PSP workers, will go on to develop PTSD. Living through or witnessing life-threatening events, such as car accidents, physical or sexual assaults, and natural disasters, among others, can be the cause of PTSD. As the occurrence of traumas multiply, so does the risk of developing PTSD. Moreover, PTSD is often associated with other mental health problems such as depression, anxiety disorders, alcohol and/or substance dependence and/or abuse, as well as heightened suicide ideation and attempts. Particularly, more than 50 Canadian PSP took their own lives in 2017 and more than 27% reported having considered suicide in their lifetime. Natalie Harris has not yet returned to work after her PTSD diagnosis, but she is devoted to increasing awareness and legal support for others, who just like her, have to face unimaginable trauma as part of their 9-to-5 job.

The Legislative Issue

A team of experts led by Dr. Nicholas Carleton at the University of Regina conducted a nation-wide study of PSP (defined as dispatchers, correctional workers, firefighters, police officers, paramedics, and RCMP officers) and their experiences of general mental disorder symptoms. From a sample of 5,813 first responders, the results suggested that the prevalence of mental disorders in this cohort was significantly higher than that of the general public. However, because of sampling differences, direct comparisons were not possible. As such, what this study suggested is that this group is potentially at a greater risk of suffering from a mental disorder than the rest of the population. In light of these considerations, certain provinces, notably Alberta, Manitoba, New Brunswick, Ontario, and Saskatchewan have legislated a presumption of causality between the development of a mental disorder, like PTSD, and the workplace for certain professions. Consequently, the process of worker’s compensation for a workplace injury is facilitated and simplified. In Québec, however, there are no such presumptions for first responders, which forces them to go through the regular channel for workplace compensation. This process can become time-consuming, stressful, and expensive.

Firefighters.jpg Public safety personnel, such as firefighters, have a heightened propensity to developing mental health issues, including post-traumatic stress disorder || (Source: Flickr // Heather Paul )

The Administrative and Legal Framework

In Ontario, a first responder who develops PTSD stemming from witnessing or experiencing a distressing event benefits from the presumption that this diagnosis is a workplace injury (s.14, Workers Safety and Insurance Act). As such, if they present to the Workers Safety and Insurance Board (WSIB) with a diagnosis of PTSD by a psychologist or a psychiatrist, their claim should be presumed valid. This is, however, a rebuttable presumption, meaning that the WSIB or the employer can deny a claim if they believe that the PTSD did not in fact stem from the workplace environment. The first responder can then appeal this decision by using an “intent to object” form and requiring the Appeal Resolution Officer (ARO) to reconsider the decision. Up to this point, all of the decisions are administrative, passing directly through the WSIB framework. If the first responder wants to pursue the claim further by appealing to the Workplace Safety and Insurance Appeals Tribunal (WSIAT), then the WISB or the employer will have to show, on a balance of probabilities, that the injury (i.e., the PTSD) did not stem from the workplace. The first responder in this example does not have the burden of proof.

Up to the stage of appeal to the Tribunal Administratif du Travail (TAT), the procedure in Québec  is quite similar in that it is an administrative decision through the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST). However, if a first responder decides to appeal to the TAT, then the burden of proof is on them to show, on a balance of probabilities, that the PTSD diagnosis was in fact a workplace injury to enable them to be compensated through CNESST. This major difference in the two frameworks (between Ontario and Québec) possibly reflects a different understanding of the link between first responders’ daily work and their mental health. Additionally, presumption schemes are not unknown to the Québec framework. Indeed, the Act Respecting Industrial Accidents and Occupational Diseases, which governs CNESST, contains presumptions of causality for various diseases caused by infectious or physical agents (Schedule I). None of the diseases, however, are related to mental health.

The Missing First Responders: The Case of Nurses

An important group of professionals missing from the Ontario legislation (s.14(2)) and the nation-wide study mentioned above, are nurses. Often subject to violence in the workplace, nurses, especially emergency and psychiatry nurses, are at the highest risk (across health sector professionals) of experiencing such violence. Moreover, this type of violence is gendered, with women nurses overwhelmingly being the target of workplace violence. In the United States, workplace violence is the second leading cause of occupational deaths in women. Instances of violence or trauma, even a single event, can lead to the development of mental health issues, particularly PTSD. To counter this, the Registered Nurses’ Association of Ontario (RNAO) is currently lobbying for their profession to be included in the list of first responders benefiting from a presumption of causality regarding PTSD as a workplace injury. Moreover, the government of Ontario issued a news release in December 2017, stating the need to include nurses in the presumption legislation.

fence.jpg Front-line workers including nurses face legal barriers to receiving workplace compensation for mental health injuries || (Source: Flickr // Daniel Steinberg )

In contrast, in Québec, the current framework is burdensome on a particularly vulnerable population. For example, in a specific case, a worker, who was a hospital attendant in training to become a nurse, had been the victim of an incident of violence by a patient. Although the CSST (now CNESST) allowed her to claim compensation for her physical injuries, her claim for reimbursement of medication for her diagnosed PTSD was contested, alleging that she had developed PTSD prior to the violent event. At trial, she presented evidence from ten different doctors, psychiatrists, and psychologists to support her claim. The difficulty in such cases lies in the nature of the illness and its possible comorbidity with other health concerns such as substance use or abuse and depression symptoms. This blurs the line of causality between the workplace trauma and the subsequent diagnosis. Although in this case her claim eventually succeeded, the process of the reviews of administrative decisions by the TAT, the gathering of evidence, the hiring of legal representation, and the mental strain of testimony and trial procedure may have been avoided if there existed a presumption in the law.

Instances of violence or trauma, even a single event, can lead to the development of mental health issues, particularly PTSD.

While many are calling for a nation-wide, cohesive framework to protect the front-liners who put their security and mental health on the line daily to protect us, conversation around this issue has not led to public action. Should the Québec framework allow for a presumption for all workers who suffer from PTSD as is the case in Manitoba? Or should all psychological disorders benefit from such a presumption as is the case in Saskatchewan? Last year, the Report of the Standing Committee on Public Safety and National Security recommended the creation of a Canadian Institute for Public Safety Officer Health Research and the elaboration of a national strategy regarding operational stress injuries. Undeniably, we have yet to see the results and possible action plans recommended by this report. Meanwhile, workers all around Canada, like Natalie Harris, have to face ambiguous and strenuous legal procedures before being able to focus on their ultimate duty: their own recovery, mental health, and eventual journey back to doing the work that they love.

Andréanne Angehrn holds a BA (Honours) with distinction in psychology from Concordia University. She will join Dr Nicholas Carleton’s team in the fall as a graduate student in clinical psychology at the University of Regina. Andréanne is enthusiastic about providing care and support to those affected by trauma, and about extending the scope of research to minorities. Recently she presented her undergraduate thesis that focused on circadian autonomic functioning and stress in children at the American Psychosomatic Society’s annual conference in Louisville, KY under the supervision of Dr Jennifer J McGrath. 

Souhila Baba is a Senior Online Editor with the McGill Journal of Law and Health with a keen interest in mental health, access to health services, and access to justice. She holds a BSc with distinction in Psychology, with a minor in Political Science from Concordia University. Since she joined the Faculty of Law at McGill University in 2016, she has been able to expand her interests in policy, technology, science, and the law, and the important contributions that women make to these fields and their intersections. Souhila is currently interning with the McGill Research Group on Health and Law at the CIUSSS du Centre-Ouest-de-l’Île-de-Montréal under the supervision of Me. Nathalie Lecoq.

The authors would like to thank Me. Cristina Toteda for her guidance and insight on the practical and real-world implications of the occupational safety and health framework in Québec. Souhila would further like to thank Prof. Derek J. Jones for allowing her to explore this topic further through a research paper in the course “Law and Psychiatry”.

Mind Protection: Data Privacy Legislation in the Age of Brain-Machine Interfaces

Contributed by Dr. Anastasia Greenberg

Brain-machine interfaces (BMIs) are a class of devices that allow for direct communication between a human brain and a device such as a computer, a prosthetic limb, or a robot. This technology works by having the user wear an electroencephalography (EEG) cap that extracts brain activity, in the form of brain waves. These waves are then processed and interpreted by advanced software to “decode” the brain’s intended actions. These intended actions are translated into a command sent either to a computer or a mechanical device – the gadget options are seemingly infinite. With the growth of big data analytics and artificial intelligence (read an MJLH article on this issue), the proliferation of BMIs pose a unique legal and ethical risk for personal data privacy and security given the highly intimate nature of the information that BMIs gather.

Recent Advances in BMIs

The major limiting factor of the widespread application of BMIs is the ability to accurately interpret a person’s thoughts from their recorded brain activity. Major headway has been made in the last decade. A highly publicized example includes a quadriplegic patient with an implanted brain chip (instead of a non-invasive EEG cap) who was able to check emails, turn lights on and off, and play video games using his thoughts alone. A newer version of this chip, developed by a company called Braingate, is currently undergoing clinical trials. Similarly, such developments have potentially life-changing heath care implications for locked-in syndrome patients who have lost ability to communicate due to muscle paralysis. BMIs allow locked-in patients to communicate using their thoughts.

BMI1 Brain-machine interfaces allow for control of computers and mechanical objects using thoughts || (Source: Flickr // Ars Electronica )

The applications of BMIs extend beyond health care into the consumer context. A company called Emotiv Lifesciences created a sophisticated driving simulator that allows for thought-controlled navigation through a virtual course. Another company called Muse offers an enhanced meditation experience by providing feedback to allow users to modulate their own brain waves.

BMI technology can also be used for direct brain-to-brain communication. In 2013, researcher Dr. Rajesh Rao sat in his laboratory at the University of Washington wearing an EEG cap and faced a computer screen displaying a simple video game. The object of the game was to fire a canon at a target by pressing a key on a keyboard at the right moment. Rao did not touch the keyboard and instead used his thoughts to imagine moving his right hand to press the key. On the other end of the university campus, Dr. Andrea Stocco sat in his own laboratory with a Magnetoencephalography (MEG) stimulation coil (which is used to activate specific areas of the brain) placed over the part of his motor cortex that controls hand movements. Stocco did not have access to the video game display in front of him. Every time that Rao imagined firing the canon, a command would be sent via the internet to trigger the MEG stimulation over Stocco’s head, forcing his finger to press a keyboard key which would then fire the canon at the target on Rao’s computer screen. Therefore, Rao was able to control Stocco’s movements through the web with his thoughts.

Data Privacy in Canada

In the age of big data, personal information in the form of search engine entries, online shopping activity, and website visits, when aggregated, can reveal highly accurate details about a person’s life. This reality has raised public concerns over data privacy in Canada. As BMIs increasingly enter the market and join the “internet of things”, organizations will for the first time, have access to the most personal information yet – information obtained directly from the brain.

In Canada, the protection of personal data, such as brain data, can be captured by a complex web of privacy legislation. Although the Canadian Charter of Rights and Freedoms does not explicitly mention a right to privacy, it is protected to some degree by sections 7 (liberty) and 8 (unreasonable search and seizure). The Privacy Act governs the handling of personal information by the federal government, while the Personal Information and Electronic Documents Act (PIPEDA) is a federal statute that applies to businesses in Canada that collect, use, and disclose personal data for commercial purposes. PIPEDA was enacted in 2000 in attempt to harmonize data privacy standards across the country and to strike a balance between economic benefits stemming from private data use and respect for individual privacy. To add extra complexity, provinces and territories can enact their own data privacy legislation which supersede PIPEDA if the federal government considers the legislation to be “substantially similar” to PIPEDA.

BMI2.jpg Privacy legislation in Canada and abroad aims to protect personal information, such as health-related data || (Source: Flickr // luckey_sun )

PIPEDA has been criticized heavily since coming into force for its feeble enforcement mechanisms. As a result, in 2015, amendments to PIPEDA introduced a requirement to notify the Privacy Commissioner of any data privacy breach creating significant harm to an individual, including bodily harm, reputational harm, and identity theft. Failure to notify can result in fines up to $100,000. Furthermore, the Office of the Privacy Commissioner provided guidance on section 5(3) of PIPEDA which prohibits inappropriate collection, use, and disclosure of personal data. The so called “No-Go Zones” under section 5(3) prohibit activities such as: the processing of data in a way that would lead to unethical or discriminatory treatment, and data uses that are likely to cause significant harm. Significant harm means, “bodily harm, humiliation, damage to reputation or relationships, loss of employment, business or professional opportunities, financial loss, identity theft, negative effects on one’s credit record and damage to or loss of property”. These changes can bolster privacy protection of brain data.

What remains intact following the amendments is an insidious provision that leaves the door ajar for government surveillance. Section 7(3)(c.1) is a blanket provision that mandates private entities to disclose personal information at the request of the government in the name of national security and law enforcement. Given the rich information that brain data contains, it is not evident how the government may decide to use such unfettered access in its activities.

Data Privacy Internationally

Europe is known to have the world’s highest data privacy standards. The European Union Data Protection Directive (Directive 95/46) is interpreted in light of the Charter of Fundamental Rights of the European Union, which specifically recognizes personal data protection as a human right. Article 8(1) of the directive provides that member states adopt prohibitions on processing sensitive data including health-related data, which brain data may indeed fall under. However, much like PIPEDA, the desire to balance organizational interests with privacy protection is reflected in exceptions to this prohibition if consent is obtained from the data subject, if the data processing is in the public interest, or for certain medical and health care purposes.

In May of 2018, the General Data Protection Regulation (GDPR) will officially replace Directive 95/46. One of the prominent changes from Directive 95/46 relates to the widening of jurisdiction, as the GDRP will apply to all companies processing the personal data of individuals located within the EU, irrespective of where a company is located. The effect of this change will likely force non-EU companies, including Canadian companies, to comply with the GDPR to allow for cross-border data transfers. The strategy behind this new approach is to ensure that Europe lays the ground rules for the international data privacy game.

As BMIs increasingly enter the market and join the “internet of things”, organizations will for the first time, have access to the most personal information yet – information obtained directly from the brain.

Other major changes that will be introduced with the GDRP are the inclusion of the “right to access”, in which a data subject will be able to request copies of their personal data, and the “right to be forgotten” in which the data subject can request for their personal data to be permanently erased. Just as BMIs are introducing highly intimate data into the mix, the GDRP may offset some of the increased privacy risks by putting more control in the hands of the data subject and by attempting to coerce international privacy standards.

The Future of Privacy

The promise of brain-machine interfaces is hard to overstate. BMIs can already restore lost abilities such as vision, hearing, movement, and communication.  Beyond restoration, BMIs allow for super-human enhancement in the form of control over virtual environments, manipulation of robots, and even transmitting linguistic messages without vocalizing speech. The effective implementation of BMIs speaks directly to the effectiveness of neural decoding: the technology’s ability to “mind read” – albeit currently in crude form. Organizations that create BMIs and control its software will have access to rich brain data. Governments will desire access to that data. The EEG data in question are as unique as one’s fingerprints, providing biomarkers for the prediction of individual intelligence, and predispositions to neurological disorders such as depression, Alzheimer’s disease, and autism. The ongoing development of data privacy legislation in Canada and abroad will shape future control of the mind’s personal bits.


Anastasia Greenberg is a second-year student in the B.C.L/LL.B. program at McGill University’s Faculty of Law and is the Executive Online Editor of the McGill Journal of Law and Health. Anastasia holds a PhD in Neuroscience from the University of Alberta.