AIDS in Canada

HIV/AIDS POLICY & LAW REVIEW

Protection against discrimination

based on HIV/AIDS status in Canada:

the legal framework

Respecting, protecting, and fulfilling the human rights of people living with, and vulnerable

to,HIV/AIDS has been recognized as an essential element of ethical and effective responses

to the epidemic. Human rights law provides one critical tool for implementing a human

rights–based approach to HIV/AIDS. Freedom from discrimination is a foundational human

rights principle, and is a touchstone of both international and domestic human rights law.

This article examines the ways in which Canadian law currently protects people against discrimination

based on HIV/AIDS status.The article also reviews the equality rights provision

of the Canadian Charter of Rights and Freedoms; federal, provincial, and territorial anti-discrimination

statutes and policies; and some of the key cases that have applied and developed

these legislative protections. Finally, the article looks at the issue of remedies for discrimination

under Canadian law. (Other forms of discrimination relevant to people living with

HIV/AIDS – specifically, discrimination based on grounds relevant to people from groups disproportionately

affected by HIV/AIDS-related stigma – will be analyzed in similar detail in a

future issue of the Review.)

Introduction

More than 20 years after the emergence

of HIV/AIDS, stigma and discrimination

remain a reality for

people living with the disease and for

groups associated with the epidemic,

particularly those who are socially

and economically excluded. A recent

survey of Canadians’attitudes about

HIV/AIDS yielded mixed results.1

About 85 percent of respondents said

they could be friends with someone

who has HIV/AIDS, although one in

ten still believes that people infected

with HIV through sex or drug use

have got what they deserve. But

when asked about their comfort with

a person with HIV/AIDS in various

scenarios, a disturbing picture

emerges.

Almost one-third of respondents

indicated they would not be comfortable

working in an office with someone

who is HIV-positive or shopping

in a grocery store whose owner is

HIV-positive. Only 55 percent of

respondents said they would be somewhat

or very comfortable if their child

were attending a school where one of

the students is known to be HIV-positive.

And half of respondents said that

people living with HIV/AIDS should

not be allowed to serve the public in

positions such as dentists or cooks.

Smaller-scale research projects in

recent years have also reported that

people living with HIV/AIDS continue

to experience, and to fear, discrimination

based on their serostatus

or diagnosis of AIDS.2

In light of such findings, and of

experiences regularly recounted by

people living with HIV/AIDS, what

protection and redress does the law in

Canada provide for people who experience

HIV/AIDS-related discrimination?

Canada is a federal state consisting

of a federal government, ten

provinces, and three territories, with

legislative authority over various

spheres divided between these different

levels of government. As a result,

protection against HIV/AIDS-related

discrimination is found in several different

laws, applicable at different levels

and to different actors or situations.

Constitutional equality rights protect

individuals against discrimination

by government, at whatever level,

throughout the country. In addition, at

both the federal level and in every

province and territory, human rights

statutes prohibit discrimination not

only by governments but also by private

actors (eg, private persons, corporations),

in areas such as:

employment; services, goods and

facilities; contracts; accommodation;

and membership in unions or other

associations.3

In almost every jurisdiction, these

anti-discrimination statutes also create

a commission to receive and investi