Equality Rights for People with AIDS: Mandatory Reporting of HIV Infection and Contact Tracing

Equality Rights for People with AIDS: Mandatory Reporting

of HIV Infection and Contact Tracing

William F. Flanagan*

This paper focusses on one critical aspect of
the AIDS epidemic where the American re-
sponse has demonstrated a greater sensitivity
to the stigma attached to AIDS and to the
privacy interest of the individual: anony-
mous HIV antibody testing and contact trac-
ing. Using the paradigmatic examples of the
approaches in Ontario and New York, the
author concludes, through an analysis using
section 15 of the Charter, that the American
approach of anonymous HIV antibody test-
ing and physician-centred contact tracing is
both a more sensitive and constitutionally le-
gitimate response to the AIDS epidemic.

Cet article traite de
‘administration ano-
nyme des tests de s6ropositivit6 et du d6pis-
tage des r~seaux de contacts. I1 montre
comment les Etats-Unis ont d6montr6 une
plus grande sensibilit6 au droit A la vie priv~e
des individus et aux stigmates qui sont at-
taches aux SIDA. Lauteur utilise comme pa-
radigmes les approches de
‘Ontario et de
New-York. Apr6s une analyse bas~e sur l’ar-
tide 15 de la Charte, il conclut que les pra-
tiques am~ricaines d’anonymit6 des tests et
de d6pistage par les m6decins des r6seaux de
contacts constituent une reaction A la fois
plus humaine et, au plan constitutionnel,
plus lgitime.

*Assistant Professor, Faculty of Law, McGill University. This article was written in partial
fulfillment of an LL.M. degree at Columbia University during the author’s tenure there as an
Associate-in-Law. Special thanks to Professor Frank Grad of Columbia University School of
Law, who supervised this paper, and Hester Lessard, Assistant Professor, Faculty of Law, Uni-
versity of Victoria, for her continual support and encouragement.

McGil1 Law Journal 1989
Revue de droit de McGill

1989]

ANONYMOUS HIV ANTIBODY TESTING

Synopsis

Introduction

I.

Stigma, Metaphor, and Moral Meaning – What does AIDS Signify?
A. Historical Construction of Disease: Cancer and Venereal Disease
B. AIDS: The “Gay Plague”
C. AIDS: The War Against the Other
D. AIDS as Punishment
E. The Morality of AIDS

II. HIV Testing, Reporting, and Contact Tracing in Canada

A. Mandatory Reporting Requirements in Canada
B. The Ontario Health Protection and Promotion Act
C. Information Reported
D. Powers of the Medical Officer of Health
E. Contact Tracing
E Prejudicial Effects of Mandatory Reporting
G. Opposition to Mandatory Reporting

III. Constitutional Analysis of Mandatory Reporting and Contact Tracing

A. Equal Protection under the American Constitution

1.
2.
3.

2.

HIV Disease as a Suspect Class
Mandatory Reporting and Privacy
American Constitutional Analysis of HIV Disease and the
Charter

1.

B. The Charter: Is HIV Disease a Physical Disability under s. 15?
American Precedent on Physical Disability, Infectious
Diseases, and HIV
HIV Disease and Physical Disability under the Charter
a. An Infectious Disease as a Physical Disability
b. Asymptomatic HIV Infection as a Physical Disability

C. Structure of Review under s. 15
D. The Content of s. 1 Analysis

1.
2.
3.

Does Mandatory Reporting Protect Public Health?
Does Contact Tracing Protect Public Health?
Alternative Contact Tracing Programs

E. Conclusion

*

*

*

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[Vol. 34

Introduction

AIDS has become a focal point for the acute social tensions that have
long surrounded issues of disease, sex, and class. These profound fault lines
of contemporary society have converged on the AIDS crisis and deeply
influenced our understanding of and response to AIDS. Yet it is times of
adversity that test our capacity for justice and compassion. How we respond
to this complex social crisis will not only determine the course of this epi-
demic, but will as well reveal much about our ability to address these broader
social tensions.

As the AIDS epidemic has gained greater force over the seven years
since the disease was first identified,’ it can be said with fairness that to
date the response of Canadian lawmakers and health professionals has been
moderate and informed. In particular, although Canada faces an epidemic
in many ways as severe as that in the United States, 2 Canada’s response has
generally been to avoid many of the dramatic and questionable examples
of American policy regarding AIDS. For example, to date the Government
of Canada has refrained from following the American precedent of initiating

‘AIDS was first identified in 1982 by the Centers for Disease Control in Atlanta, Georgia.
See Institute of Medicine-National Academy of Sciences, Confronting AIDS: Directions for
Public Health, Health Care, and Research (Washington, D.C.: National Academy Press, 1986)
at 37 [hereinafter Confronting AIDS].

2Although the number of AIDS cases in Canada is proportionally lower than in the United
States (the rate for 1,000,000 is 69.8 in Canada and 263.1 in the United States), the spread of
the disease in Canada has been devastating and rapid. As of 23 January 1989, a total number
of 2,337 cases of AIDS had been reported to the Canadian Federal Centre for AIDS, over half
of whom have died. It is estimated that as of September 1987 about 30,000 Canadians were
infected with the Human Immunodeficiency Virus (“HIV”), the generally accepted cause of
AIDS. Within the group between 20-49 years of age, AIDS has become the fourth leading cause
of death in Canada. By 1992, AIDS could become the leading cause of death within this age
group. See Royal Society of Canada, AIDS: A Perspectivefor Canadians- Summary Report and
Recommendations, vol. 1 (Ottawa: Royal Society of Canada, 1988) [hereinafter AIDS: A Per-
spective for Canadians] and Federal Centre for AIDS, Report for 1988 (Ottawa: Supply &
Services Canada, 1989) at 30.

As of 4 July 1988, a total of 66,464 AIDS patients had been reported in the United States,
over half of whom have died. Between one and 1.5 million Americans are infected with HIV.
By 1992, an estimated 365,000 Americans will have developed AIDS. See W. Heyward & J.
Curran, “The Epidemiology of AIDS in the U.S.” (1988) 259:4 Scientific American 72.

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ANONYMOUS HIV ANTIBODY TESTING

mandatory Human Immunodeficiency Virus (“HIV”) antibody testing3 of
military personnel,4 state department officials, 5 and applicants for perma-
nent residency status. 6 The provincial governments have also chosen not
to follow the example set by the cities of New York and San Francisco, both
of which have closed local gay bathhouses. 7 Most importantly, Canada’s
national health care system spares Canadians one of the most pressing and

3The evidence is now “scientifically conclusive” that HIV is the cause of AIDS, even though
the pathogenesis of HIV infection (how the organism causes disease) is still incompletely
understood. AIDS is primarily a disease of the body’s immune system. Individuals infected
with HIV exhibit a progressive immunologic compromise which leaves the body highly sus-
pectable to life threatening opportunistic infections. Blood tests have been developed which
can detect the presence of HIV antibodies; all individuals who carry HIV antibodies (i.e. their
blood tests seropositive for the HIV antibody) are assumed to be infected with HIV and, for
practical purposes, capable of transmitting the virus. See generally, Confronting AIDS, supra,
note 1 at 37-49, and Institute of Medicine-National Academy of Sciences, Confronting AIDS:
Update 1988 (Washington, D.C.: National Academy Press, 1988) at 33-35 [hereinafter Con-
fronting AIDS: Update 1988].

Until recently, it was believed that not all HIV infected individuals would develop AIDS,
however new evidence indicates that the great majority of HIV infected persons will eventually
progress to AIDS in the absence of effective therapy to slow or halt the infection’s progression.
It is estimated that as many as 100 per cent of HIV infected persons will develop AIDS within
13 years after initial infection [Confronting AIDS: Update 1988 at 35-36]. Other studies have
found that the average incubation period, the time from infection to the development of AIDS,
is between seven to eight years, and anywhere from 30 to 75 per cent of individuals will progress
to AIDS within six years. A San Francisco study found that only 20 per cent of HIV-infected
people remained completely asymptomatic after seven years and two months of infection: “It
is increasingly being recognized that this percentage [of people who progress to AIDS] may be
essentially 100 per cent, with the only uncertainty being the distribution of time to the de-
velopment of disease.” See generally R.M. May, R.M. Anderson & S.M. Blower, “The Epi-
demiology and Transmission Dynamics of HIV-AIDS” (1989) 118:2 Dedalus 163 at 169.

Although there is no known cure for AIDS, some treatments for HIV infection are now
available, notably azidothymidine (“AZT”) which has proven effective in slowing the devel-
opment of the disease. Numerous drug trials are presently underway testing possible AIDS
therapies. See R. Yarchoan, H. Mitsuya, & S. Broder, “AIDS Therapies” (1988) 259:4 Scientific
American 110.

Before the progressive nature of HIV infection was well understood, researchers commonly
believed that “full-blown AIDS”, “AIDS-related complex” (“ARC”), and “asymptomatic HIV
infection” were distinct medical conditions. It is now evident that HIV infection is a “contin-
uum of conditions ranging from the acute, transient mononucleosis-like syndrome associated
with seroconversion, to asymptomatic HIV infection, to symptomatic HIV infection, and
finally, to AIDS, a spectrum that encompasses a great variety of clinical symptomatology.”
[Confronting AIDS: Update 1988, ibid., at 37]. In the opinion of Institute of Medicine of the
Academy of Sciences in Washington D.C. and the Atlanta Centers for Disease Control, the
previous distinction made between AIDS and ARC “is no longer useful, either from a clinical
or a public health perspective, and that HIV infection itself should be considered a disease”
[ibid. at 37]. Because a majority of HIV-infected individuals show some evidence of progressive
immunodeficiency, it is now clear that AIDS is only “end-stage HIV infection” [ibid.] and
many researchers now speak of “HIV disease” as an umbrella term to describe the progression
from HIV infection to AIDS. In this paper the term “HIV disease” is used to describe the

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tragic aspects of the AIDS epidemic in the United States –
the lack of
adequate and humane medical care for people with AIDS.8 Given the pro-
foundly different responses to the AIDS epidemic in the two countries, a
divergence which may reveal something about the elusive yet distinctive
Canadian political and social compact, it can be asked whether Canada has
only to learn from the excesses of its neighbour to the south or whether

entire continuum of conditions produced by HIV infection.

Viewing all HIV infection as a disease is important because it may eventually be amenable
to early treatment [ibid. ]. The evolving concept of HIV disease also has critical legal and public
health ramifications as it becomes more evident that all HIV infection (including asymptomatic
infection) constitutes a physical disability (as argued below in Part III). Both for the purposes
of treatment and public health, rather than basing our understanding of AIDS on “arbitrary
definitions of when ‘disease’ begins”, all HIV infection should be considered a disease. [Con-
fronting AIDS: Update 1988, ibid., at 38]. See also G.H. Friedland, “Clinical Care in AIDS
Epidemic” (1989) 118:2 Dwdalus 59 at 65 where the author states: “It is essential to view HIV
infection as a chronic viral illness progressing inexorably over time.”

HIV disease, although infectious, is not highly contagious or easily transmitted. HIV infection
is primarily spread in only three ways: transfusion of blood (the screening of blood donations
has virtually eliminated this route of transmission), intravenous drug use (the sharing of un-
sterilized needles), and sexual transmission (both homosexual and heterosexual sexual activity
may transmit the virus –
the use of condoms significantly reduces the risk of transmission).
There is no evidence that health care workers or family members caring for AIDS patients are
at any increased risk of HIV infection. See generally G. Friedland & R. Klein, “Transmission
of the Human Immunodeficiency Virus” (1987) 317 New Eng. J. Med. 1125.
4All recruits to the American military are currently required to submit to an HIV antibody
test and those who test positive are ineligible for military service. See A.R. Rubenfeld, ed.,
AIDS Legal Guide 10-1 to 10-6 (2d ed. 1987).

According to Major-General R.W. Fassold, the Canadian Surgeon-General, the Canadian
military does not engage in HIV screening for recruits. Condoms have also always been available
free of charge to military personnel, both for the prevention of venereal disease and the trans-
mission of HIV. See “How our military deals with AIDS” The Toronto Star (3 May 1987) B5.
See also Canadian Bar Association – Ontario, “Report of the Canadian Bar Association –
Ontario Committee to Study the Legal Implications of Acquired Immunodeficiency Syndrome
(AIDS)” (Toronto: The Association, 25 April 1986) (Chairn T. Tremayne-Lloyd) at 30-31 [here-
inafter CBA Report]. The Report did not recommend the introduction of HIV screening in
the military.

51n Local 1812, Am. Fed’n of Gov’t Employees v. United States Dep’t of State, 662 E Supp.
50 (D.C. Cir. 1987), the Court denied a motion for a preliminary injunction to prevent the
United States Department of State from screening employees and prospective employees for
HIV infection. The Department’s primary justification was to protect employee health by
preventing infected individuals from being posted to parts of the world with inadequate medical
facilities.

6All aliens who apply for permanent residence in the United States are required to undergo
an HIV antibody test and those who test positive are denied permanent residence status. See
Rubenfeld, ed., AIDS Legal Guide, supra, note 4, 11-3 to 11-4.

Although the Canadian federal government has considered implementing mandatory HIV
tests for applicants for permanent residency [“Government Strongly Considering Testing of
All Immigrants for AIDS”, The [Toronto] Globe and Mail, (7 November 1987) Al], and the
CBA Report, supra, note 4 at 37-9 recommended the implementation of such tests, the federal

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ANONYMOUS HIV ANTIBODY TESTING

more profound insights can be derived from the American experience with,
and reaction to, AIDS.

This paper focusses on one critical aspect of the AIDS epidemic where
the American response has demonstrated a greater sensitivity to the stigma
attached to AIDS and to the privacy interest of the individual: anonymous

government to date has refrained from doing so. Although the federal government does not
require mandatory tests, if an HIV infected applicant offers information of his HIV status, he
will be considered inadmissible for the purposes of s. 19(1) of the Immigration Act, 1976 S.C.
1976-77, c. 52. See T. Ducharme, “Preparing for a Legal Epidemic: An AIDS Primer for Lawyers
and Policy Makers” (1988) 26 Alta. L. Rev. 471 at 481.

The World Health Organization of the United Nations strongly opposes HIV-related restric-
tions on international travel and immigration, noting that this will do little to reduce the spread
of HIV. As Dr. Mann, WHO Director of the Special Programme on AIDS noted in his address
to the World Summit of Ministers of Health on Programmes for AIDS Prevention (26-28
January 1988), “[u]nfortunately, as anxiety and fear cause some to blame others, AIDS has
unveiled thinly disguised prejudices about race, religion, social class, sex and nationality. As
a result, AIDS now threatens free travel between countries and open international commu-
nication and exchange.”
7See J. Rabin, “The AIDS Epidemic and Gay Bathhouses: A Constitutional Analysis” (1986)
10 J. of Health Politics, Policy and Law 729, and S. Collier, “Preventing the Spread of AIDS
by Restricting Sexual Conduct in Gay Bathhouses: A Constitutional Analysis” (1985) 15 Golden
Gate U.L. Rev. 301.

In City of New York v. New Saint Mark’s Baths, 130 Misc. 2d 911, 497 N.Y.S. 2d 979 (Sup.
Ct. 1986), and State of Georgia ex rel Slaton v. Fleck & Assocs., 622 E Supp. 256 (D. Ga. 1985),
bathhouses allegedly “used predominately as a meeting place for males and.., continuing and
frequent incidents of lewdness, oral and anal sodomy, and sexual contact between various male
patrons …
” [Slaton, ibid. at 257], were closed for the asserted purpose of reducing the spread
of AIDS. See also Dr M.E Silverman, “Introduction: What We have Learned”, in What to Do
About AIDS: Physicians and Mental Health Professionals Discuss the Issues, L. McKusick ed.,
(Berkeley: University of California Press, 1986) 1 where Dr. Silverman, former director of the
San Francisco Department of Public Health, discusses the reasons for his decision in 1984 to
close the gay bath houses in San Francisco, describing them as “an environment that encourages
and facilitates multiple unsafe contacts, which are an important factor in the spread of this
deadly disease” [at 7].

Closing bathhouses may not result in any decrease of unsafe sexual activity; only the locale
will probably change. Further, closing bathhouses may eliminate the important educational
role that bathhouses can serve in encouraging their patrons to practice safer sex.

8Although some states ban HIV testing by health insurance companies, in the United States
most private health insurance companies require an HIV test for all applicants. Those who
test positive are denied insurance. Health insurance is often provided as a job benefit to all
employees without any screening tests, however people with AIDS often lose their jobs or are
unable to continue working and as a result lose their health insurance coverage.

People with HIV disease who are without private health insurance often encounter a hostile
and inefficient public benefits system. Although they may be eligible for Medicaid, applications
for assistance can take as long as three years to be processed, Medicaid coverage often excludes
experimental AIDS treatments, and public hospitals are generally inferior to private hospitals.
See generally, J. Perkins and R.T. Boyle, “AIDS and Poverty: Dual Barriers to Health Care”
(1986) 19 Clearinghouse Rev. 1283 at 1287-90; “Health Benefits: How the System Is Responding
to AIDS” (1988) 22 Clearinghouse Rev. 724; and Rubenfeld, ed., AIDS Legal Guide, supra,

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[Vol. 34

HIV antibody testing. Anonymous tests are generally available throughout
the United States, thereby ensuring that the test results will remain confi-
dential and that people will not be discouraged from determining their HIV
antibody status for fear of possible disclosure.

Encouraging individuals to determine voluntarily their HIV antibody
status is a vital factor in reducing the spread of infection, and this objective
is seriously impaired if confidentiality is not guaranteed. Because most peo-
ple at risk for HIV infection are either gay or intravenous (“IV”) drug users,
unless they can be assured that the results of HIV tests will remain confi-
dential, they will be reluctant to determine their HIV status. Not only is
there a legitimate fear that this information could be used to identify them
as members of a vulnerable and unpopular sub-group, but there is also the
fear that the information could be used to discriminate against them because
they are likely carriers of an infectious and as yet incurable disease. 9 Anon-
ymous testing is not only the best way to ensure confidentiality, it may be
the only way to guarantee confidentiality in a complex system of modern
health care where patients often lack any significant control over disclosure
of their medical records.

In addition to the wide-spread availability of anonymous testing in the
United States, contact tracing, a means by which public health officials seek
to identify and locate susceptible contacts of an individual known to be
infected with a communicable disease, has not been the central focus of
American efforts to prevent and control the spread of HIV infection. Most
states have concluded that aggressive, comprehensive state-supervised con-
tact tracing for HIV infection would operate as a powerful disincentive to
the early testing and detection of infectivity, thereby actually increasing the
risk of the spread of HIV infection rather than containing it. Instead, public

note 4, “Public Benefits” 6-1 to 6-4. See also W. Mariner, “Access to Health Care and Equal
Protection of the Law: The Need for a New Heightened Scrutiny” (1986) 12 Am. J. of Law
and Medicine 345, and L. Ozenberger, “Medical Indigency and Economic Scarcity: Are Egal-
itarian Access to Care and Cost Control Mutually Inconsistent Goals?” (1987) 33 Loy. L. Rev.
113.

As in the United States, HIV screening is, however, routinely done for applicants for life
insurance in Canada and those testing positive are denied life insurance. See “AIDS test required
by insurance firms for large policies” The [Toronto] Globe and Mail (13 November 1987) AI-
A2.

9The reports of AIDS-related discrimination are too numerous to provide a detailed account
here. Ron Lentz, a nurse at the Toronto Western Hospital was fired once it was discovered he
suffered from AIDS. [“Nurse with AIDS irks job recruiters” The [Toronto] Globe and Mail
[29 January 1988) A12.] Eric Smith, a teacher in Nova Scotia, was barred from the classroom
when an employee in his doctor’s office disclosed his HIV status. [“Exposed: revelation of
AIDS connection leaves a Nova Scotia teacher in limbo” The [Toronto] Globe and Mail (3
October 1987) D2.] See generally, T. Ducharme, “Preparing for a Legal Epidemic: An AIDS
Primer for Lawyers and Policy Makers”, supra, note 6 at 484.

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ANONYMOUS HIV ANTIBODY TESTING

health authorities in the United States have largely reached a consensus
that a less invasive form of contact tracing more effectively fulfills the im-
perative of public health: seropositive individuals are usually encouraged
to perform contact tracing themselves or with the aid of their physician.

Contact tracing is thus not usually performed by state public health
officials, and no state records of seropositive individuals are maintained. It
is believed that this less invasive procedure filfills the need to inform con-
tacts who may not know they are at risk and, at the same time, ensures the
confidentiality of HIV antibody test results.

This situation contrasts sharply with the general practice in Canada
where in many provinces anonymous HIV testing is prohibited by law. In
the most extreme case, the Ontario Health Promotion and Protection Act,
198310 requires that the results of all positive HIV tests be reported to the
provincial Chief Medical Officer of Health with both the name of the in-
dividual infected and his or her “risk group” category, that is, whether the
reported person has engaged in sex with a “high risk person” (homosexual
or IV drug user) or is an IV drug user. The government thus maintains
records of seropositive individuals, indicating those who are homosexual
or IV drug users. If health care providers fail to report all findings of HIV
seropositivity to the government, they are liable for prosecution under the
Act.

At the same time, health care providers in Ontario are prohibited from
disclosing the HIV status of their patient without the latter’s consent to
anyone other than the Medical Officer of Health, even if they believe that
their patient presents a significant risk of infection to a contact. Only the
provincial public health officer may proceed with contact tracing in the
absence of the patient’s consent.

Although notifying individuals who are unaware that they may be at
risk for HIV infection is closely related to the public health objective of
preventing the spread of HIV, a state-supervised contact tracing program is
both the least effective and most intrusive means to achieve this objective.
The violation done to patient confidentiality by requiring the mandatory
reporting of HIV infection to the government only serves to discourage
individuals from determining their HIV status, thereby increasing the risk
of inadvertent HIV transmission. The objective behind contact tracing can
still be achieved, and a greater degree of patient confidentiality can be en-
sured, if the physician is given the primary responsibility to inform contacts.
Ontario, unique among the Canadian provinces in this regard, has chosen

10S.0. 1983, c. 10, as. am. S.O. 1984 c. 55, s.227; and S.O. 1987, c. 18 and c. 32 [hereinafter

Health Promotion and Protection Act].

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a far more invasive and ultimately less effective means to reduce the spread
of HIV infection. l

In order to understand the importance of anonymous HIV testing and
the threat to public health posed by an aggressive, comprehensive, state-
supervised contact tracing program for HIV infection, it is first necessary
to investigate the stigma and moral meaning that has been ascribed to AIDS
in our imagination, a subject addressed in Part I. Preventing the spread of
HIV infection requires a sensitive and informed understanding of the com-
plex social response to disease and contagion; only then can effective pre-
ventive measures be designed. This paper will then proceed in Part II with
an examination of the present practice regarding the mandatory reporting
of HIV infection and contact tracing in Ontario, which has the most actively
enforced HIV contact tracing program in Canada. Part III will consider the
public health ramifications and constitutional implications of this policy.
Whether seropositive individuals are a protected class under either the
American or Canadian Constitution will be considered, and, in particular,
the argument will be made that HIV infection constitutes a physical disa-
bility under s. 15 of the Charter of Rights and Freedoms.12 The paper will
then conclude with a s. 1 analysis of a reporting and contact tracing program,
and present the argument that such a program does not further the legitimate

“A HIV mandatory reporting and contact tracing program very similar to the Ontario
program was recently the subject of Proposition 102, a 1988 referendum sponsored by Con-
gressman William Dannemeyer of California and rejected by California voters. The proposal
would have required California physicians to report all findings of HIV infection with iden-
tifiers, and health officials were to be responsible for an aggressive and comprehensive contact
tracing program. Anonymous HIV testing would have become illegal.

Proposition 102 was widely criticized by the medical establishment which has long feared
that mandatory reporting and contact tracing could deter voluntary HIV testing. Frank Young,
Commissioner of the Federal Drug Administration, called Proposition 102 a “terrible thing”.
Dannemeyer, its sponsor, charged that “opponents of this measure, supposedly the medical
community, have gone out of their way to link arms with left-wing ideologues at the American
Civil Liberties Union, the National Gay Rights Advocates and, inevitably, the University of
California at Berkeley.” See “California’s Anti-AIDS Quackery” The New York Times (5 October
1988) 1:33, and W. Dannemeyer, Letter to the Editor, The New York Times (31 October 1988)
1:18.

The Ontario program, rather than a measured and responsible response to the threat of
AIDS, is in fact in the company of the Dannemeyer Proposition 102, which in turn was inspired
by the earlier Lyndon LaRouche Proposition 64, defeated in 1986, which would have required
quarantine for the 250,000 Californians infected with HIV.

‘2Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being

Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11. [hereinafter Charter]

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ANONYMOUS HIV ANTIBODY TESTING

public health objective of preventing the spread of HIV and is an unac-
ceptable violation of equality rights of people with HIV disease.1 3

1.

Stigma, Metaphor, and Moral Meaning – What Does AIDS Signify?

Now, more than ever, we need to understand clearly and precisely what forces
and values are mobilizing in relation to the ongoing crisis of AIDS. For AIDS
is not only a medical crisis on an unparalleled scale, it involves a crisis of
representation itself…’ 4
A note published in the Harvard Law Review in 1986, describing the
stigmatization suffered by people with HIV infection, stated that “in perhaps
no other instance would singling out AIDS carriers have as severe conse-
quences as with children in school, and perhaps no other group of carriers
is considered less blameworthy.”1 5 This brief passage signifies much about
the construction of disease, the social meaning of AIDS, and the influence
this cluster of meanings can have upon social policy and legal analysis. The
concern expressed for children with AIDS thinly masks the author’s partic-
ipation in the “crisis of representation” that dominates our understanding
of AIDS; the language of innocence and guilt, and their companions, blame,
punishment and retribution, have little to do with effectively addressing the
public health crisis of AIDS. But this language has everything to do with
our social understanding of disease, and it is this crisis that must first be
understood before an informed and compassionate response to HIV disease
is possible.

A. Historical Construction of Disease: Cancer and Venereal Disease

An examination of the history of the social construction of disease
provides insight into the meaning that has been grafted onto AIDS since
the disease was first recognized. 16 Susan Sontag first explored the social
construction of cancer in her polemic essay published in 1979, Illness as
Metaphor.17 More recently, she has expanded her discussion of disease to
include the new phenomenon of AIDS in her essay, AIDS and Its Meta-
phors.18 Sontag notes that throughout history humans have always sought

13As previously noted, the term “HIV disease” is employed in this paper to describe the
entire continuum of progressive conditions that result from HIV infection, from the initial
symptoms associated with seroconversion, to asymptomatic HIV infection, to symptomatic
HIV infection, and finally, to AIDS. See infra, note 3.

14S. Watney, Policing Desire: Pornography, Aids, and the Media (Minneapolis: University of

Minnesota Press, 1987) 9.

15Note, “The Constitutional Rights of AIDS Carriers” (1986) 99 Harv. L. Rev. 1274 at 1292.
16See generally E. Fee & D.M. Fox, eds, AIDS: The Burdens of History (Berkeley: University
17S. Sontag, Illness as Metaphor (Toronto: Random House, 1979).
18S. Sontag, AIDS and Its Metaphors (New York: Farrar, Straus & Giroux, 1989).

of California Press, 1988).

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[Vol. 34

to attach moral significance to illness; in particular, diseases without a cure
and with an unknown and perhaps highly contagious mode of transmission
are most susceptible to a moral construction. Metaphors for evil have tra-
ditionally been projected onto these diseases, “and the disease (so enriched
with meanings) is projected onto the world.”’19

For example, cancer is surrounded by a cluster of social meanings and
metaphors, many drawn from the language of warfare. Tumours are des-
ignated “malignant” and “invasive”, the body’s “defenses” are rarely ade-
quate to destroy the invader, and patient’s are “bombarded” with
radiotherapy to “kill” the cancer cells. 20 The uncertain and largely unknown
causality of cancer attaches further significance; punishment metaphors
spring up to account for the murky origin of the disease, the cancer “victim”
is seen as somehow responsible for his illness, attracting the disease by his
lifestyle, diet, sexual repression, introspection, self-indulgence or fear of
disease. 21 Despite the progress in treating cancer, references to death dom-
inate the language of cancer to the point where cancer becomes a metaphor
for death itself.22

Unlike cancer, the cause of AIDS has been identified. 23 However, pop-
ular conceptions of AIDS continue to overlook the fact that the disease is
caused by a virus and insist on presenting a theory of causation that is based
on personal morality.24 Although modem virology allows us to define AIDS
as a clinical entity, its mode of transmission and fatality level “have mo-
bilized deeply felt social attitudes that relate only tangentially to the virol-
ogist’s understanding of the syndrome. ‘ 25 As Allan Brandt has pointed out,

193 at 197.

“master illnesses” [at 72].

19S. Sontag, Illness as Metaphor, supra, note 17 at 58. Sontag refers to these diseases as
20Ibid. at 63.
211bid. at 59.
221bid. at 18.
23See supra, note 3.
24J.L. Dolgin, “AIDS: Social Meanings and Legal Ramifications” (1985) 14 Hofstra L. Rev.
25C.E. Rosenburg, “Disease and Social Order in America: Perceptions and Expectations”, in
AIDS: The Burdens of History, supra, note 16, 12 at 28: “If diseases can be seen as occupying
points along a spectrum, ranging from those most firmly based in a verifiable pathological
mechanism, to those, like hysteria or alcoholism, with no well-understood mechanism but with
a highly charged social profile –
then AIDS occupies a place at both ends of that spectrum.”
A disturbing display of this pervasive construction of AIDS can be found in a recently
published article where the author asserts in his opening paragraph that AIDS “is in many
ways a product of modem society”, and points an accusing finger at “the rather liberal sexual
attitudes which prevailed in certain areas of the American homosexual and bisexual community
in the 1970’s and early 1980’s… [and] more recently, heterosexuals who engage in multiple,
indiscriminale sexual activity.” B. Kussner, “AIDS-Based Discrimination in the Workplace:
Issues and Answers” (1989) U.T. Fac. L. Rev. 383 at 384. AIDS, of course, is not a “product”
of modem society, it is a product of HIV infection. Nevertheless, the public mind continues
to ignore this verifiable pathogenesis, and instead prefers to assiduously maintain the con-
demning construction of AIDS as a disease somehow “produced” by changing sexual behaviour.

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ANONYMOUS HIV ANTIBODY TESTING

this treatment of AIDS mirrors that of syphilis in the early 20th century.26
Like AIDS, the cause of syphilis was well known. That did not limit, how-
ever, its capacity for metaphor and stigma. In fact, exactly because venereal
disease was known to be primarily sexually transmitted, it acquired a pow-
erful metaphorical meaning. Brandt argues that in order to understand more
fully the phenomenon of disease it is important to look beyond the search
for the elusive “magic bullet” –
specific treatments to eliminate a disease
– we must as well re-examine the “social constructions” of disease and
understand “the way disease is influenced by social and cultural forces –
issues of class, race, ethnicity, and gender…”‘ 27 As Charles E. Rosenburg
notes, the social understanding of disease is a function of both the medical
phenomenon and social perception of disease: “This process of interaction
between phenomenon, perception and policy is important not only to med-
icine but also to social science generally.”’28 In this complex interaction of
phenomenon and perception, venereal disease came to be seen as a pun-
ishment for those who had willfully violated the moral and sexual code,
and, even more importantly, this construction significantly influenced and
distorted the practice and policy surrounding the treatment of individuals
with venereal disease as well as the efforts to contain the spread of the
infection. 29

For example, doctors came to define what they called venereal inson-
tium, or venereal disease of the innocent, in particular gonorrheal blindness
of the newborn, which as late as 1910 accounted for as many as 25 per cent
of all the blind in the United States. 30 The language of innocence and guilt,
retribution and blame, came to characterize venereal disease. It was also a
popular belief in the early 20th century, a period of enormous immigration
to North America, that immigrants, “a large foreign population with lower
ideals”, 31 were bringing venereal disease into the country. Although there
was no evidence to support this conclusion, the fact of its widespread cur-
rency underscores the class tensions of the time, and how these pressures
provided yet another convenient forum to account for the incidence of
disease.

Since 1880, 2d ed. (New York: Oxford U. Press, 1987) 183-204.

26A.M. Brandt, No Magic Bullet: A Social History of Venereal Disease in the United States
27Ibid. at 4-5.
28C.E. Rosenburg, “Disease and Social Order in America: Perception and Expectations”,

supra, note 25 at 30.

Health Care 231 at 23 1.

29Brandt, supra, note 26 at 6.
30A.M. Brandt, “AIDS: From Social History to Social Policy” (1986) 14 Law, Medicine and

3’Ibid. at 232, citing Howard Kelly, a leading gynecologist at Johns Hopkins in “Social
Diseases and their Prevention” (1910) 1 Social Diseases 17; H. Kelly, “The Protection of the
Innocent” (1907) 55 American Journal of Obstetrics 477.

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In an even more dramatic display of social tension, in 1918 the United
States Congress allocated more than $1 million for the detention and iso-
lation of venereal carriers; during the war more than 30,000 prostitutes were
so detained. 32 Notwithstanding this policy, rates of venereal disease in-
creased dramatically during World War I. Gender discrimination thus joined
class tensions and the language of retribution, completing the complex and
multi-layered vocabulary and social context of venereal disease.

Understanding the social construction that has been grafted onto ve-
nereal disease and cancer is an important step in decomposing the moral
meaning that has been given to AIDS. Although cancer and venereal disease
may be said to transform their victims into a stigmatized class, AIDS might
be described as the first disease that appears to take classes already stig-
matized and make them into the disease’s apparently unique victims. Like
venereal disease, the further link with sexuality and blood makes AIDS
particularly susceptible to metaphorical use.33 The language of AIDS is thus
doubly dense with meaning.

B. AIDS: The “Gay Plague”

Perhaps the most resilient construction of AIDS, and one that has over-
whelmingly dominated the imagery of this disease since it was first identified
in 198 1, is the identification of AIDS as the “gay plague”. 34 The first reported
cases of AIDS were exclusively among gay men and the term “gay-related
immune deficiency”, although not used officially by the Atlanta Centers for
Disease Control, soon came into use.35 At the time, the causality of AIDS
was unknown and, as foreseen by Sontag, moral metaphors quickly sprang
into use to “explain” AIDS. The most widespread claim, and one still pop-
ular despite the fact that the cause of AIDS has now been identified, was
the claim that AIDS was linked to the legendary “promiscuity” of gay men,
fostering the impression that promiscuity itself was the cause of AIDS. It
is now clear that HIV, the cause of AIDS, can be transmitted from an infected
to an uninfected individual in one sexual encounter, one blood transfusion,

the Threat of AIDS” (1987) 66 N.C. L. Rev. 226.

32Ibid. at 233.
33D. Altman, AIDS in the Mind ofAmerica (Garden City, N.Y: Ancher Press, 1986) at 194.
34Ibid. at 30-57. See also T.R. Mendicino, “Characterization and Disease: Homosexuals and
35Although AIDS was first identified in gay men, it probably did not affect gay men first,
and it now appears that intravenous drug users were dying of AIDS in New York City through-
out the 1970s and 1980s. The disease was only identified when it was first seen in middle-class
gay men; an “epidemiology equally skewed by class and racial bias” failed to identify AIDS-
related deaths in IV drug users prior to the appearance of the disease in gay men. See D. Crimp,
“How to Have Promiscuity in an Epidemic” (1987) 43 October 237 at 249, where he cites a
study that appeared in The New York Times, (22 October 1987) B1 (“AIDS Deaths in New
York Are Showing New Patterns”).

1989]

ANONYMOUS HIV ANTIBODY TESTING

or the single use of an unclean needle. The more one engages in these high
risk activities, the higher one’s risk of infection becomes; “promiscuity”,
and in particular “gay promiscuity”, does not cause AIDS.36

Nonetheless, this initial construction of AIDS continues to influence
profoundly the political and social response to AIDS. 37 Notwithstanding
the fact that, for example, the incidence of AIDS in Central Africa has little
to do with homosexual activity,38 the equation “AIDS = gay” persists. More-
over, the rate of transmission of HIV among the gay population of both
Canada and the United States has been significantly reduced because gay
men have altered their high risk activities. 39 In the United States, the trans-
mission of HIV is now highest among IV drug users and their sex partners;40
evidence of this can already be seen in New York City where the majority

36See supra, note 3. “When an epidemiologist notes that the incidence of AIDS correlates
with numbers of sexual contacts, he may be speaking in terms of likelihoods; to many of his
fellow Americans he is speaking of guilt and deserved punishment.” [C.E. Rosenburg, “Disease
and Social Order in America”, supra, note 25 at 29.]
37R. Shilts’ book And The Band Played On (New York: St. Martin’s Press, 1987), an account
of the first years of the AIDS epidemic, describes the tragically inadequate response of the
American government to the AIDS crisis –
a response hugely influenced by the perception
that this disease was less important because it only affected homosexuals. Shilts details the
chronic lack of funding for the Centers for Disease Control in the first years of the epidemic
[at 291, 328-9, 397-8], the lack of will on the part of both scientists and politicians to address
a “homosexual” disease [at 110], the refusal by President Reagan even to mention the epidemic
until over five years after AIDS was identified [at 590-595], and the total lack of media attention
to the disease in the first years [at 110], until AIDS was seen as a potential threat to the
“general”, i.e. heterosexual, population [at 126].The lives that might have been saved had the
American political and medical structure responded more quickly and effectively, particularly
with information on how to prevent HIV transmission, will never be known. Given the average
incubation period of HIV infection can be anywhere from 8-13 years [supra, note 3], the people
infected during these critical years of inaction, 1981-83, are the same people who may develop
AIDS today.
38In Africa, HIV is primarily transmitted through heterosexual activity. See Confronting

AIDS, supra, note 1 at 74-77.

39G. Friedland & R. Klein, “Transmission of the Human Immunodeficiency Virus”, supra,
note 3 at 1130. See also W. Winkelstein, et al., “The San Francisco Men’s Health Study:
Reduction in HIV Transmission among Homosexual/Bisexual Men, 1982-6” (1987) 77 Amer.
J. Pub. Health 685.

4OSee Confronting AIDS: 1988 Update, supra, note 3 at 49-52. Attempts to reduce the high
risk activities of IV drug users has met with less success than that achieved by gay men although
the distribution of clean needles has reduced HIV transmission in Great Britain, Sweden, the
Netherlands and Australia. In Canada, needles are freely available and may be purchased in
most pharmacies without a doctor’s prescription. See “Sexually Transmitted Disease in Canada
1986” (1988) 14:20 Canada Diseases Weekly Report. This policy has not, however, been
–
widely introduced in the United States, although New York City has recently introduced a
needle exchange program. See “Study Supports New York’s Needle Plan” The New York Times
(6 June 1988) I:3 and “Needles for Addicts: Test Phase Begins” The New York Times (26 June
1988) IV:7.

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[Vol. 34

of AIDS patients are now IV drug users, most of whom are either Hispanic
or black. 41

Although the incidence of AIDS worldwide has little to do with hom-
osexuality, and the Canadian population now most likely at risk is IV drug
users, the characterization of AIDS as a “gay disease” is likely to continue
at least in Canada for the foreseeable future. Given the lengthy progressive
prognosis of HIV disease, up to 13 years or longer between infection with
HIV and a diagnosis of AIDS,42 the number of gay men in Canada who
develop AIDS will continue to increase. The majority of these men would
have been infected with HIV in the late 1970s and early 1980s, before the
virus and its means of transmission was identified. Moreover, the incidence
of AIDS among IV drug users has to date been smaller in Canada than in
the United States. 43 After 1991 this may begin to change. The incidence of
AIDS among gay men will likely decline and, unless HIV transmission via
IV drug use is reduced, an increasing number of IV drug users will develop
AIDS. 44

The future of the AIDS epidemic in Canada could come to resemble
the present situation in New York City; within four or five years it may no
longer be possible to present AIDS as a “gay” disease. The dissolution of
this particular image of AIDS might, however, only give rise to an even
more disastrous construction: AIDS will become a disease of the underclass,
the racial minorities, and IV drug users. One can only fear that the stigma
surrounding AIDS may become even more acute, making even more urgent
the need to deconstruct the already omnipresent metaphors of AIDS.

C. AIDS: War against the Other

The function of the war metaphor has already been identified in the
construction of cancer; it has an equally profound effect on the meaning of
AIDS. The primary element of the war metaphor is, of course, the enemy,
in this case HIV. Those housing the enemy, the “carriers”, are transformed
into the enemy themselves; demands for quarantine, isolation, and iden-
tification are all attempts to locate and neutralize the enemy, not unlike the
detention of prostitutes during World War I or the Japanese in both Canada

4

But Deaths Will Still Soar” The New York Times, (14 February 1988) 1:36.

1Confronting AIDS: Update 1988, supra, note 3 at 51-52; and “Spread of AIDS Abating,
42See the discussion at supra, note 3.
43The incidence of HIV infection via IV drug use is much lower in Canada than in the
United States. Only 3.3 per cent of Canadians diagnosed with AIDS are IV drug users as
opposed to 19 per cent of Americans. See AIDS: A Perspective for Canadians, supra, note 2 at
4; and W. Heyward & J. Curran, “The Epidemiology of AIDS in the U.S.”, supra, note 2 at
78.

44See “Sexually Transmitted Disease in Canada”, supra, note 40 at 10-11.

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ANONYMOUS HIV ANTIBODY TESTING

45 Disease personified becomes
and the United States during World War 11.
the enemy in our midst, everywhere and yet nowhere, threatening to take
over and destroy. As Sontag notes, “authoritarian political ideologies have
a vested interest in promoting fear, a sense of the imminence of takeover
by aliens- and real diseases are useful material. ‘ 46 Disease enhanced by
military metaphor “not only provides a persuasive justification for author-
itarian rule but implicitly suggests the necessity of state-sponsored repression
and violence.., the effect of the military imagery on thinking about sickness
and health is far from inconsequential. It overmobilizes, it overdescribes,
and it powerfully contributes to the excommunicating and stigmatizing of
the ill.” 47

The enemy metaphor is another way of expressing the “otherness” of
those with HIV disease. A concern continually expressed in accounts of
AIDS is that everything must be done to prevent the spread of the infection
into the “general population”. 48 This term, of course, excludes from the
“general population” the over 1.5 million individuals in the United States
and Canada who are infected with HIV, a feat that is made even easier by
the creation of the “risk groups”. Although the concept of risk group was
originally epidemiological, its function being to isolate characteristics that
are predictive of where a disease is likely to appear so as to contain and
prevent it, this category has been used to stereotype and stigmatize people,
placing them even further outside the moral parameters of the “general
population”. Rather than using these epidemiological categories to contact
people at risk from HIV infection, the classification has been employed to
isolate and condemn. 49 ‘Risk group’… revives the archaic idea of a tainted
community that illness has judged.”’50

4SJ. W. Ross, “Ethics and the Language of AIDS”, in C. Pierce & D. VanDeVeer, eds, AIDS:
Ethics and Public Policy (Belmont, Ca.: Wadsworth, 1988) 40 at 44-45. See also D. Altman,
AIDS in the Mind ofAmerica, supra, note 33 at 193 where he quotes then Secretary of Health
and Human Services in the Reagan Administration Margaret Heckler who, in her speech at
the International Conference on AIDS in Atlanta, spoke of “the mobilization of an international
war on AIDS” and “training our largest scientific and medical cannon on the AIDS target”
and M. Barnes, “AIDS and Mr. Korematsu: Minorities at Times of Crisis” (1988) 8 St. Louis
Univ. Pub. L. Rev. 35.

46S. Sontag, AIDS and Its Metaphors, supra, note 18 at 61.
471bid. at 94.
48Secretary Margaret Heckler, speaking at an international conference on AIDS in April,
1985, first coined the phrase, saying that “we must conquer [AIDS] before it… threatens the
health of our general population.” See J.W. Ross, supra, note 45 at 45. See also J.Z.Grover,
“AIDS: Keywords” (1988) 43 October 17 at 27.
491n 1981 when AIDS was first identified, it was characterized as the “gay plague” as it was
primarily identified in gay men. The discovery that IV drug users were also affected with the
syndrome lead researchers to suspect that a blood-borne virus was the cause of the infection
and HIV was first identified in the spring of 1983. Gay men and IV drug users thus form the
major “risk groups” for HIV infection, however because membership itself in one of these

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[Vol. 34

The construction of the “Other” permits society to pursue simultane-
ously two contradictory objectives: being able to distinguish ourselves from
the infected makes it easier to ignore them and disregard their suffering. Yet
at the same time the potential threat presented by the Other cannot be
ignored and it becomes more attractive to stigmatize and isolate “them”.
If the threat presented were indeed widespread, rather than restricted to
certain risk practices and risk “groups”, it would not be possible to delimit
the “otherness” of the infected –
they would become “us”. As it became
more difficult to distinguish, stigmatize and isolate the Other, our situation
would more closely parallel that of the devastating and indiscriminate pla-
gues of former times.51 But exactly because the risk of HIV transmission is
limited, and those most affected have little political power, it becomes more
attractive to use extraordinary and violent means allegedly aimed at con-
taining the infection, even if these means bear little relation to any require-
ment of public health. “Such is the extraordinary potency and efficacy of
the plague metaphor: it allows a disease to be regarded both as something
incurred by vulnerable ‘others’ and as (potentially) everyone’s disease. ’52

D. AIDS as Punishment

The “punishment” metaphor remains another one of the most enduring
and disempowering constructions of AIDS.53 One frequently quoted ex-
ample is the account of AIDS offered by Patrick Buchanan, conservative

groups has nothing to do with possible infection and the focus is gradually shifting from “risk
groups” to “risk practices,” these being intravenous injections and penetrative sex. The em-
phasis on risk practices clarifies the means of transmission of HIV, alerts people to the risk of
transmission in all penetrative sex, homosexual and heterosexual, and reduces the damaging
and inaccurate stigmatization of entire risk groups. See J.Z. Grover, “AIDS Keywords”, supra,
note 48 at 27; and Confronting AIDS, supra, note 1 at 57-63.
50S. Sontag, AIDS and Its Metaphors, supra, note 18 at 46.
51As Ren6 Girard notes in his essay “The Plague in Literature and Myth”, in To Double
Business Bound: Essays on Literature, Mimesis, and Anthropology (Baltimore: Johns Hopkins
U. Press, 1978) at 136-7: “The plague [in literary and scientific accounts] is universally presented
as a process of undifferentiation, a destruction of specificities…
. The distinctiveness of the
plague is that it ultimately destroys all forms of distinctiveness. The plague overcomes all
obstacles, disregards all frontiers.” Girard goes on to note, however, that despite this undif-
ferentiation, the resolution of the plague requires the identification of a “random victim” or
scapegoat, such as the persecutions against the Jews in the Middle Ages [at 148].

52S. Sontag, AIDS and Its Metaphors, supra, note 18 at 64. As with so much of the crisis of
representation surrounding AIDS, the construction of the “Other” has proven resiliant. A
recently published article dimly asserts that “AIDS is not just a disease of homosexuals and
drug abusers, rather it has the potential of affecting all of us.” M. Gillespie, “AIDS: Detection
and Control” (1989) 47 U.T. Fac.L.Rev. 354 at 355. The author blindly reinforces the notion
that AIDS would be less important if it were confined to two deprived groups, and only because
it is affecting “us” (the author thereby assumes that the reader is a member of her class, social
grouping, or sexual orientation) that the disease ought to command “our” attention. Language
intimately shapes our understanding of the world-its importance in constructing our percep-
tion of AIDS cannot be underestimated.
53J.W. Ross, supra, note 45 at 41. See also L. Kopelman, “The Punishment Concept of
Disease” in AIDS: Ethics and Public Policy, supra, note 45 at 50.

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columnist and former Reagan speechwriter: “The poor homosexuals-they
have declared war upon Nature, and Nature is exacting an awful retribu-
tion. ’54 One need not go to the extreme of quoting Buchanan in order to
illustrate the operation of this metaphor, as the above cited Harvard Law
Review note illustrates: “blameworthy” belongs to the vocabulary of sin
and punishment. Innocent school children ought not to be punished for the
sins of the guilty.55

In what is perhaps an even more disturbing phenomenon, a number
of gay men writing about AIDS have been willing to internalize the con-
struction of AIDS as punishment. Seymour Klienburg thus writes that the
“rough poetic justice” of AIDS has reminded gay men of one of the lessons
of history: “unfettered sexuality means death, whether through dishonor,
the wrath of the gods, or nature itself. We are the heir of those legends.
AIDS, like a blotter, has absorbed those old meanings. ’56 The power of
representation to shape our understanding of AIDS and disempower the
vulnerable is most vividly illustrated when even those most injured by this
construction are somehow convinced to submit to it.57

Although the idea that AIDS is nature’s punishment of gay men and
IV drug users enjoys widespread currency and has unquestionably influ-
enced public policy,58 the concept is incoherent. The majority of people

54NeV York Post (24 May 1983).
55The punishment metaphor lives on. Then Vice-President George Bush in his campaign for
the Presidency, although coming out in favour of the recommendation of the Presidential AIDS
Commission that the federal government prohibit discrimination against people with AIDS,
stressed that his primary concern was to protect “innocent” children from AIDS-related dis-
crimination. See “Bush Backs Protection of AIDS Victims Rights” The New York Times (29
June 1988)

:21.

56S. Klienburg, “Life after Death” in AIDS: Ethics and Public Policy, supra, note 45, 56 at
59.57See also R. Shilts, And the Band Played On, supra, note 37, for another example of this
phenomenon. His book created the infamous “Patient Zero”, the story of Gaetan Dugas, the
Canadian flight attendant who allegedly “gave us AIDS”. As D. Crimp notes in his essay “How
to Have Promiscuity in an Epidemic”, supra, note 35 at 237, Shilts was far more concerned
with the creation of a gripping narrative rather than any factual account of AIDS. Shilts, by
creating a sexually voracious and murderously irresponsible “patient zero”, fed the popular
conception of homosexuals; Shilts “offers up the scapegoat for his heterosexual colleagues in
order to prove that he, like them, is horrified by such creatures.” [at 244].

58For example, the United States Commission on Civil Rights recently held hearings to gather
information on the “transmissibility of AIDS” (sic) in order to determine whether, for example,
employment discrimination against people with AIDS could be justified. The inquiry over-
looked the fact that the transmissibility of HIV has already been established and that discrim-
ination against people with AIDS is already proscribed by much legislation in the United States

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suffering from AIDS in the world are neither homosexual nor IV drug
users; 59 if fate has sent the disease to punish either group, it is a most inexact
tool. Even if AIDS could be understood as Klienburg’s “rough justice,” this
could do nothing to direct the public debate about AIDS: if AIDS is pun-
ishment, how can we be justified in augmenting this retribution through
inaction or a violent overreaction? To account for AIDS as nature’s justice
is only to replace the obscure origin of disease and evil in our world with
an even more obtuse explanation. It neither clarifies the origin of AIDS nor
provides any direction in dealing with the disease.

A somewhat less extreme expression of the punishment metaphor dis-
cusses how people can bring diseases upon themselves by their lifestyles,
actions, habits, or thoughts. 60 Smoking, for example, is widely known to
cause cancer; those who develop lung cancer after knowingly assuming the
risk of smoking are often regarded as somewhat more to “blame” for their
illness than other sick people. Nonetheless, it is clear that people with lung
cancer are no less deserving of health care than others. In any event, this
argument can only have a limited application to AIDS because the majority
of individuals who have the disease contacted it entirely unaware of any
risk of infection, before the virus was identified and its method of trans-
mission understood. Moreover, those who continue to practise high risk
behaviour despite knowledge of the risk, most commonly IV drug users,
are presented with the enormous challenge of altering high risk practices
which are deeply ingrained and encumbered by social and economic
oppression.

These issues are so complex that we cannot assume with any confidence
that, even among those who should now be aware of the risk they are taking,
we can distinguish between those who “brought” AIDS upon themselves
and those not responsible for their illness. And even if this could be done
with any certainty, it does not follow that those responsible for their illness
ought to be denied health care or treated with less concern. “Nature” may
have given the world AIDS, but that in no way can intelligibly inform our
response to this epidemic. Blaming the victim, regardless of how irrational
it may be, does however serve one timeless function: the creation of a

[Discussed infra, Part III]. The Commission’s “Project Proposal,” alluding to the punishment
metaphor, also noted that the “acts generally responsible for transmitting the virus are often
illegal and have traditionally been morally proscribed” and in support cited a number of
passages from the Bible such as I Timothy 1:9-10: “law is not made for righteous man, but
for those who are lawless and rebellious, for the ungodly and sinners, for the unholy and
profane… and immoral men and homosexuals.” See “On AIDS, Panel Battles Some It Wants
to Help” The New York Times (13 April 1988) 1:18.

59Confronting AIDS, supra, note I at 73-77.
60L.Kopelman, “The Punishment Concept of Disease”, supra, note 53 at 53.

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comforting and differentiating moral rationale to account for the arbitrary
tragedy of illness and death.

E. The Morality of AIDS

The entire discourse surrounding AIDS provides a deeply embedded
moral content to this illness. “With this illness, one that elicits so much
guilt and shame, the effort to detach it from these meanings, these meta-
phors, seems particularly liberating, even consoling. But the metaphors can-
not be distanced just by abstaining from them. They have to be exposed,
criticized, belabored, used up.”‘ 61 Nonetheless, the popular imagination re-
mains highly resistant to an understanding of AIDS as an arbitrary event
causing senseless tragedy, not unlike other diseases such as polio or Le-
gionnaires’ Disease which largely escaped the social stigma attached to AIDS
or venereal disease. But we do not like to believe that our suffering or the
suffering of others has no meaning. People demand a moral construction
that permits them to vilify disease, providing the comforting distinction of
otherness that offers the illusion of protection.

Although it is vital to our understanding of AIDS to resist its popular
construction, the tragedy of this disease does not lack a profoundly moral
message. As one doctor who provides care for people with AIDS in New
York City expressed, AIDS “…is not symbolic of anything. There are no
‘victims’, because there is no crime. There are no ‘innocents’, because there
are no ‘guilty’, and there is no blame, because there has been no intention
to cause harm. There are only sick men, women, and children, all of whom
need our help.” 62

II. HIV Testing, Reporting, and Contact Tracing in Canada

Given the condemning moral construction of AIDS, the compelling
interest in securing anonymous HIV tests hardly needs to be emphasized.
The potential for social stigmatization and AIDS-related discrimination is
enormous. Yet the public interest in containing the spread of HIV infection
is equally pressing. The question for policy-makers becomes: How best can
these two objectives be achieved? A responsible legal, medical, and social
policy is one that avoids the rhetorical construction of AIDS, protects the
privacy of those infected, and effectively prevents the spread of HIV infec-
tion. The question of securing an appropriate balance is not the exclusive
terrain of public health officials; the Charter guarantees of equality also
provide the courts and the legal profession with the opportunity to partic-

6lS. Sontag, AIDS and Its Metaphors, supra, note 18 at 94.
62D. Shenson, “When Fear Conquers: A Doctor Learns about AIDS from Leprosy”, The

New York Times Magazine (28 February 1988) 36 at 48.

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ipate in this social and political debate. The constitutional parameters of
the mandatory reporting of HIV infection in Canada are thus brought into
question.

A. Mandatory Reporting of HIV Infection and Contact Tracing in Canada

Matters of public health typically fall under provincial jurisdiction as
a “local or private” matter within s. 92(16) of the Constitution Act, 1867.63
Although there are wide divergences in legislation and practice between and
within the provinces, all provinces currently require that all diagnosed cases
of AIDS be reported with identifiers to public health officials. With the
exception of the Provinces of Quebec, Alberta, and British Columbia, all
remaining provinces and territories 64 require that in addition to the re-
porting of cases of AIDS, all findings of HIV seropositivity must be reported
with identifiers to public health officials. 65 To date, only the Province of
Quebec has expressly adopted a policy favouring the provision of anony-
mous HIV testing as a means to encourage individuals to determine their
antibody status and seek preventive counselling.

63See generally Schneider v. R., [1982] 2 S.C.R. 112. If the AIDS epidemic has a national
dimension (such as air or water pollution) or is an “epidemic of pestilence” (as suggested in
Toronto Electric Commrs. v. Snider, [1925] A.C. 396 at 412), it could fall within federal Par-
liament’s peace, order, and good government power. See P Hogg, Constitutional Law of Canada,
2d ed. (Toronto: Carswell, 1985) at 405-6.

64Saskatchewan, Manitoba, Ontario, Nova Scotia, New Brunswick, Newfoundland, Prince

Edward Island, the Northwest Territories and the Yukon.

65See Alberta Public Health Act S.A. 1984, c.P-27.1, as am. S.A. 1988, c.41, s.31(l), and
Communicable Diseases Regulation, Alta. Reg. 238/85, Schedules 1 & 3; British Columbia
Health Act Communicable Disease Regulation, B.C. Reg. 4/83, s.2 & Schedule A; Manitoba
Regulation Respecting Diseases and Dead Bodies, R.R.M. P210-R2, ss.2(1), 5 & 40; New Bruns-
wick General Regulation – Health Act, N.B.Reg. 84-283, ss. 96(1) & (2); Newfoundland Com-
municable Diseases Act R.S.N. 1970 C.52, ss. 3-5 and Schedule; Nova Scotia Regulations in
Respect of the Communicable Diseases, N.S. Reg.171/85, ss.2 & 11 (15A); Ontario Health Pro-
tection and Promotion Act, 1983, supra, note 10, c.10, ss. 25-29, O.Reg. 161/84, s.1, and 0.
Reg. 162/84, s.1; Prince Edward Island Notifiable and Communicable Diseases Regulations,
RE.I. Reg. EC330/85, ss. 6, 7 & 17; Quebec Public Health Protection Act, S.R.Q., c.P-35, s.5,
and R.R.Q. 1980, c.P-35, s.30 & Schedule 13; Saskatchewan Regulations Governing Control
and Notification of Communicable Disease, Sask. Reg. 307/69, ss. I(1)(o), 2 & 3; Northwest
Territories Public Health Act, R.S.N.W.T. 1984, c.P-10, Schedule A, and Communicable Diseases
Regulations, R.R.N.W.T. 1980, Reg. 212, ss. 4 & 5; and Yukon Public Health Act, Y.T.O.I.C.
1987/214, Schedule 1, and Communicable Diseases Regulation, Y.T.O.I.C. 1961/48, s.4. This
information was supplied by Julie Hamblin at the Institute of Comparative Law, McGill Uni-
versity. See J. Hamblin, Public Health Legislation and HIV/AIDS: Confrontation in Compulsory
Case-Reporting (LL.M. Thesis, Institute of Comparative Law, McGill University, 1989) [un-
published]. See also, D.G. Casswell, “Disclosure By a Physician of AIDS-Related Patient In-
formation: An Ethical and Legal Dilemma” (1989) 68 Can. Bar Rev. 225 at 255 where the
author provides a table of provincial legislation.

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ANONYMOUS HIV ANTIBODY TESTING

There are essentially three different public health models available for
locating and notifying the contacts of an HIV infected person (known as
the “index”). 66 “Active contact tracing” attempts to notify as many contacts
of an index as possible about potential exposure to HIV. Health officials
solicit the names of a patient’s contacts and then warn them about exposure
without revealing the identity of the index. Contacts are advised to undergo
testing and seek counselling about preventive measures, and both services
are usually provided by the intervening health official.

Where active contact tracing may be unfeasible, given the size of the
infected population and the inability to identify or locate anything more
than a minority of the contacts, health officials may adopt a program of
“limited contact tracing” which is primarily aimed at notifying individuals
who might be unaware of any risk of infection, such as female sexual partners
of closeted bisexual men and sexual partners of closeted IV drug users.

“Voluntary contact tracing”, the third option available, involves en-
couraging the index to notify contacts personally and encourage them to
seek testing and counselling. Health officials do not usually seek to partic-
ipate in the process but they will usually offer to assist the index upon
request. 67

Only the Province of Ontario has adopted an active contact tracing
programme for HIV infection, the most invasive of the three available op-
tions. The remaining provinces, though practices vary widely, in general
have adopted largely informal contact tracing procedures, usually focussing
on voluntary contact tracing and, in some circumstances, a limited contact
tracing program confined to populations who may unknowingly be at risk
for HIV infection. Because the Province of Ontario has thus distinguished
itself in adopting the only active HIV contact tracing program in Canada,
in addition to being the only province to enforce aggressively the HIV
mandatory reporting requirements under the Ontario Health Promotion and
Protection Act, the Ontario program provides the most comprehensive and
useful model for the study of the public health consequences of mandatory
reporting of HIV infection and contact tracing.

66For further elaboration of these models, see Intergovernmental Health Policy Project,
George Washington University, AIDS: A Public Health Challenge (Washington, D.C.: The
George Washington U., 1987) vol. 1 [hereinafter AIDS: A Public Health Challenge] at 3-15 –
3-35.
67For example, the State of Minnesota has initiated a voluntary contact tracing program. See

the discussion below in Part III.

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B. The Ontario Health Protection and Promotion Act

The Health Protection and Promotion Act 68 establishes a comprehensive
legislative scheme for the provision of health programs and services and
the prevention of the spread of disease in Ontario. Part IV of the Act outlines
reporting requirements 69 and public health procedures for “virulent”, “com-
municable”, and “reportable” diseases; the Minister of Health may make
regulations specifying all three kinds of diseases. 70 The Medical Officer of
Health of the local Board of Health is given broad powers to monitor and
control the spread of virulent and communicable diseases; a reportable dis-
ease does not give rise to the same broad powers. AIDS has been defined
by regulations to be both a reportable7 and a communicable 72 disease but
not a virulent disease.

The Act requires that operators of laboratories report “each case of a
positive laboratory finding in respect of a reportable disease” 73 and physi-
cians, hospital administrators, and school principals are required to report
cases where a person “is or may be infected with an agent of a communicable
disease… -74 This provision thus far has been interpreted by the Depart-
ment of Public Health of the City of Toronto as requiring the reporting of
all findings of HIV seropositivity.75 Failure to make a required report under

68Supra, note 10.
69Physicians are under a number of different obligations to report medical findings to various
government agencies. For example, the Child and Family Services Act, 1984, S.O. 1984, c. 55,
requires physicians to report cases of suspected child abuse to the Children’s Aid Society and
the Highway Traffic Act, R.S.O. 1980, c. 198, s.177, requires physicians to report patients who
have medical conditions that may make it dangerous for them to drive to the Registrar of
Motor Vehicles. See generally G. Sharpe, The Law and Medicine in Canada, 2d ed. (Toronto:
Butterworths, 1987) at 184-86.

70Health Protection and Promotion Act, supra, note 10, s.96.
710.Reg. 162/84.
720.Reg. 161/84.
73Supra, note 10, s.29(1). The results of HIV blood screening tests done by the Canadian
Red Cross are also reported to the Medical Officer of Health [interview with Joanne Ackery,
Public Health Nurse responsible for HIV contact tracing with the Department of Public Health
for the City of Toronto (18 July1988)].

74Ibid., ss. 25-28.
75According to Dr A.S. Macpherson, Medical Officer of Health for the City of Toronto, there
is no question that “[s]ince the majority of individuals with antibody to HIV also carry the
virus, an individual seropositive for HIV antibody ‘is or may be infected with the agent of a
communicable disease’ and must be reported.” Dr Macpherson informed physicians in Toronto
of their legal duty to report cases of patients who are HIV seropositive in an undated letter
widely distributed to Toronto area physicians in 1987. See also College Notice of The College
of Physicians and Surgeons of Ontario (Issue No.12, August 1987) informing physicians of
their obligations to report findings of HIV seropositivity and AIDS.

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ANONYMOUS HIV ANTIBODY TESTING

553

the Act is an offense under the Act and punishable by a fine upon
conviction. 76

C. Information Reported

The information to be included in a report to the Medical Officer of
Health is specified in the Regulations under the Act. 77 The report must
include the name and address of the patient and any “such additional in-
formation respecting the reportable disease or communicable disease, as the
case may be, as the Medical Officer of Health considers necessary.” 78 The
regulation furthers specifies the information that must be reported for spe-
cific diseases, including AIDS: most importantly, the “risk classification” of
the patient must be reported. 79

The provincial government in turn reports cases of full-blown AIDS
to the Federal Centre for AIDS in Ottawa. The province does not report
cases of individuals who are seropositive but have not developed AIDS,
nor does the Federal Centre for AIDS maintain files with the names of the
individuals who have AIDS. The Federal Centre uses only the initials of
the patient and the date of birth to identify its files and prevent duplication. 80

The actual procedure by which the provincial government is usually
informed of seropositive results is as follows. Any physician may order an
HIV test; occasionally the test is even performed as part of a routine series
of blood tests without expressly securing the patient’s consent for an HIV

76Supra, note 10, s.99(2) and s.100. If failure to comply with these requirements resulted in
the infection of a third person, the physician might also be liable in tort for breach of a statutory
duty or negligence. For example, a recent Supreme Court of Ontario decision broadened the
potential liability of a taxi driver who suffered a fatal heart attack while driving thereby injuring
another driver. See Dobbs v. Mayer Estate, (1985) 9 O.A.C. 124, 32 C.C.L.T. 191 (Div Ct.).
Given that the driver would have been suffering considerable pain prior to the accident, the
court held him liable in negligence. Although the taxi driver’s physician was not sued, given
that the physician has the statutory obligation to inform the Ministry of Transportation of
patients with an illness that may make it hazardous for them to drive, it is possible that a
physician could be also liable under these circumstances. See G. Sharpe, The Law and Medicine
in Canada, supra, note 69 at 186-7.

770.Reg. 490/85.
780.Reg. 490/85, s. 1(2).
790.Reg. 490/85, s. 5.
8OTelephone interview with Penny Neult of the Bureau of AIDS Prevention and Services
Programs of the Federal Centre for AIDS (18 July 1988). The “AIDS Adult Case Report Form”
issued by Health and Welfare Canada and presently employed in Ontario to report cases of
AIDS includes the patient’s name and “social and risk factors”. The copy of the form that is
sent to the Federal Centre for AIDS deletes the section including the patient’s name and address.
A copy of this form was provided to me by Mr Fred Ruf of the AIDS Prevention Program of
the City of Toronto Department of Public Health (19 July 1988).

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test.8 ‘ The physician fills out a form prepared by the Ontario Ministry of
Health for the purposes of HIV antibody testing. This form includes either
the name or initials of the patient, the date of birth, the name of the attending
physician, and the risk group of the patient. 82 The risk group category is
requested largely for testing purposes. The test sequence is as follows. Two
“ELISA 8 3 tests are performed on the blood sample and if both are negative
and the person does not fall into one of the risk group categories, the testing
sequence ends. However, if either test is positive, or even if both are negative
but the person is a member of a risk category, the sequence proceeds to the
more expensive and specific “Western Blot ‘ 84 test. If the results of this latter
test are positive, a copy of the request form with the positive result is then
forwarded directly to the Medical Officer of Health by the laboratory, pur-
suant to the requirements of the Health Protection and Promotion Act. 85
About one half of these forms include the name of the patient and the
remaining forms only provide the patient’s initials. 86 The Medical Officer
of Health then contacts the physician in order to complete an “HIV Follow-
Up Information Form”.8 7 This form includes the results of previous HIV
antibody tests, the patient’s initials, whether the test was done anony-

81See “Concern Growing Over ‘Non-Consent’ AIDS Tests” The Toronto Star (7 January
1988) A4. It appears that physicians can rely upon the implied consent by the act of surrendering
blood for diagnostic purposes. See generally G. Sharpe, The Law and Medicine in Canada,
supra, note 69 at 30-32. Nonetheless, the CBA Report, supra, note 6 at 23-24, recommends
that physicians get the patient’s consent before ordering the test “given the current potential
for prejudice to the individual tested”.

821 conducted an interview with Dr L. Yuan, AIDS physician in the Downtown Health Area
of the City of Toronto (17 March 1988), and she provided me with information about the
current practice of the Ministry of Health. Dr Yuan works for the Department of Public Health
of the City of Toronto under Dr Macpherson, the Medical Officer of Health for the City of
Toronto, and is responsible for the contact tracing program in the area.
83The ELISA test is simple, inexpensive and highly sensitive, which means that the ELISA
test will almost certainly detect the presence of HIV antibodies, however because the test is
so sensitive it frequently reacts to something else in the blood and produces a positive result
even absent the presence of HIV antibodies. See J. Petricciani, “Licensed Tests for Antibody
to Human T-Lymphotropic Virus Type III: Sensitivity and Specificity” (1985) 103 Annals of
Internal Medicine 726.

84The Western Blot test is much more expensive than the ELISA and much more specific,
which means that if the Western Blot test is positive, the blood sample almost certainly contains
the HIV antibody. The Western Blot is not, however, as sensitive as the ELISA test and may
fail to detect the presence of the antibody. For these reasons, the two tests are always done in
conjunction with one another and together the two tests provide a highly accurate result. See
Petricciani, ibid. at 726-9.
85Supra, note 10, s.29.
86Dr Yuan, supra, note 82.
87A copy of this form was provided to me by Dr Yuan.

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ANONYMOUS HIV ANTIBODY TESTING

mously,88 the possible sources of infection (sex with an infected or “high
risk” person, a blood product recipient, or IV drug use), and the possible
sexual contacts or IV needle partners in the last five years.

D. Powers of the Medical Officer of Health

Once a communicable disease such as AIDS has been reported to the
Medical Officer of Health, he may consider evoking his extensive powers
under the Act, including the power to close premises, 89 to order the isolation
of a person “infected with the agent of a communicable disease”, 90 to order
a person to submit to a medical examination to determine whether he is
infected, 91 and to require that an infected person “conduct himself in such
a manner as not to expose another person to infection. ‘ 92

The Medical Officer of Health also has the power to apply to a provincial
offences court to enforce an isolation order with respect to a communicable
disease, 93 but the Act does not grant the court the power to order a person
to be examined for a communicable disease or order a person not to expose
others to the risk of infection. 94 Nonetheless, the Medical Officer of Health
could make either of these orders by his own authority and can enforce
them under Part IX of the Act which provides for a fine of up to $5,000
for every day that a person fails to obey an order made under the Act.95

Most importantly, for the purposes of this paper, the Act permits the
disclosure of any information collected under the Act “where disclosure is
made for the purposes of public health administration, ’96 thereby permitting

88This is an odd question given that anonymous testing is not legally available in Ontario.
The question may refer to whether the patient’s name was given on the request form or only
the patient’s initials were employed.

89Health Protection and Promotion Act, supra, note 10, s.22(4)(a).
9Ibid., s.22(4)(c).
91Ibid., s.22(4)(f).
92Ibid., s.22(4)(h). If AIDS were classified as a virulent disease, which it presently is not, the
Medical Officer of Health would have the further power to order the infected person to place
himself under the care and treatment of a physician.[s. 22(4)(g)]

93Ibid., ss. 36(2) and 35(3)(a). A detention order is valid for four months [s.36(7)], and upon
application by the Medical Officer of Health the order may be extended for further four month
periods of detention if the person continues to be infected and continues to present a “significant
threat to public health” [s.36(1 l)(a)(b)]. Any person to whom an order made by the Medical
Officer of Health is directed is entitled to a hearing by the Health Protection Appeal Board
[s.43] with a further appeal available to the Divisional Court [s.45].
94The court may only issue such orders with respect to virulent diseases [Ibid., s.35(2)]. The
extensive enforcement provisions of s.35 would apply, however, with “necessary modifica-
tions”, to persons infected only with a communicable disease if that person had failed to comply
with an order to isolate himself [s.36(2)].

95Ibid., ss. 99-100.
96Ibid., s.38(1)(c).

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(Vol. 34

the Medical Officer of Health to proceed with contact tracing. The Act does
not expressly permit the Medical Officer of Health to compel individuals
infected with a communicable disease to reveal the names of their contacts;
however, the medical officer can order an infected person to “conduct him-
self in such a manner as not to expose another person to infection” 97 and
it is possible that this could be interpreted as requiring the patient to co-
operate with contact tracing by revealing the names of his or her contacts.

E. Contact Tracing

Once the physician has completed the required “HIV Follow-Up In-
formation Form”, the Medical Officer of Health then asks the physician if
he or she is willing to perform contact tracing or if he or she would prefer
that the Medical Officer of Health undertake the task.98 The physician is
only able to perform the contact tracing with the consent of the patient; any
disclosure without the patient’s consent would likely constitute professional
misconduct on the part of the physician. 99 Only the Medical Officer of
Health may perform contact tracing in the absence of patient consent. As
a result, if the physician is unwilling to perform the contact tracing or lacks
the necessary patient consent, the Medical Officer of Health will request the
name of the patient (the “index”) and names of the patient’s contacts, if
the medical officer does not already have that information. In sum, if a
patient refuses to consent to contact tracing, his or her identity must be
reported to the Medical Officer of Health who will, in turn, pursue an active
contact tracing program.

971bid., s.22(4)(h).
98As many as 90 per cent of doctors agree to perform the contact tracing themselves [Joanne

Ackery, supra, note 73].

99Regulation 448 under Ontario’s Health DisciplinesAct, R.R.O. 1980, s.27(22) defines profes-
sional misconduct as including “giving information concerning a patient’s condition or any
professional services performed for a patient to any person other than the patient without the
consent of the patient unless required to do so by law.” See also Health Protection and Pro-
motion Act, supra, note 10, s.38 which provides that “No person shall disclose to any other
person the name of or any other information that will or is likely to identify a person in respect
of whom a … report is made in respect of a … reportable disease… .” Once a physician has
reported the name of a patient with HIV infection, under s.38 this physician would be prohibited
from releasing this information to any other party.

The physician may also incur civil liability for disclosing confidential information without
the patient’s consent, such as actions for defamation, breach of contract, breach of statute, and
negligence. See generally G. Sharpe, The Law and Medicine in Canada, supra, note 69 at 181.
The “duty to warn”, which imposes liability on a physician for failing to disclose medical
records where disclosure could prevent imminent harm to a third person, does not as yet exist
in Canadian law [Ibid. at 181-2]. See below, Part III for a discussion of the Canadian and
American law on duty to warn. See also below, Part III for a detailed discussion of an alternative
contact tracing program where the physician would be primarily responsible to perform contact
tracing.

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ANONYMOUS HIV ANTIBODY TESTING

The Ministry of Health had previously pursued a limited contact tracing
program which focused only on informing “high priority” contacts –
es-
sentially any contacts outside of gay males, such as female partners of bis-
exual men or sexual partners of IV drug users – who might be unaware of
their risk of HIV infection. It was assumed that gay sexual partners are
“most likely aware of their risk of exposure.”100 This policy is, however, no
longer in effect and the Ministry has implemented an active contact tracing
program whereby the contacts of all seropositive individuals, including gay
men, are now treated as high priority.101

It may be difficult for the physician to know about the patient’s contacts
unless the patient is willing to cooperate and provide this information. 102
However, it is within the authority of the Medical Officer of Health to require
physicians to release this information even without the patient’s cooperation
or consent, if any of this information is available to the physician.103 In
many cases it is likely that the physician will be aware of some of the patient’s
sexual contacts, especially in the case of married patients. As noted, it is
even possible that the medical officer, by ordering a patient to conduct
himself so as “not to expose another person to infection”, could require
that a patient cooperate with contact tracing by revealing the names of his
or her contacts.

E

The Prejudicial Impact of Mandatory Reporting

Given the condemning moral construction that has been grafted onto
AIDS, and the potential for social stigmatization and discrimination that
can result if HIV-related information is disclosed, the prejudicial effects of
a program which ensures, at the very least, that the name of seropositive
individuals and their “risk group” is reported to the government, hardly
need comment. Government records providing the names of seropositive
individuals, homosexuals, and IV drug users raise legitimate concerns; the
possibility of highly prejudicial government disclosure of this information
cannot be dismissed.

For example, the present provisions of the Health Promotion and Pro-
tection Act provide only the loosest confidentiality provisions: information
collected under the Act can be disclosed “for the purposes of public health”

1See Ontario Provincial Advisory Committee on AIDS, Statement on Contact Tracing of

Individuals with HTLV-Ill/LAV Infection, (18 April 1986).

101Dr Yuan, supra, note 82.
lO2Ibid.
1030.Reg. 490/85 s.l(2) provides that the Medical Officer of Health may require that a

physician report any additional information considered necessary.

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and for proceedings under, for example, the Criminal Code.104 Given that
IV drug use is criminal behaviour, 105 and the transmission of HIV could in
some circumstances result in criminal charges, 106 the release of this infor-
mation in criminal proceedings would be extremely damaging. 10 7

The very real possibility of unauthorized disclosure, as examined by
Mr Justice Krever in his 1980 landmark inquiry into the confidentiality of
health information, is equally troubling.10 8 He noted that between 1976 and
1977, medical information in Ontario was regularly obtained by insurance
companies and lawyers by improper means, suggesting the existence of an
industry in the trafficking of medical information. 0 9 The Krever Report also
referred to a 1977 incident where a computer operator at the Ministry of
Health “had run the computer tape containing the names of persons reported
as having venereal disease, for fun.” 110 There is no reason to believe that
similar unauthorized disclosures could not occur with the HIV infection
records of the Ministry, which could result in a wide range of AIDS-related
discrimination by employers, insurance companies, and landlords.

The active contact tracing program pursued by Ontario public health
officials, which permits the disclosure of HIV-related information without

“04Concerns about the confidentiality of information collected by the government under the
Health Promotion and Protection Act, supra, note 10 are not unwarranted. Although s.38 of
the Act provides that “no person shall disclose to any other person the name of or any other
information that will or is likely to identify a person in respect of whom an application, order,
certificate or report is made in respect of a communicable disease,” there are a number of
exceptions to this confidentiality provision. Disclosure is permitted if it “is made for the
purposes of public health administration” [s.38(2)(c)] or “in connection with the administration
of or a proceeding under this Act, the Health Disciplines Act, the Public Hospitals Act, the
Medical Care Act (Canada), or the Criminal Code (Canada)” [s.38(2)(d)].

It is unclear what the scope of permissible disclosure is under the Act. The “purposes of

public health administration” is a particularly broad and worrisome provision.

105Narcotic ControlAct, R.S.C. 1985, c. N-I, s.3.
1061n R. v. Thorton (1988), No. 157 SCC (Ottawa Registry File), a seropositive man was
charged with common nuisance (s.176) after he donated blood to the Red Cross while fully
aware of his HIV antibody status. See T. Ducharme, “Preparing for a Legal Epidemic”, supra,
note 6 at 490-4.

In the United States, numerous states have introduced legislation making the transmission
of HIV a criminal offense. See Intergovernmental Health Policy Project- George Washington
University, A Synopsis ofStateAIDSRelatedLegislation (Through February 1988) (Washington
D.C.: The George Washington U., 1988) 31-39.
107This could constitute a violation of the right against self-incrimination under s. 13 of the

Charter. See P. Hogg, Constitutional Law of Canada, supra, note 63 at 781-783.

08Ontario, Report of the Commission of Inquiry into the Confidentiality of Health Infor-
mation (Toronto: Queen’s Printer, 1980) (Commissioner: H. Krever J.) [hereinafter Krever
Report].

109See R. Gellman, “Prescribing Role of the Physician in the Protection of Patient Privacy”

(1984) 62 N.C.L. Rev. 255 at 264-5.

10Krever Report, supra, note 108 at 73.

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ANONYMOUS HIV ANTIBODY TESTING

patient consent, also raises legitimate confidentiality concerns. The public
health rationale of an active contact tracing program for HIV infection is
questionable, given the costs involved and the likelihood that many contacts
will be impossible to locate. As will be argued in Part III, a less invasive,
limited contact tracing program is more effective and poses less of a risk of
wide-spread disclosure. Although justified in some circumstances, particu-
larly with regard to individuals unaware of their risk of exposure, even a
limited contact tracing can present acute concerns about confidentiality.
Although the identity of the index is not supposed to be released during
contact tracing, in many circumstances, particularly in the case of couples
in long term relationships, this measure will be entirely ineffective in pro-
tecting the identity of the index. In this context, contact tracing can result
in serious prejudice –
divorce or family separation being the most im-
mediate and threatening possibilities –
and it should only be performed
where circumstances clearly warrant disclosure.

G. Opposition to Mandatory Reporting

Despite the strict reporting requirements of the Act, there is opposition
to and divergence from the Act in practice. As noted, in order to provide
HIV tests to their patients without reporting the results to the government,
Ontario physicians requesting an HIV test frequently provide only the in-
itials of the patient on the request form. The laboratory report, a copy of
which is sent to the Medical Officer of Health, would not include the name
of the patient and the officer would be required to contact the physician
directly in order to obtain this information. In addition, the Hassle-Free
Clinic of Toronto offers strictly anonymous HIV antibody testing: patients
are given a coded number when they come into the clinic for an HIV test;
this number is attached to the test request form, and the patient later learns
of the test results by providing his coded number. No records are kept by
the Clinic which would indicate the identity of any person who was given
a coded number.11′

These practices, although to date largely tolerated by the Ministry of
Health, plainly violate the reporting requirements under the Health Pro-
motion and Protection Act, leaving the responsible physicians liable for pros-
ecution under the Act.’ 2 A number of physicians in the Toronto area have
not only refused to comply with the reporting requirements under the Act,
but have also refused to comply with a direct order by the Medical Officer
of Health that they reveal the names of their patients who are HIV sero-

“‘Telephone interview with Linda Gardner, counsellor at the Hassle-Free Clinic in Toronto

(16 November 1988).

” 2Failure to comply with the reporting requirements of the Act is a violation of s.99(2),

punishable by a fine of up to $5,000 for every day the offense is continued [s. 100].

McGILL LAW JOURNAL

[Vol. 34

positive. In an important test case, Dr A.S. Macpherson, the Medical Officer
of Health for the City of Toronto, has issued a formal written order to a
Toronto physician requesting that he release the name of a married bisexual
patient who was HIV seropositive.Y3 It is evident that the Ministry wants
to inform the patient’s wife of the risk of infection, but the doctor is of the
opinion that contact tracing is unwarranted in the circumstances of his
patient’s case. The patient, fearing the destructive effect that information of
his physical condition and sexual behavior could have upon his marriage,
and the potential for HIV-related discrimination if this information is dis-
closed, is also challenging the Ministry’s action.

As a result of this apparent shift in the policy of the Government of
Ontario to prohibit anonymous HIV testing and strictly enforce the re-
porting requirements of the Health Protection and Promotion Act in order
to perform contact tracing, the constitutionality and public health rationale
of the mandatory reporting of HIV infection, a subject closely debated in
the United States, is beginning to receive more attention from Canadian
lawmakers and public health officials. For example, in 1986 an AIDS sym-
posium held by the Ontario Medical Association came out in favour of
anonymous HIV testing.” 14 The following year, Dr Jim Henderson, Liberal
M.P.P. for Humber, introduced a private member’s bill in the Ontario leg-
islature that would legalize anonymous testing.”15 If the Government of
Ontario decides to proceed with its prosecution of physicians who refuse
to cooperate with the mandatory reporting requirements presently in place,
a constitutional challenge to the legislation is likely.

III. Constitutional Analysis of Mandatory Reporting and Contact Tracing

Mandatory reporting raises at least two possible constitutional ques-
tions. First, does reporting violate privacy and, second, does it violate equal-
ity by prejudicially discriminating against the physically disabled? Both
privacy and equality rights are in their infancy in terms of the development
of Canadian constitutional doctrine and, as in many matters of novel
Charter jurisprudence, American precedent has proven a useful aid. In par-
ticular, the American Courts, given their now extensive experience with the
AIDS epidemic (and their ever-litigious nature), have developed a substan-
tial body of anti-discrimination law of critical importance to AIDS-related
legal questions. The following discussion, which primarily focusses on an
equality analysis of mandatory reporting, finds its base in these American

(20 May 1988) A14.

” 3″Doctor Ordered to Reveal Name of Patient in AIDS Test” The [Toronto] Globe and Mail
114″Identifying AIDS patients rejected” The [Toronto] Globe and Mail (13 June 1986).
115Press Release (30 November 1987). “Toronto MPP’s Bill Would Legalize Anonymous

Testing for AIDS Virus” The Toronto Star (13 December 1987) A20.

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ANONYMOUS HIV ANTIBODY TESTING

precedents and presents the argument that these precedents provide fertile
ground for addressing the constitutional and public health consequences of
mandatory reporting in Canada.

A. Equal Protection under the American Constitution

The constitutional implications of mandatory reporting of HIV infec-
tion have been extensively reviewed by scholars in the United States. l” 6
The Fourteenth Amendment provides that “[n]o State shall make or enforce
any law which shall … deny to any person within its jurisdiction the equal
protection of the laws.”‘ 17 Under equal protection analysis in American law,
before any substantive constitutional review of mandatory reporting is pos-
sible, a “suspect class” or a “fundamental right” which is adversely affected
by mandatory reporting must first be identified.

1.

HIV Disease as a Suspect Class

In equal protection analysis, only legislative classifications which touch
on suspect classes, such as race or national origin, 18 are closely reviewed
by the courts under the doctrine of “strict scrutiny”. Laws which do not
touch on these interests are only subject to minimal judicial examination,
often referred to as the “mere rationality” test, a level of scrutiny which
rarely results in any judicial intervention.

The United States Supreme Court has also created a new, intermediate
level of review where the Court applies heightened scrutiny to sensitive or
“quasi-suspect” classifications, notably gender,1’ 9 alienage, 20 and illegiti-
macy.121 Nonetheless, the Court has been careful to limit the categories of
suspect and quasi-suspect classes and fundamental rights; 122 most impor-

161For articles addressing the constitutional implications of mandatory reporting schemes in
the United States, see D. Costa, “Reportability of Exposure to the AIDS Virus: An Equal
Protection Analysis” (1986) 7 Cardozo L. Rev. 1103; D.J. Merritt, “Communicable Disease
and Constitutional Law: Controlling AIDS” (1986) 61 N.YU.L. Rev. 739; L. Orland & S.L.
Wise, “The AIDS Epidemic: A Constitutional Conundrum” (1985) 14 Hofstra L. Rev. 137;
W. Curran, L. Gostin, & M. Clark, Acquired Immunodeficiency Syndrome: Legal and Regu-
latory Policy (Boston: Harvard School of Public Health, 1986) at 242-273; and M. Barnes,
“Confidentiality”, in A. Rubenfeld, ed., AIDS Legal Guide, supra, note 4 at 4-1.

117U.S. Const. amend. XIV, s. 1.
118See, e.g., Loving v. Virginia, 388 U.S. 1 (1967).
t 19See, e.g., Craig v. Boren, 429 U.S. 190 (1976).
120See, e.g., In re Griffiths, 413 U.S. 717 (1973).
121See, e.g., Trimble v. Gordon, 430 U.S. 762 (1977).
122For example, the Court has refused to extend heightened treatment to classifications based
on age or wealth. See, e.g., Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976)
(age is not a suspect class); San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1 (1973)
(wealth is not a suspect classification nor is education a fundamental right).

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tantly, for reasons discussed below, it seems unlikely that any of these cat-
egories could be extended to encompass the interests affected by a state
mandatory reporting and contact tracing program.

Those in favour of substantive constitutional review have argued that
legislation which classifies individuals on the basis of HIV infection creates
a suspect class which should be subject to heightened or strict scrutiny by
the courts. 123 There are generally four elements characteristic of suspect
classes: a history of discrimination, stigmatization, immutability and po-
litical powerlessness. 124 HIV disease could create a suspect class, given that
there is no question that seropositive individuals have been subject to wide-
ranging discrimination in employment, education, housing, insurance, and
medical treatment. The stigmatization suffered by those with HIV disease,
an immutable condition, has already been described in detail. The relative
political powerlessness of people infected with a contagious and widely
feared disease, particularly when those at the greatest risk of infection are
already members of disadvantaged and disfavoured groups (in the U.S.,
primarily black and Hispanic IV drug users, and gay men), is also a com-
pelling reason for judicial scrutiny.125

The argument, however, is problematic. First, the Fourteenth Amend-
ment has not generally been successfully invoked to challenge public health
measures designed to control communicable disease. Although the protec-
tion of individual rights and our knowledge of disease has considerably
expanded since these cases were decided, several courts in the past have
held that health regulations enacted by the state under its police power are
not generally reviewable under the provisions of the Fourteenth Amend-
ment: the courts are unwilling to create a situation where “… a state would
be rendered powerless to protect itself by prompt and speedy action from
the spread of contagion.”‘ 26

More importantly, the Supreme Court has expressly refused to extend
suspect classification to physically or mentally disabled individuals. In City

123D. Costa, “Reportability of Exposure to the AIDS Virus: An Equal Protection Analysis”,

supra, note 116 at 1118-23.

116 at 139-43.

at 1052-53, ss. 16-22.

‘ 24L.H. Tribe, American Constitutional Law, 2d ed. (Mineola, N.Y.: Foundation Press, 1988)
125L. Orland & S.L. Wise, “The AIDS Epidemic: A Constitutional Conundrum”, supra, note
126Exparte Caselli, 62 Mont. 201,204 P. 364 at 364 (1922). See also Jacobson v. Massachusetts,
197 U.S. 11 (1905) where the Court upheld a Cambridge ordinance requiring mass public
vaccination to prevent the spread of an epidemic. These cases were, however, decided before
the 1960s and 1970s during which the American courts expanded constitutional civil rights
much more aggressively. They may no longer be particularly controlling precedents.

1989]

ANONYMOUS HIV ANTIBODY TESTING

of Cleburne, Tex. v. Cleburne Living Center,127 the Court held that mentally
handicapped individuals did not constitute either a suspect or a quasi-
suspect class. The Court concluded that “if the large and amorphous class
of the mentally retarded were deemed quasi-suspect … it would be difficult
to find a principled way to distinguish a variety of other groups who have
perhaps immutable disabilities setting them off from others … . One need
mention in this respect only the aging, the disabled, the mentally ill, and
the infirm.”” 28 The refusal of the Court to extend protection to the disabled
and the infirm precludes any argument that discrimination on the grounds
of a physical disability, such as HIV infection, could give rise to an equal
protection challenge.

Finally, the intersection between homosexual activity and HIV infection
is unlikely to encourage the courts to abandon their established reluctance
and expand the suspect classes to include those who are seropositive. Gay
people have not been recognized as a suspect class under equal protection
doctrine,129 nor has the right to privacy ever been extended to include con-
sensual, adult sodomy. 30 Moreover, such an argument may be counter-
productive. As earlier pointed out, AIDS is not a gay disease; stressing the
intersection between homosexuality and AIDS only increases the stigma-
tization surrounding AIDS. Given the reluctance of the American courts to
expand the categories of suspect or quasi-suspect classes, it is unlikely that
individuals adversely affected by an HIV mandatory reporting scheme could
be characterized as a suspect class.

127473 U.S. 432 (1985) [hereinafter Cleburne]. Although the Court did not find that the
mentally handicapped formed a suspect class, the Court nonetheless found that the impugned
legislation did not even meet the “rationally related” standard of minimal scrutiny [at 447-
50]. This raises the intriguing possibility that the Court has decided in certain cases that even
where there is no suspect class affected, the legislation may nonetheless be subject to some
heightened scrutiny. The traditional rational basis test, prior to Cleburne, was a far more
predictably deferential level of review. This development, only now in its infancy in American
law, may in the future provide some judicial protection to non-suspect classes, such as physical
disability. See D.J. Merritt, “Communicable Disease and Constitutional Law: Controlling
AIDS”, supra, note 116 at 784-98.

’28Ibid. at 445-6.
129DeSantis v. Pacific Tel. & Tel. Co. Inc., 608 E2d 327 at 333 (9th Cir. 1979) which held
that homosexuals have not been designated a “suspect” or “quasi-suspect” class requiring
stricter scrutiny of classifications on the basis of homosexuality. But see Watkins v. United
States Army, 837 E2d 1428 (9th Cir. 1988) which recently held that homosexuals constitute a
suspect class and that Army regulations that discriminate on the basis of homosexual orien-
tation are unconstitutional. This decision was, however, subsequently withdrawn by an eleven
judge en banc panel of the Ninth Circuit Count of Appeals in a decision in which the majority
of the panel did not address the equal protection issue raised in the previous decision. Watkins
v. United States Army, No. 85-4006 (3 May 1989)[unreported].

130Bowers v. Hardwick, 106 S. Ct. 2841 (1986) [hereinafter Bowers]. See the discussion, infra,

note 143 If. and accompanying text.

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2.

Mandatory Reporting and Privacy

Heightened scrutiny might still be available if it can be shown that the
mandatory reporting of HIV infection interferes with some fundamental
right protected under the Constitution. A number of these fundamental
rights which fall under the equal protection clause have been identified, and
they include such interests as the right to vote,1 31 the right to travel inter-
state, 132 and the right to privacy. 133 One aspect of the right to privacy is the
right to informational privacy and this could have important consequences
for the mandatory reporting of HIV infection.13 4

In Whalen v. Roe,135 the Supreme Court held that a New York statute
requiring reports by name and address of persons obtaining abusable pre-
scription drugs did not pose a sufficiently grievous threat to individual pri-
vacy interests to establish a constitutional violation. 36 The patients argued
that the misuse of this data would cause them to be stigmatized as drug
addicts but the state defended the collection of the data as a means to control
the illegal use of dangerous drugs. 137 The Court held that:

disclosure of private medical information to doctors, to hospital personnel, to
insurance companies, and to public health agencies are [sic] often an essential
part of modem medical practice even when the disclosure may reflect unfa-
vorably on the character of the patient. Requiring such disclosures to repre-
sentatives of the State having responsibility for the health of the community,
does not automatically amount to an impermissible invasion of privacy. 38

The Court added that the statutory reporting of venereal disease was a
“familiar example” of such required disclosure. 139 Although the regulation
was upheld, the Court suggested that there were constitutional limitations
on the government’s power to collect information about its citizenry. The

131See, e.g., Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966).
132See, e.g., Griffin v. Illinois, 351 U.S. 12 (1956).
133See e.g., Eisenstadt v. Baird, 405 U.S. 438 (1972) (right to privacy extended to include
the use of contraceptives by unmarried persons); and Roe v. Wade, 410 U.S. 113 (1973) (right
to privacy includes a women’s interest in terminating pregnancy).

‘3See generally D. Costa, “Reportability”, supra, note 116 at 1124-28, and Note, “Contact
Tracing for HIV Infection: A Plea for Privacy” (1989) Colum. Hu. Rts. L. Rev. [forthcoming]
See also W. Parmet, “Public Health Protection and the Privacy of Medical Records” (1981)
16 Harv. C.R.-C.L. L. Rev. 265 at 294-98 (discussion of Whalen); and W. Winslade, “Confi-
dentiality of Medical Records: An Overlook of Concepts and Legal Policies” (1982) 3 J. Legal
Med. 497 at 518.

135429 U.S. 589 (1977).
136Ibid. at 600.
137Ibid. at 595.
138Ibid. at 602.
139Ibid. at 602 n.29.

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ANONYMOUS HIV ANTIBODY TESTING

Court was confident, however, that the security provisions in the statute
were adequate to prevent any unwarranted disclosuire. 140

Although the decision in Whalen found no violation of informational
privacy, it does not necessarily preclude any challenge to the mandatory
reporting of HIV infection. 4 1 The State may be able to present a far less
convincing argument in defense of the mandatory reporting of HIV infection
given the limited epidemiological significance of this information. 42 Fur-
ther, contact tracing in effect necessitates the disclosure of highly sensitive
information, unlike the statutory scheme in Whalen under which disclosure
was strictly limited. Given the significantly more invasive nature of this
practice, the constitutional review of HIV reporting and contact tracing
might be more stringent than that illustrated in Whalen.

In a related decision, Bowers v. Hardwick,143 a sharply divided Supreme
Court held that the constitutional right to privacy did not extend to private
consensual homosexual sodomy. 144 Although this decision did not address
the issue of informational privacy, Bowers does illustrate the reluctance of
the Court to expand the privacy guarantees under the Constitution. Even
more marked in Bowers is the pronounced judicial hostility to the rights of
gay people. 145 Although the mandatory reporting of HIV infection affects a
far broader class than gay people, it is clear that the hostility expressed in
Bowers, both towards gay people in particular and the right to privacy in
general, does not point in the direction ofjudicial sympathy for the interests
affected in the mandatory reporting of HIV infection.

14Ibid. at 601. So long as statutory or regulatory safeguards give only authorized officials
access to the information, the reporting requirement is likely to be held constitutional. See W.
Parmet, “Public Health Protection and the Privacy of Medical Records”, supra, note 134 at
294.
141See L. Gostin, M. Clark & W. Curran, “AIDS: Legal and Policy Implications of the Ap-
plication of Traditional Disease Control Measures” in L. Gostin & W. Curran, eds, “AIDS:
Law and Policy” (1987) 15 Law, Medicine and Health Care 27 [hereinafter “AIDS: Legal and
Policy Implications”] at 28-31 and M. Barnes, “Confidentiality”, supra, note 116 at 4-1, 4-5.

142See the discussion below in Part III D.
143Bowers, supra, note 130.
144Bowers has produced a flood of law review articles, all uniformly deploring the position
taken by the Supreme Court and arguing that the decision is not consistent with privacy
jurisprudence in the United States. See e.g.: M. Kohler, “History, Homosexuals, and Homo-
phobia: The Judicial Intolerance of Bowers v. Hardwick’ (1986) 19 Conn. L. Rev. 129; C.
Ferree, “Bowers v. Hardwick The Supreme Court Closes the Door on the Right to Privacy and
Opens the Door to the Bedroom” (1988) 64 Denver U.L. Rev. 599; M. Siderides, “Bowers v.
Hardwick The Invasion of Homosexuals’ Right of Privacy” (1987) 8 Bridgeport L. Rev. 229;
and T. Stoddard, “Essay: Bowers v. Hardwick Precedent by Personal Predilection” (1986) 54
U. Chi. L. Rev. 1129.
145Chief Justice Burger was, in particular, impressed by the long standing condemnation of
homosexual practices: “proscriptions against sodomy… [are]… firmly rooted in Judaeo-
Christian moral and ethical standards.” Bowers, supra, note 130 at 2847.

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Because seropositive individuals are unlikely to form a suspect class
under the American equal protection provisions, heightened scrutiny of a
mandatory reporting scheme would more likely take place on the grounds
of informational privacy. The development of this privacy right is, however,
as yet too uncertain to predict with confidence that the courts would ex-
tensively review a mandatory reporting scheme under this doctrine. Inter-
estingly, the situation is exactly the reverse under Canadian constitutional
law: rather than an argument based on informational privacy, a much more
compelling argument can be made that seropositive individuals constitute
what is roughly the equivalent to a “suspect” class under s. 15 of the Charter.

3.

The American Constitutional Analysis of HIV Disease and the
Charter

The analysis of HIV disease under the American Constitution can be
distinguished from the Charter for a variety of reasons. First, although
American case law on informational privacy might provide the most prom-
ising basis for challenging a mandatory reporting scheme in the United
States, it is unlikely that these precedents would be useful in Canada because,
unlike the American Constitution, the guarantees in the Charter have not
yet been interpreted as including a right to privacy. 146 In particular, Amer-
ican precedents relating to informational privacy are unlikely to apply to
Charter challenges. For example, in Charboneau v. College of Physicians
and Surgeons of Ontario, the Ontario High Court held that the inspection
of patient records, allegedly infringing a patient’s right to confidentiality,

1

461t is possible that the right to privacy in the United States may have some bearing on the
interpretation of s.7 of the Charter which provides that “everyone has the right to life, liberty
and security of the person and the right not to be deprived thereof except in accordance with
the principles of fundamental justice.” In R. v. Morgentaler, [19881 1 S.C.R. 30, where the
Court held that restricted assess to abortion constitutes a breach of security of the person, the
Court expressly declined to consider whether the right to security of the person extended further
to protect “either interests central to personal autonomy, such as a right to privacy, or interests
unrelated to criminal justice.” A compelling argument can be made that a mandatory HIV
reporting scheme also infringes on security of the person. Mandatory reporting discourages
individuals from taking HIV tests and ignorance of their HIV status places them at a greater
health risk, particularly as some treatments for HIV infection are now becoming available.
Ignorance of their status also places their sexual partners at an extremely high risk of becoming
infected. Much as the denial of access to abortions constitutes a violation of security of the
person, denial of adequate and confidential health care for individuals infected with HIV may
as well violate s.7.

Rather than develop a s.7 argument, this paper will examine s. 15 for two reasons. First, an
adequate examination of the s.7 implications of a mandatory reporting scheme is properly the
subject of a separate paper. Second, a more compelling, and less complex, argument can be
made that HIV infection constitutes a physical disability under s.15.

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ANONYMOUS HIV ANTIBODY TESTING

does not violate s. 7 (security of the person) or s. 8 (unreasonable search
and seizure) in the Charter.147

Although American case law on informational privacy may not be well
received by the Canadian courts, it is important to point out that the less
impressive aspects of American privacy and equality jurisprudence, which
reveal a disturbing judicial and legislative hostility towards gay people, have
also not found fertile ground in Canada. For example, the question raised
in Bowers has been settled by legislative reform; sodomy between consenting
persons twenty-one years or older was decriminalized in Canada in 1969.148
Moreover, although the question has yet to be examined by the courts,
numerous authors have argued that homosexuals are a protected class under
s. 15 of the Charter, the American precedents which refuse to extend equal
protection to homosexuals may bear little relation to the Charter.149 Finally,
discrimination on the basis of sexual orientation is prohibited in the Human
Rights statutes in Ontario, Quebec, Manitoba and the Yukon. 150

The more important issue, and one unrelated to the legal status of gay
people, is whether seropositive individuals enjoy any particular constitu-
tional protection. This question takes on an entirely different perspective
in Canada because the Charter, unlike the American Constitution, extends
equal protection to the physically disabled. In Cleburnel
l the American
Supreme Court specifically declined to apply equal protection analysis to
the physically disabled, but the Charter expressly includes this class of in-
dividuals under the equality provisions in s. 15. If HIV disease is held a
physical disability under s. 15 of the Charter, the complex and difficult task

47In Charboneau v. College of Physicians and Surgeons of Ontario (1985), 22 D.L.R. (4th)
1
303 (Ont. H.C.), the High Court considered whether the provisions of the Health Disciplines
Act, R.S.O. 1980, c. 196 which provided for random peer assessment of doctors practices and
permitted assessors to inspect confidential patient records, violated the patient’s right to security
of the person or constituted an unreasonable search and seizure. The Court held that security
of the person does not entail a right to privacy and that even if s.7 does provide some patient
right to confidentiality, this right is qualified and subject to valid legal requirements [at 309].
The interest of maintaining acceptable standards of medical competence was sufficient to justify
the inspection of patient records [at 311]. The Court also held that the requirement to produce
patient records did not constitute an unreasonable search and seizure because the assessor had
no power to seize the records [at 313].

14$Criminal Code, R.S.C. 1970, c. C-34, s.158.
14 9See J.E. Jefferson, “Gay Rights and the Charter” (1985) 43 U.T. Fac. L.Rev. 70; N. Duple,
“Homosexualit6 et droits i l’galit dans les Chartes canadienne et qu~becoise” (1984) 25 C.
de D. 801; A. Bruner, “Sexual Orientation and Equality Rights” in A.E Bayefsky & M. Eberts,
eds, Equality Rights and the Canadian Charter of Rights and Freedoms (Agincourt, Ont.:
Carswell, 1985) at 457.

150See e.g., S.O. 1981, c. 53 as am.
151See Cleburne, supra, note 127 and accompanying discussion.

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of identifying a constitutionally protected interest is more easily realized
under Canadian than American constitutional law.

B. The Charter: Is HIV Disease a Physical Disability Under s. 15?

Although most human rights legislation in Canada has provided pro-
tection for the physically disabled for over ten years, 152 and s. 15 of the
Charter provides that “Every individual is equal before and under the law
and has the right to the equal protection and equal benefit of the law without
discrimination … based on … physical disability”, the content of this leg-
islative and constitutional protection has not been extensively explored by
the courts. In particular, it is not yet clear whether protection for the phys-
ically disabled extends to those who suffer from an infectious illness. 153

The mandatory reporting of HIV infection affects two somewhat dif-
ferent classes of individuals: those who are asymptomatically infected with
HIV and have not yet developed any life-threatening symptoms, and those
whose HIV infection has progressed to the point where they are susceptible
to opportunistic infections which could be life-threatening. It is this second
condition that is commonly called AIDS, although it is important to em-
phasise that the sharp line typically drawn between asymptomatic HIV
infection and AIDS is becoming increasingly blurred. As recent medical
evidence indicates, HIV disease is a progressive condition and most, if not
all, HIV-infected individuals will at some point develop some symptoms
of HIV disease.154 Accepting for the moment this increasingly artificial dis-
tinction, the question of whether both AIDS and asymptomatic HIV infec-

152W.S. Tarnopolsky, Discrimination and the Law, rev’d ed. by W. Pentney (Toronto: DeBoo,
1985) 9-15. Although the mandatory reporting of HIV infection could theoretically be chal-
lenged under the provisions of the Ontario Human Rights Code, supra, note 150, which pro-
hibits discrimination on the basis of a handicap [s.1 and s.9(b)] and provides that the provisions
of the Code “prevail” over legislation in contravention of the Code [s.46(2)], I have chosen to
consider primarily the provisions of the Charter.

First, although the Code takes primacy over other pieces of legislation, courts have only
rarely invalidated legislation because it conflicts with human rights legislation. See, e.g., Re
Winnipeg School Division No. 1 v. Craton, [1985] 2 S.C.R. 150. See generally, Discrimination
and the Law, ibid., Cum. Supp. at 60-61. Further, any “clear legislative pronouncement” is
sufficient to override the Human Rights Code; the provisions of the Ontario Health Promotion
and Protection Act are likely sufficient. In contrast, the “notwithstanding” provision of s.33 of
the Charter seems to require a more express statement by the legislature in order to override
a Charter guarantee. Most importantly, the human rights codes have not been interpreted by
the courts as requiring them to scrutinize legislation; unlike the Charter, human rights codes
are directed primarily at private acts of discrimination, not the review of legislation.

1530nly one Canadian decision has addressed this issue, Biggs v. Hudson. See discussion
154See supra, note 3.

beginning at infra, note 173 and accompanying text.

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ANONYMOUS HIV ANTIBODY TESTING

tion are physical disabilities under the Charter will turn on two central
issues. First, can a contagious illness, such as AIDS or asymptomatic HIV
infection, constitute a physical disability and second, is a contagious illness
such as asymptomatic HIV infection, which exhibits only limited physical
impairment, a physical disability?

1.

American Precedent on Physical Disability, Infectious Diseases, and
HIV

Given the minimal Canadian precedent on the question of whether a
contagious disease such as HIV infection is a physical disability under hu-
man rights legislation or s. 15 of the Charter, it is helpful to consider first
the now extensive American precedent related to this issue. In School Board
v. Arline,155 the United States Supreme Court addressed the issue of whether
a person who suffers from an infectious and communicable disease, in this
case tuberculosis, was protected under the Rehabilitation Act of 1973 which
prohibits discrimination on the basis of a physical handicap. 156 The Court
held that a person afflicted with tuberculosis was a “handicapped individ-
ual” within the meaning of the Act.’ 57 The Court stated that if Arline could
establish that despite her condition she was “otherwise qualified” within
the meaning of the Act, she could be reinstated in her job as a public
elementary school teacher: “the fact that a person with a record of a physical
impairment is also contagious does not suffice to remove that person from
coverage under [the Act].”‘ 15 8

155480 U.s. 273, 94 L.Ed. 2d 307, 107 S. Ct. 1123 (1987) [hereinafter Arline cited to S. Ct.).
Numerous articles examining Arline have been published, many of which consider whether
AIDS is also a covered handicap under the Federal Rehabilitation Act of 1973, Pub. L. No.
93-112, 87 Stat. 357 (codified as amended at 29 U.S.C. s. 701-96 (1982)) [hereinafter Reha-
bilitation Act]. See, e.g., R. Wasson, “AIDS Discrimination under Federal, State, and Local
Law after Arline” (1987) 15 Fla. St. U.L. Rev. 221; R. Lipshutz, “Arline: Real Protection Against
Discrimination for Society’s New Outcasts?” (1988) 27 Stetson L. Rev. 517; J. Leader, “Running
From Fear Itself: Analyzing Employment Discrimination Against Person with AIDS and other
Communicable Diseases under Section 504 of the Rehabilitation Act of 1973” (1987) 23 Wil-
lamette L. Rev. 857; L. Farley, “AIDS and Employment Discrimination: Employer Guidelines
and Defenses – School Board of Nassau County, Florida v. Arline” (1988) 23 Wake Forest L.
Rev. 305.

156Rehabilitation Act, ibid. Prior to Arline, only one other court had dealt with the issue of
whether the Act extended protection to individuals with a contagious disease: New York Assoc.
for Retarded Children v. Carey, 612 E2d 644 (2d Cir. 1979). Here the court held that children
who suffered from serum hepatitis B, a contagious disease, could not be excluded from regular
classrooms unless the School Board could demonstrate that these children presented a health
hazard to those around them.

157Arline, supra, note 155 at 1127.
158Ibid. at 1130-31. The case was remanded to the District Court to determine whether Arline
was otherwise qualified for her position, that is, whether her contagious condition presented
a significant health and safety risk to others.

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Although the Court expressly declined to address the issue of whether
HIV infection could constitute a physical handicap under the Act, 159 sub-
sequent decisions of lower courts have extended the application of the Act
to both individuals who have developed AIDS and those who are have
asymptomatic HIV infection. In Chalk v. United States District Court, the
Ninth Circuit Court of Appeals held that Chalk, a teacher of hearing-
impaired students who was diagnosed with AIDS, was entitled to protection
under the Federal Rehabilitation Act, citing Arline as authority for the prop-
osition that the Act is fully applicable to individuals who suffer from con-
tagious diseases. 60 Doe v. Centinela Hospital, a recent decision of a
California District Court, held that individuals who are HIV infected and
have not developed AIDS are also protected under the Act because they are
perceived as having a disabling handicap, regardless of the extent of their
actual physical disability.16’ Citing Arline, the Court concluded that “dis-
crimination based solely on fear of contagion is discrimination based on a
handicap.” 62

The U.S. Federal Justice Department has also recently issued a legal
opinion affirming that individuals who are HIV-infected are covered by the
Rehabilitation Act. 163 This opinion reversed the Department’s earlier inter-
pretation of the Act to the effect that although AIDS produced disabling
effects and was thus a handicap under the Act, asymptomatic HIV infection
did not qualify as a handicap because there was no physical impairment. 64
The Department had argued that the ability to transmit disease, absent any
disabling aspects of disease, was not a handicap under the Act and that
discrimination based on the fear of contagion was not prohibited by the
Act. The recent Department opinion entirely abandons this argument and
brings the Justice Department’s official policy in line with Arline and its
progeny.

’59Ibid. at 1128 n.7.
16Chalk v. United States District Court Central District of California, 840 E2d 701, (9th Cir.
1988). See also Doe v. Dolton Elementary School District, DC NIII, EDiv, No. 87 C 8713
(23 June 1988) reported in AIDS Policy and Law, vol. 3, No. 14, (27 July 1988) (which held
that a student with AIDS “is likely to be considered a handicapped individual” under the
Rehabilitation Act, citing Arline as authority).

’61Doe v. Centinela Hospital, DC CCalif., No. CV 87-2514 PAR (PX) (30 June 88) also

reported in AIDS Policy and Law, vol. 3, No. 13, (13 July 1988).

’62Doe v. Centinela Hospital, ibid. at 12.
163Lambda Legal Defense and Education Fund, AIDS Update, vol.3, No.3. (November 1988)
at 2. The Justice Department concluded that HIV infection, even if asymptomatic, limits one’s
ability to procreate and engage in sexual activity, thus constituting a physical disability. The
memorandum also noted that the negative reaction of others is a further limitation suffered
by seropositive individuals.

‘6See L. Farley, “Employment Discrimination – AIDS” (1988) 23 Wake Forest L. Rev. 305

at 320, which discusses this 1986 United States Department of Justice Memorandum.

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The inclusion of both asymptomatic HIV infection and AIDS under
the definition of a physical handicap in American case law may become an
important precedent for the development of both human rights and Charter
jurisprudence in Canada. The inclusion of a contagious disease as a physical
disability, whether or not there is some physical manifestation of impair-
ment, represents a critical evolution in the law.

Arline, however, only considers the scope of remedies afforded by fed-
eral legislation under the Rehabilitation Act and does not address possible
constitutional remedies, likely because none are available under American
law. As noted above, the physically handicapped do not form a suspect class
under American equal rights case law. The decision in Arline thus has little
constitutional significance in American law and could not be used in the
United States as a basis on which to challenge an HIV mandatory reporting
and contact tracing program. Because the Charter expressly includes the
physically disabled under s. 15, however, the significance of Arline as a
persuasive precedent in Canada is not confined exclusively to human rights
legislation. Arline may prove even more useful as a precedent to aid in the
development of a unique Canadian constitutional jurisprudence that pro-
vides equality protection for the interests of the physically disabled.

2.

HIV Disease and Physical Disability under the Charter

Because the Charter provides no definition of physical disability, it is
fair to assume that as a first step the courts would consider the various
definitions of physical disability that are provided in related human rights
legislation. For example, as considered in Arline, the American Rehabili-
tation Act of 1973 defines a handicapped individual as “any person who (i)
has a physical or mental impairment which substantially limits one or more
of such person’s major life activities, (ii) has a record of such an impairment,
or (iii) is regarded as having such an impairment.”‘ 165 The regulations pro-
mulgated by the Department of Health and Human Services further define
“physical impairment” as “any physiological disorder or condition … af-
fecting one or more of the following body systems: neurological; muscu-
loskeletal; special sense organs; cardiovascular; reproductive digestive,
genito-urinary; heric and lymphatic; skin; and endocrine.” 166 In addition,
the regulations define “major life activities” as “functions such as caring
for one’s self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.”‘ 167

16529 U.S.C. 706(7)(B).
16645 CFR 84.3(j)(2)(i) (1985).
16745 CFR 84.3(D(2)(ii) (1985).

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The definition of handicapped under the Rehabilitation Act is similar
to that of the Ontario Human Rights Code which defines a handicapped
person as one who “has or has had, or is believed to have or have had, (i)
any degree of physical disability … that is caused by … illness and, without
limiting the generality of the foregoing, including diabetes mellitus, epilepsy,
any degree of paralysis, amputation, lack of physical coordination …,,168
Significantly, both the American and Ontario provisions provide protection
for those who are perceived to have a handicap, whether or not they are in
fact handicapped. The Ontario Code also expressly refers to disabilities
caused by illness whereas the American provision more generally refers to
physical impairments which limit a person’s major life activities.

In human rights legislation across Canada, “physical disability” has
been interpreted as providing protection to individuals who suffer the dis-
abling effects of bodily injury, disease, or congenital deformity. Physical
conditions caused by accidents,1 69 asthma,170 speech impediments, 17’ hy-
pertension and high blood pressure, 172 have been held to be physical dis-
abilities. These cases illustrate that “disability” has not been confined to
medical conditions with immediately apparent symptoms, such as the ob-
vious impairment suffered by someone in a wheelchair, but has been in-
terpreted as including medical conditions that have no manifest symptoms,
such as hypertension. There can thus be no question that nonapparent phys-
ical conditions resulting from an illness can constitute a physical disability,
and this has obvious significance for people with HIV disease.

Consistent with this body of law governing the definition of physical
disability is the recent decision of the British Columbia Human Rights
Tribunal in Biggs v. Hudson, the first Canadian decision addressing the
question of whether protection for the physically disabled extends to people
with AIDS, where it was held that all aspects of HIV disease, including the
period of asymptomatic infection, constitute a physical disability under the
B.C. Human Rights Act. 173 In Biggs, the Tribunal went even further to hold

168Supra, note 150, s. 9(l)(b).
169Commission des Droits de la Personne v. Ville de Laval (1983), (1984) 5 C.H.R.R. D/1 819

(S.C.).

17OLegge v. Princess Auto and Machinery Ltd (1983), 4 C.H.R.R. D/1339.
171Matlock v. Canora Holdings Ltd (1983), 4 C.H.R.R. DI/1576.
‘ 72 Wamboldt v. Dept. of National Defence (1983), 4 C.H.R.R. D/1479.
173Biggs v. Hudson (1988), 9 C.H.R.R. D/5391 is the first Canadian decision dealing with
AIDS as a physical disability, decided pursuant to s. 5 of the B.C. Human Rights Act S.B.C
1984, c. 22 which 5 prohibits discrimination in housing on the basis of a “physical or mental
disability”. See also P. Bryden and B. Jarrett, “AIDS, Employment Discrimination and the B.C.
Human Rights Act” (1988) 9 C.H.R.R. 7. In Biggs, the tribunal held that AIDS “constitutes
a physical disability within the meaning of the Act” and that “any person who is seropositive

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ANONYMOUS HIV ANTIBODY TESTING

that individuals who suffer discrimination because they are perceived as
being members of a class of persons who are at a higher risk of HIV infection,
such as homosexuals or IV drug users, are also entitled to protection under
the Act. 174 Although the question has not yet been addressed by a board of
inquiry under the Ontario Human Rights Code, it is also the official policy
of the Ontario Human Rights Commission that AIDS is a physical disability
under s. 9(l)(b) of the Code.175 The courts have yet to examine the physical
disability provision under s. 15 of the Charter;, however, it can be expected
that they will carefully examine the precedents in Biggs and Arline and may
find their reasoning persuasive. 176

Given the extreme consequences of an advanced HIV infection that
has progressed to AIDS, an obvious case can be made that AIDS is a disease
that causes a significant degree of physical disability and thus falls squarely
within the scope of not only the related human right’s provisions, but the

by manifesting antibodies to HIV has a physical disability” [at 12].

Prior to the B.C. decision, there was also one Canadian labour arbitration case which ad-
dressed the issue of AIDS in the employment context: Pacific Western Airlines Ltd. v. Canadian
Air Line Flight Attendants Assoc. (16 April 1987) (B.C. Labor Arbitration). The tribunal held
that a flight attendant who had been suspended with pay because it was suspected he had
contacted AIDS constituted a breach of the collective agreement because the employer had
“failed to establish that there is any risk that an employee with AIDS will transmit it to fellow
employees or passengers” [at 3].
174The tribunal held “that any person who belongs to groups widely regarded as especially
vulnerable to HIV infection but who are (sic) not HIV infected or whose HIV status is unknown
(“high risk groups”), are protected under the term “physical disability” in the Act” (at 16).
The tribunal thus extended the protection for the disabled to all IV drug users and homosexuals,
as groups who may be subject to discrimination “because of a perception or impression that
the person or classes of persons would be a carrier or transmitter of HIV” (at 16).
175 Ontario Human Rights Commission, Annual Report 1985-86 at 33; see also, Ontario
Human Right Commision, Policy Statement on HIV/AIDS-Related Discrimination, pre-pub-
lication version (June 1989), where the Commission states that “all persons infected with HIV
a HIV-related illness, including those who are asymtomatic, are entitled to the full protection…”
of the Human Rights Code. According to the Commissioner, the Code also prohibits discrim-
ination against groups “who are believed to be a high risk or carriers of HIV.” The Code’s
explicit prohibition of discrimination on the ground of sexual orientation provides further
protection to gay men who are perceived as being at high risk.

For an examination of whether the physical disability provisions in Canadian human rights
legislation include contagious illnesses such as AIDS, see J. Kenney, “AIDS in the Workplace:
Termination, Discrimination and the Right to Refuse” (1987) Dalhousie L. J. 581, at 599-602.
After examining the Arline, the author concludes that there “is nothing in the Canadian human
rights legislation that would prevent a wide interpretation of handicap from being made, thereby
offering protection to person with communicable diseases and AIDS.” [at 601.]
’76The Supreme Court has not yet considered the physical disability provisions in s.15 of
the Charter. In E. Mrs. v. Eve, [1986] 2 S.C.R. 388 at 436-7, the Supreme Court did, however,
address the issue of mental disability. The Court briefly considered whether the equality rights
of the mentally disabled were violated if the government could not act on their behalf to obtain
a non-therapeutic sterilization. The Court found no such violation.

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Charter as well. However, two questions remain: first, whether HIV disease
can be distinguished from other illnesses because it is infectious, and second,
whether asymptomatic HIV infection constitutes a physical disability.

(a) An Infectious Disease as a Physical Disability

The Court in Arline refused to accept that an infectious disease should
be distinguished from other illnesses causing a physical disability. The
School Board had argued that Arline had been dismissed not because of her
physical impairment but because of the threat of contagion that she pre-
sented to others, and that the Act did not prohibit discrimination based
solely on the contagious effects of a disease. 177 The Court concluded that it
“would be unfair to allow an employer to seize upon the distinction between
the effects of a disease on others and the effects of a disease on a patient
and use that distinction to justify discriminatory treatment.”‘ 78 Permitting
such discrimination would be inconsistent with the purpose of the Act
“which is to ensure that handicapped individuals are not denied jobs or
other benefits because of the prejudiced attitudes or the ignorance of
others.”179

In a passage that reveals much about the Court’s sensitivity to the larger
social construction of disease and the role of human rights provisions in
providing some protection to those victimized by this construction, the
Court in Arline stated:

[S]ociety’s accumulated myths and fears about disability and disease are as
handicapping as are the physical limitations that flow from actual impairment.
Few aspects of a handicap give rise to the same level of public fear and mis-
apprehension as contagiousness … . The fact that some persons who have
contagious diseases may pose a serious health threat to others under certain
circumstances does not justify excluding from the coverage of the Act all per-
sons with actual or perceived contagious diseases.”80

The Court criticized the “complex and often pernicious mythologies about
the nature, cause, and transmission of illness”‘ 181 and refused to permit
discrimination based solely on these social constructions.

Nonetheless, the Court recognized the legitimate need to prevent ex-
posing others to significant health and safety risks, and acknowledged that
a person who poses a significant risk of communicating an infectious disease

177Supra, note 155.
178Ibid. at 1128.
179Ibid. at 1129.
180Ibid. at 1129-30.
MIbid. at 1129 n.12.

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to others in the workplace will not be “otherwise qualified” for their job. 182
Only handicapped individuals who are “otherwise. qualified” for their job
are entitled to protection under the Rehabilitation Act. 183 However, those
handicapped with a contagious illness are entitled to “an individualized
inquiry” to determine whether their condition presents a significant health
and safety risk to others and the courts must base their finding on reasonable
medical judgments about the nature, duration, and severity of the risk of
contagion. 184 The Court stressed the importance of relying on scientific and
medical evidence of the risk of contagion rather than on “prejudice, ster-
eotypes, or unfounded fears.”‘ 85

Although the Charter provides no definition of physical disability, the
general interpretation of this legal class under Canadian human rights leg-
islation, and the American precedent in Arline, together provide a com-
pelling argument that HIV disease, although a contagious illness, constitutes
a physical disability under s. 15. It would be unjust to deny constitutional
protection to all individuals with contagious diseases, given that the degree
of risk of contagion significantly varies among different infectious diseases.
It is not unreasonable that measures to control contagious diseases should
be subject to constitutional scrutiny, particularly as many of these measures

182 bid. at 1131 n.16.
183See Southeastern Community College v. Davis, 442 U.S. 397, 60 L.Ed. 2d 980; 99 S. Ct.
2361 (1979): “An otherwise qualified person is one who is able to meet all of a program’s
requirements in spite of his handicap.”

The “otherwise qualified” requirement is similar to the bona fide occupational qualification
(“b.f.o.q.”) defense which is available in all the Human Rights Codes in Canada. See Discrim-
ination and the Law, supra, note 152 at 9-22. For a discussion of the content of the b.f.o.q.
defense, see Ontario Human Rights Commission v. Etobicoke (Borough oJ) (1981), [1982] 1
S.C.R. 202, 132 D.L.R. (3d) 14.

184Supra, note 155 at 1131.
185Ibid. at 1131. The emphasis on scientific evidence is also stressed in Ontario Human
Rights Commission v. Etobicoke (Borough o), supra, note 183 at 212 [S.C.R.] where the Court
stated that mere “impressionistic” evidence that firefighting was “a young man’s game” was
not sufficient to establish a defense for age discrimination in the employment of firefighters.
Statistical and medical evidence on the aging process, a detailed description of the duties
performed, and an account of the effect such conditions have on employees are required in
order to establish a bona fide occupational qualification. But see Bhinder and Canadian Human
Rights Commission v. C.N.R. [1985] 2 S.C.R. 561, 23 D.L.R. (4th) 481, where the Court
suggested [at 588 S.C.R.] that “a requirement of general application concerning the safety of
employees” (in this case, the requirement to wear hard hats) could constitute a b.f.o.q.

Much as the protection for the handicapped under the American and Canadian human rights
legislation is subject to reasonable limits, such as the “otherwise qualified” requirement or the
“b.f.o.q.” defense, protection for the physically disabled under the Charter is limited by s.1
which provides that the guarantees of the Charter are subject to “reasonable limits prescribed
by law as can be demonstrably justified in a free and democratic society.” Any constitutional
protection available to individuals who are HIV infected is subject to these limits, a question
which is considered in the final section of this paper.

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involve some of the most extreme deprivations, such as loss of employment,
isolation and quarantine, and, in this case, mandatory reporting and contact
tracing. Merely because a disease is contagious, individuals and govern-
ments should not be free to inflict these deprivations without at least some
evidence that the risk of contagion warrants such highly invasive measures.

HIV disease, in particular, is not highly infectious and can only be
transmitted through sexual intercourse, blood transfusions, and the shared
use of needles. 86 For example, in the case of employment, to permit dis-
crimination on the basis of unfounded and uninformed fears of casual trans-
mission would only increase the stigma of this disease and condone the
social rejection of those afflicted. Similarly, with regard to the mandatory
reporting of HIV infection, to decline any judicial review merely because
HIV disease is infectious would fuel the unfounded fears and anxieties that
surround AIDS. Instead of promoting this damaging and inaccurate social
construction, it is vital that legal opinion take a lead in protecting those
infected with HIV.

Any protection, of course, is subject to limitations, and the safeguarding
of the public health is obviously a paramount concern in relation to con-
tagious diseases. Yet these limitations cannot be immune from review
merely because they involve a contagious illness, particularly given that our
often pervasive but uninformed construction of disease can result in un-
warranted discrimination based on unreasonable fears of contagion, or in
an ineffective and discriminatory public health policy that does little to
contain the spread of infection.

(b) Asymptomatic HIV Infection as a Physical Disability

It is somewhat easier to argue that HIV disease that has progressed to
AIDS constitutes a physical disability because it is an illness which causes
immediate, significant, and life-threatening physical impairment. The same
cannot be said of asymptomatic HIV infection.187 Given that the majority
of individuals affected by a mandatory reporting and contact tracing pro-
gram are individuals with asymptomatic HIV infection, whether this con-

186 0f course, contact tracing of HIV infection is precisely designed to address the risk of
infection presented by sexual intercourse and IV drug use. Contact tracing is thus much more
obviously related to preventing contagion than is employment discrimination based on un-
founded fears of casual transmission. The point, however, of this section of the paper is not
to examine whether contact tracing is a reasonable response to the risk of contagion; rather,
the issue is whether HIV disease constitutes a physical disability and there is no reason, merely
because it is contagious, that is should not be considered as such. An appropriate response to
the risk of contagion is discussed in the last section of this paper.

187See R.A. Kushen, “Asymptomatic Infection with the AIDS Virus as a Handicap under

the Rehabilitation Act of 1973” (1988) 88 Col. L. Rev. 563.

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ANONYMOUS HIV ANTIBODY TESTING

dition is considered a physical disability is critical. As noted, although the
Court in Arline expressly declined to rule on this question, subsequent Amer-
ican judicial decisions and the recently issued United States Department of
Justice opinion conclude that asymptomatic HIV infection is a covered
handicap under the Rehabilitation Act. 188 The British Columbia Human
Rights Tribunal in Biggs also concluded that asymptomatic HIV infection
constitutes a physical disability under the B.C. Human Rights Act. There
are convincing reasons for so holding.

First, it is not accurate to characterize HIV infection as entirely without
physical impairment. Although most individuals who are HIV-infected have
not yet developed any severe symptoms of AIDS, HIV infection does have
adverse physiological effects on several body systems, such as the hemic,
lymphatic and reproductive systems.189 As a result of HIV infection, an
individual can exhibit several abnormal immune functions, such as a de-
crease in the number of T-helper cells in the blood, which indicate an im-
paired ability to fight infection. 190 The danger of infection also makes
reproduction and sexual intercourse dangerous activities. Because of the
high risk of perinatal transmission of the virus, HIV-infected individuals
are unable to safely become parents.19’

Second, as noted above, it is becoming increasingly evident that the
clear distinction between asymptomatic HIV infection and AIDS is obso-
lete. 192 As treatments for HIV infection increasingly become available, the
definition of AIDS as a terminal disease is being called into question. Con-
versely, as evidence mounts that the majority, if not all, HIV-infected in-
dividuals will develop some HIV-related illness, the concept of strictly
asymptomatic HIV infection is also becoming outmoded. As our under-
standing of this illness evolves, the artificial dichotomy of asymptomatic
HIV infection and AIDS is being replaced by the concept of HIV disease
a chronic infection that produces a continuum of conditions with a great
–
variety of clinical symptomatology in most infected people.

188See Chalk v. United States District Court, supra, note 160 and Doe v. Centinela Hospital,

supra, note 161. See also infra, Part III.

189See R.A. Kushen, “Asymptomatic Infection with the AIDS Virus as a Handicap under
the Rehabilitation Act of 1973”, supra, note 187 at 572. As medical diagnostic techniques
become more sophisticated, it is becoming possible to detect an increasing number of asymp-
tomatic conditions, such as genetic diseases and cancer, before there are any clinical manifes-
tations. Ibid.

190T-helper cells are one of the body’s primary means to fight infection. Ibid. at 580.
191See M. Rogers, “Modes, Rate, and Risk Factors for Perinatal Transmission of HIV”
(Atlanta, Centers for Disease Control) (abstract) in AIDS: The Scientific and Social Challenge,
V International Conference on AIDS at 199, where the author notes that “the frequency of
transmission from mothers to infants.., is around 30%.”

192See the discussion at supra, note 3.

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Third, to restrict AIDS discrimination on the basis of physical disability
and at the same time permit discrimination on the basis of the underlying
condition of AIDS, HIV infection, would entirely defeat the purpose of
“protecting handicapped individuals from deprivations based on prejudice,
stereotypes, or unfounded fears.” 193 HIV-related discrimination is rarely a
function of the manifest physical symptoms of the disease, rather this dis-
crimination is almost exclusively informed by fears of contagion. All people
with HIV disease, both those asymptomatically infected and those with
AIDS, are equally subject to these fears which leave them vulnerable to
extremely invasive and prejudicial discrimination. Unlike most matters in-
volving the physically disabled, with regard to HIV disease the critical issue
for both human rights legislation and the Charter is not what discriminatory
measures are legitimate given the physical impairment of the disease, but
what measures are acceptable given the contagious nature of the illness.
Because almost all HIV-related discrimination is rooted in concerns re-
garding contagion, it is the infectious status of people with HIV disease that
must command attention, not the precise nature of their manifest physical
impairment. The lack of immediate physical impairment in those asymp-
tomatically infected is irrelevant. The central issue must focus on the right
of all HIV-infected individuals not to be subject to discriminatory action
informed by unfounded fears that are unrelated to any actual risk of con-
tagion. The attitudes of others, rather than any resultant manifest physical
disability, may be the primary handicapping effect of the illness, and it is
precisely these “accumulated myths and fears about disability and disease”
that protection for the handicapped is intended to remedy.194

Finally, the recent recognition by the Supreme Court of Canada in Law
Society of British Columbia v. Andrews that the equality provision in s. 15
extends beyond the enumerated classes, such as physical disability, and can
include a “discrete and insular minority”, such as non-citizens permanently
resident in Canada, is of vital importance to HIV-infected individuals. 95
Wilson J. notes that: “It can be anticipated that the discrete and insular
minorities of tomorrow will include groups not recognized as such today”

193Arline, supra, note 155 at 1131.
1941bid. at 1129.
195The Law Society of British Columbia v. Andrews, [1989] 1 S.C.R. 143 [hereinafter
Andrews]. With the exception of LaForest J., the entire Court agreed with the reasons of
McIntyre J. and his adoption of the concept of s.15 protection for a “discrete and insular
minority” that falls outside of the enumerated classes of interests in s. 15. This test was first
outlined in the now historic footnote number four in the decision of the U.S. Supreme Court
in UnitedStatesv. Carolene Products Co., 304 U.S. 144(1938). Wilson J., in concurring reasons,
further elaborated on this concept. Although LaForest J. did not expressly refer to the “discrete
and insular” category, he agreed that “a group of persons who are relatively powerless politically,
and whose interests are likely to be compromised by legislative decisions” are entitled to s. 15
review.

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ANONYMOUS HIV ANTIBODY TESTING

and that “the context of the place of the group in the entire social, political
and legal fabric of our society” must be considered in determining whether
the protection offered by s. 15 is appropriate. In particular, groups “lacking
in political power” should be protected from legislative action which “brings
about or reinforces the disadvantage” suffered by these groups.

Although this concept is only in its infancy in Canadian constitutional
law, and the Court has only provided a very general outline of what might
constitute a discrete and insular minority, a compelling argument can be
made that HIV-infected individuals do constitute such a group. Although
some HIV-infected people may not see themselves as members of a discrete
group sharing common characteristics, because HIV infection has affected
a broad class of people with little in common (such as gay people, IV drug
users, and recipients of blood products), given the minority status of HIV-
infected people and the condemning social construction imposed on their
status qua HIV-infected, it is abundantly clear that society views these in-
dividuals as a discrete minority sharing certain characteristics. Social con-
demnation has unquestionably led to the acutely insular and outcast status
of those who are infected. The obvious concerns about being publicly iden-
tified as HIV-infected are equally disempowering, limiting the exercise of
what political power may be available to this group, and the often inflated
concerns and deep-rooted fears about contagion leave them extremely vul-
nerable to prejudicial discrimination.

More importantly, the extent to which infected people have been able
to mobilize themselves and create community-based political and service
organizations to meet their needs, indicates that HIV-infected people are
not an identifiable group only because they are victimized by social stigma:
instead of their group identification being solely a function of their vilified
status, many members of this group have successfully defined their shared
interests and identity and, much like people with cancer or people in wheel-
chairs, the twist of fate that has resulted in their illness or disability has not
only brought a diverse group of people together, but empowered them. A
social group thus emerges.

As the defining characteristic of this group is their status as HIV-infected
people, all of whom are presumed to remain continually infectious, the
distinction between those who have developed a severe form of HIV in-
fection, AIDS, and those who are asymptomatic, is entirely irrelevant. They
are all assumed to be equally contagious and, as this aspect of their condition
is the one most likely to attract prejudicial action by others, they all share
a common and compelling interest to ensure that measures to contain con-
tagion are reasonable, effective, and as non-intrusive as possible. Whether
they are identified as a group of the physically disabled or a discrete and

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insular minority, the argument in favour of some form of s. 15 review
commands the closest attention.

C. Structure of Review under s. 15

The recent decision of the Supreme Court of Canada in Andrews is the
first attempt by the Court to test the waters of the equality provisions of
the Charter. Although Andrews may raise more questions than it answers
(much to the delight of constitutional scholars), the decision does provide
a conceptual framework within which an HIV mandatory reporting and
contact tracing program can be examined. Most importantly, the decision
resolves first, the critical question regarding who bears the onus of proof to
establish whether or not the impugned legislation is reasonable and second,
whether different levels of scrutiny will apply to the different classes of
interests protected under s. 15.

In Andrews the Court held that in order to establish a s. 15 claim, the
complainant must first identify a s. 15 interest that has been prejudicially
affected by the law in question. 196 It is not sufficient merely to establish, as
in the case of HIV disease, that the impugned legislation draws distinctions
on the basis of physical disability; it is essential that the complainant also
establish that the legislation involves “prejudice or disadvantage”. 197 As
McIntyre J., speaking for the Court on this point, notes, a “differential
impact” is not sufficient to establish a violation of s. 15; the complainant
must also consider “the effect of the impugned distinction or classification”
and “show that the legislative impact of the law is discriminatory”. 198 If
this can be established, then under s. 1 the burden of proof shifts to the
state where “any justification, any consideration of the reasonableness of
the enactment; indeed, any consideration of factors which could justify the
discrimination and support the constitutionality of the impugned enactment

1961n Andrews, supra, note 195 at 164, McIntyre J. raises the possibility that s.15 may only
apply to legislation and not other forms of state action such as “governmental or qtiasi-
governmental regulations, rules, or requirements”, even though this broader kind of state action
is clearly subject to review under other sections of the Charter (see Dolphin Delivery Ltd v.
R. W.D.S. Union, Local 580, [1986] 2 S.C.R. 573). Although in all provinces the inclusion of
AIDS as a reportable disease is a regulation, not a legislative act, because the enforcement of
a HIV mandatory reporting scheme is intimately rooted in the language of, for example, the
Ontario Health Protection and Promotion Act, there could be no question that a challenge to
this state policy would necessarily impugn a piece of legislation. In any event, it is not the
regulation mandating the reporting of AIDS that is the subject of the challenge. Rather it is
the legislative provision expressly requiring physicians to report the names all persons who
have a reportable disease that is disputed. See the discussion above in Part II.

197Andrews, supra, note 195 at 180-181 (per McIntyre J.). The prejudicial effects of a man-

datory reporting scheme were outlined in Part II.

198Ibid. at 182.

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ANONYMOUS HIV ANTIBODY TESTING

would take place.” 199 McIntyre J. stresses that it is important to keep s. 15
and s. I “analytically distinct” because once a violation of s. 15 has been
found, under s. 1 the onus rests on the state to establish any justification
for this violation. 200 The complainant need only establish that the legislation
has a prejudicial and discriminatory impact; the reasonableness of the leg-
islation is a matter to be addressed by the state under s. 1.

In Andrews, the Court was also unwilling to adopt the American model
where different “standards of scrutiny” are applied to the different classes
of interests recognized under equal protection clauses. McIntyre J. considers
that this whole issue is subsumed under s. 1 of the Charter, under which
the reasonableness of the legislation will be examined. 201 This appears to
lay to rest any concerns that certain of the enumerated classes of interests
in s. 15, such as age discrimination or physical disability, would give rise
to a lower level of judicial scrutiny.202

D. The Content of s. 1 Analysis

It has been argued in this paper that HIV infection constitutes a physical
disability under s. 15 of the Charter. A mandatory reporting and contact
tracing program, as mandated by the provincial legislation, prejudicially
affects the interests of seropositive individuals by presenting a threat of
unwarranted disclosure of their HIV status, thus placing them at a consid-
erable risk of HIV-related discrimination. If the complainant can success-
fully establish that the impugned legislative scheme has a discriminatory

1991bid.
200Ibid. at 178.
2OlIbid. at 178-79.
202This issue was considered by the Ontario Court of Appeal in McKinney v. University of
Guelph (1987), 24 O.A.C. 245, a case dealing with the age discrimination under s. 15. The Court
of Appeal held that unlike American law, different standards of review ought not to be applied
to the different classes of interests under s. 15 and expressly disapproved of the lower court’s
finding that age discrimination, because it is not typically based on feelings of “hostility and
intolerance” should be viewed “less suspiciously”. Noting that a “particular instance of age or
sex discrimination may be massively more hurtful or immeasurably less justifiable than a
particular instance of racial inequality”, the Court held that all violations of s. 15 should be
equally examined under s. 1. Rather than ranking the importance of the class of interest affected,
the Court focussed on the impact of the violation on the affected class. If this impact was
severe, a closer judicial review was warranted.

This line of reasoning finds no better illustration that in relation to the argument of HIV
disease as a physical disability. Although much discrimination on the basis of a physical dis-
ability, like age discrimination, may not be based on “feelings of hostility and intolerance”,
this cannot be said with regard to a highly feared and stigmatized contagious illness. Further,
given that these fears could result in the most severe kinds of prejudicial action, such as
quarantine, if these measures were unwarranted, this would constitute a “massively hurtful”
violation of the Charter. It is the drastic nature of the legislative action that should command
judicial attention, not any a priori classification of the nature of the interest affected.

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and prejudicial impact, the burden then shifts to the state under s. 1 to
establish that its mandatory reporting and contact tracing program is a
“reasonable limit … demonstrably justified in a free and democratic
society. ‘203

In Andrews, the s. 1 review procedure adopted by the Court is a modified
version of the analytical structure of s.1 earlier outlined by the Chief Justice
in R. v. Oakes204 and R. v. Edwards Books and Art Ltd.205 In Andrews, the
Court essentially adopted a two-part s. 1 analysis. First, the Court examines
the nature and purpose of the enactment, with a view to deciding whether
the government interest or policy objective is of sufficient importance to
warrant overriding a provision of the Charter. Wilson J., supported by two
of the five other justices who participated in the decision, 206 argued that the
government objective must be “pressing and substantial” in order to ov-
erride the Charter, thus adopting the more “onerous” standard earlier out-
lined in R. v. Oakes.207

The remaining three justices disagreed with Wilson J.’s position.
McIntyre J., joined by Lamer J., argued that this standard “may be too
stringent for application in all cases” and proposed a somewhat lower test:
the Court should examine the nature and purpose of the enactment “with
a view to deciding whether the limitation represents a legitimate exercise
of the legislative power for the attainment of a desirable social objective
which would warrant overrriding constitutionally protected rights. ‘208 It
appears that the government objective need only be “legitimate” under this
test, rather than “pressing and substantial”. 209

2030n s.1 analysis, see generally R.M. Elliot, “The Supreme Court of Canada and Section 1
– The Erosion of the Common Front” (1987) 12 Queen’s Law J. 277; and J. Cameron, “The
Forgotten Half of Dolphin Delivery:. A Comment on the Relationship Between the Substantive
Guarantees and Section I of the Charter” (1988) 22 U.B.C. L. Rev. 147.

24[1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200 [hereinafter Oakes cited to S.C.R.] (s.l analysis
of the reverse onus provision of the Narcotic Control Act which violated s.l 1(d) (“innocent
until proven guilty”) and s.7 (“right to life, liberty, and security of the person”) of the Charter).
205[1986] 2 S.C.R. 713 [hereinafterEdwards] (s.l analysis of Sunday closing legislation which

violated s.2(a) “freedom of conscience and religion” of the Charter).

39 per Dickson C.J.C..

206Dickson C.J., and L’Heureux-Dub6 J..
207Andrews, supra, note 195 at 153-54 per Wilson J., citing Oakes, supra, note 204 at 138-
208Andrevs, ibid. at 184 per McIntyre J..
209LaForest J.’s position was less structured. He stressed that the s.1 “analysis should be
functional, focussing on the character of the classification in question, the constitutional and
societal importance of the interests adversely affected, the relative importance to the individuals
affected of the benefit of which they are deprived, and the importance of the state interest.”
[Ibid. at 198]. Although in “general agreement” with McIntyre J., LaForest J. adds one qual-
ification: he would prefer “to think in terms of a single test for s. 1, but one that is to be applied
to vastly differing situations with the flexibility and realism inherent in the work ‘reasonable’
mandated by the Constitution.” [Ibid.] The evaluation of the state objective would be only

19891

ANONYMOUS HIV ANTIBODY TESTING

The second step of the two-part s. 1 analysis focusses on what the Court
refers to as the “proportionality test”. Wilson J. describes this test as an
examination of “the nature of the right, the extent of its infringement and
the degree to which the limitation furthers the attainment of the legitimate
goal reflected in the legislation. 210 McIntyre J. largely agreed with this
description, but to it he would have added that the inquiry also involves
an examination of “the importance of the right to the individuals or group
concerned, and the broader social impact of both the impugned law and its
alternatives. ’21’ This formulation of the proportionality test thus enjoys the
support of at least five of the six judges on the panel, and it can be confidently
relied upon as the best indicator of where the Court will be heading in future
equality cases.

Given the new complexities of s. 15 analysis, it comes as no surprise
that the Court in Andrews seems to make a strategic retreat from the broad
language that the Chief Justice previously employed in Edwards to describe
the proportionality test under s. 1, where it was held that measures violating
the guarantees of the Charter had to be “rationally connected” to the state
objective, to “impair as little as possible” the right in question, and to “not
so severely trench on individual or group rights that the legislative objective,
albeit important, is nevertheless outweighed by the abridgment of rights.3212

Although Wilson J. cites Edwards as supporting her formulation of the
proportionality test, McIntyre J. pointedly avoids citing this language from
Edwards, and the test that both Wilson J. and McIntyre J. articulate ex-
pressly avoids the more sweeping implications of the Edwards test. Although
under their test the impugned legislation must “further the attainment” of
the legislative objective, it does not appear to have to meet the stricter
standard of being “rationally connected” to this objective as outlined in
Edwards. Although McIntyre J. will consider “the broader social impact of
the law and its alternatives”, this is an important retreat from the language
in Edwards which held that the legislation must impair “as little as possible”
the right in question. McIntyre J., while willing to consider alternative leg-
islative schemes, is conscious that the legislature must be given “reasonable
room to manoeuvre” and is obviously very anxious to avoid involving the
courts in closely weighing the merits of various legislative options to de-
termine which one impairs “as little as possible” the right in question.

one consideration of many under LaForest J.’s proposal; it would not form the first of a two
part s.1 analysis. Although he does not expressly state his position, he would appear to largely
concur with McIntyre J.’s argument that the state interest does not need to be “pressing and
substantial”.

2101bid. at 154 per Wilson J.
2
1Ibid. at 184 per McIntyre J.
212Edwards, supra, note 205 at 768.

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Finally, the formulation of the proportionality test in Andrews has been
uniquely tailored for the new demands of s. 15 analysis: the Court recognized
the importance of examining both the nature of the s. 15 right being violated
and the extent of the violation. Implicit in the Court’s formulation of the
proportionality test is the recognition that discrimination on the basis of,
for example, race or religion would rarely be tolerated, and the Court thus
acknowledged that the nature of the right affected may be a critical factor.
Other enumerated grounds in s. 15, such as age or physical disability, which
can frequently given rise to legitimate differential treatment, may not create
a similar presumption. Unlike American equality jurisprudence, however,
the classification of the right is not conclusive. Rather, the Court will also
examine the extent to which the right is violated. The Court thus appears
to have recognized that a highly prejudicial instance of discrimination on
the basis of physical disability, because of the severe extent of the violation,
may command closer review than a relatively minor instance of discrimi-
nation on the basis of religion, for example, that has only a minimal impact.

Although much remains unclear about the s. 1 analysis of violations
of s. 15, Andrews does provide some critical direction. First, the objective
of the legislation must be considered, and second, a somewhat revised pro-
portionality test is applied to determine whether the violation is “de-
monstrably justified”. With these directives in mind, what follows is a s. 1
analysis of an HIV mandatory reporting and contact tracing program.

1.

Does HIV Mandatory Reporting Protect Public Health?

A s. 1 review of an HIV mandatory reporting program is not unlike
the criteria that have been described by Professor Grad in his Public Health
Law Manual where he formulates a general standard for the evaluation of
public health legislation:

Does this law or regulation have a valid and demonstrable public health pur-
pose? And if so, are the requirements of this law or regulation … reasonably
designed to accomplish that purpose under the existing circumstances, without
causing hardships or dislocations unrelated or unnecessary to that purpose? If
these questions cannot be answered in the affirmative, then the proposed law
or regulation will … fail … to meet the requirements of public health.213

In the language of Andrews and in the context of Charter review, this public
health inquiry could be presented as follows: first, it must be established
that mandatory reporting has a demonstrable public health purpose; and
second, mandatory reporting must further the attainment of this public

2 13EP Grad, Public health law manual; a handbook on the legal aspects of public health

administration and enforcement, 3d ed. (New York: Am. Pub. Health Ass’n, 1973) at 40.

1989]

ANONYMOUS HIV ANTIBODY TESTING

health objective without unacceptably trenching on the equality rights of
those affected.

Even under the more onerous duty outlined by Wilson J. in Andrews,
whereby the government must establish that its legislative objective is
“pressing and substantial”, there can be no question that the public health
objective behind mandatory reporting, that of protecting public health and
preventing the spread of HIV infection, is of critical importance and would
undoubtedly justify some interference with equality rights.214

The much more difficult question is whether the means chosen to pur-
sue this government objective are reasonable and demonstrably justified,
that is, whether they meet the proportionality test under s. 1. Both the nature
of the right affected by mandatory reporting and the highly prejudicial im-
pact of an HIV mandatory reporting scheme have been described in detail
above. As is made clear in Andrews, an evaluation of the relative importance
of providing protection to this class of interests, and a consideration of the
extent to which the interests of this class are violated, are both critical
elements of the proportionality test. However, the test upon which a man-
datory reporting scheme will either rise or fall, be it under the proportionality
test or Professor Grad’s public health criteria outlined above, is whether
mandatory reporting in fact furthers the attainment of the government ob-
jective of protecting public health and preventing the spread of HIV, or
whether alternative measures are available which are both more effective
and significantly less invasive.

Numerous reasons have been advanced to defend the public health
objective of mandatory reporting. Most obviously, mandatory reporting of
HIV infection with identifiers is required if the province is to conduct a
state-supervised contact tracing program, and the public health objective of
contact tracing is discussed in detail below. Although additional reasons for
mandating the reporting of HIV infection have been proposed, they are not
reasonably related to any public health objective.

First, it has been argued that the reporting of HIV infection serves a
valuable epidemiological function by providing information about the ex-
tent and spread of HIV infection. In fact, the reporting of all findings of
HIV seropositivity and all cases of fill-blown AIDS are statistically distinct;
only the second provides significant epidemiological information.2 5 Sur-
veillance of the incidence of full-blown AIDS is essential in order to better

214Section 2 of the Ontario Health Promotion and Protection Act, supra, note 10 states that
“The purpose of this Act is to provide for… the prevention of the spread of disease and the
promotion and protection of the health of the people of Ontario.”

215″AIDS: Legal and Policy Implications”, supra, note 141 at 29-30; and Confronting AIDS,

supra, note 1 at 118-9.

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understand and curb the spread of the disease. 216 The mandatory reporting
of all cases of AIDS to both the provincial Medical Officer of Health and
the Federal Centre for AIDS provides this vital epidemiological informa-
tion.217 The reporting of all seropositive individuals, on the other hand,
serves only a very limited epidemiological function. Individuals seeking
HIV testing are self-selected: they are likely to be members of one of the
recognized groups at a greater risk for HIV infection and the data collected
from these tests would not provide a reliable gauge of the extent of exposure
beyond these groups. 218

Whatever limited epidemiological information reporting of HIV infec-
tion may provide, it does not in any event require that infected individuals
be identified by name; initials and date of birth, for example, are sufficient
to prevent any duplication of records. 219 There is no rational connection
between the reporting of the names of seropositive individuals and the
public health objective of securing epidemiological information useful in
curbing the spread of AIDS.

In defense of the reporting of HIV-infected individuals by name, it is
also argued that if the public health authorities have the names of infected
individuals, the government can ensure that they receive adequate post-test
counselling about how to prevent placing others at risk of infection. When

2 16Surveillance provides “data on the prevalence, incidence, and distribution of disease or
infection in the population. Such data can be used to monitor the spread of a disease, to shed
light on the mechanisms of transmission, to help in designing public health measures to prevent
the spread of a disease, to evaluate the effectiveness of interventions, and to guide planning
for the provision of facilities. Data on HIV infection and related diseases are critical to all
aspects of coping with the epidemic.” Confronting AIDS, supra, note 1 at 117.
217The reporting of AIDS for epidemiological purposes does not require that patients be
identified by name. Neither the Federal Centre for AIDS nor the Atlanta Centers for Disease
Control identify AIDS cases by name. See the discussion above in Part II.
218The most accurate method to obtain epidemiological information about the extent of HIV
infection in the entire population is to conduct anonymous tests of representative groups such
as in New York State where all babies born in the state for a period of six months were given
anonymous HIV tests. See “AIDS Survey Shows Course of Infection” The New York Tines
(15 July 1988) Bl. In the United States, seroprevalence studies are also conducted in prisons
and drug treatment centers. See AIDS: A Public Health Challenge, supra, note 66 3-14 to 3-
15.
219For example, the State of Oregon requires the reporting of HIV antibody test results without
personal identifiers. Oregon’s Task Force on AIDS, noting the stigma associated with AIDS,
stated that “mandatory reporting, by name, of positive HIV antibody tests… will discourage
many from seeking the test and thus lead to a serious under-estimate of the number actually
infected.” The form includes demographic information including the patient’s age, sex, and
county of residence, thus permitting more accurate data for epidemiologic studies. See AIDS:
A Public Health Challenge, ibid. at 3-37.

1989]

ANONYMOUS HIV ANTIBODY TESTING

effective AIDS treatments become available, the authorities will also be able
to contact persons who are at risk of developing AIDS. 220

The State of Oregon, where the reporting of HIV infection without
identifiers is required, is able to accomplish both these objectives without
requiring that the names of those testing positive be reported.221 In Oregon,
all health care providers who request an HIV antibody test are at the same
time required to fill out a form verifying that the patient has been given
state-approved educational materials about AIDS and measures to prevent
the transmission of HIV. The State also maintains lists of physicians re-
questing the test so that if anti-viral HIV therapies become available, the
public health department will be able to notify the physicians. The Oregon
program successfully illustrates that the reporting of HIV infection with
identifiers is not required in order to ensure proper counselling and the
availability of information about current HIV treatments. 222
220See AIDS: A Public Health Challenge, ibid. at 3-9 to 3-13. At least seven states in the
United States currently require the reporting of HIV infection with identifiers (Arizona, Col-
orado, Idaho, South Carolina, Minnesota, Missouri, and Wyoming) [Ibid. at 3-12]. Nonetheless,
anonymous testing is also available in these states, as is the case in all states, at Alternate Test
Sites. A more recent study presented at the Fifth International Conference on AIDS (June
1989) found that as of October 1988, sixteen states required the reporting of HIV infection
with names. See J. Stehr-Green, “HIV Infection Reporting in the United States” (Atlanta:
Centers for Disease Control) (abstract) in AIDS: The Scientific and Social Challenge, V Inter-
national Conference on AIDS at 59.

Of the states with reporting requirements, Colorado has most aggressively pursued the re-
porting of the names of seropositive individuals. The stated purpose of the Colorado regulation
is to: (a) alert authorities of the presence of HIV infected individuals, (b) ensure proper coun-
seling, (c) monitor the incidence of infection, and (d) contact tracing. See Confronting AIDS,
supra, note 1 at 118.

22See AIDS: A Public Health Challenge, supra, note 66 at 3-37.
n2 This may not be the case where the majority of instances of HIV infection is found in
the IV drug use population. At the recent Fifth International Conference on AIDS, Molly Coye
of the New Jersey State Department of Health presented a cogent argument in favour of
mandatory reporting in such circumstances (60 per cent of AIDS cases in New Jersey are IV
drug users). Although noting that the quality of epidemiological information derived from HIV
reporting is low, and the costs of contact tracing are extremely high, she nonetheless argued
for some kind of reporting enabling the Department of Health to ensure that HIV-infected IV
drug users could benefit from new HIV treatments as they become available (for example, the
use of prophylaxis can now prevent the onset of PCP pneumonia-a leading cause of death in
AIDS patients). Unlike other individuals at risk for HIV disease, IV drug users may not have
access to appropriate medical facilities and will not be able to benefit from new treatments
unless they can be located by health officials.

Although the argument is compelling in New Jersey where the majority of AIDS patients
are IV drug users who probably have no health insurance, the situation is very different in
Ontario where all citizens have free access to health care and only a minority of AIDS cases
to date are found in the IV drug use population. In any event, Coye agreed that any reporting
scheme can only operate effectively if anonymous HIV tests are also freely available, in case
the patient does not want test results reported to the Department of Health. See M. Coye,
“The Role of HIV Infection Reporting in Public Health” (abstract) in AIDS: The Scientific
and Social Challenge, V International Conference on AIDS at 59.

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McGILL LAW JOURNAL

[Vol. 34

In fact, the only reason for which the reporting of HIV-infected indi-
viduals by name is necessary is in order to facilitate state-supervised contact
tracing. It serves no other legitimate public health purpose. Mandatory re-
porting of names is not necessary for epidemiological requirements, and
proper counselling about AIDS can effectively be addressed by far less in-
vasive means.

2.

Does Contact Tracing Protect Public Health?

The primary objective behind contact tracing is to interrupt the cycle
of infectious disease.22 3 Contact tracing was first devised in the 1930s as
part of the effort to treat venereal disease; officials identified the sexual
contacts of a venereal disease patient, informed them of the possibility of
infection, and, if necessary, treated them. 22 4 Unlike venereal disease, there
is as yet no effective treatment for HIV infection, although anti-virals such
as azidothymidine (“AZT”) and certain treatments for opportunistic infec-
tions have proven effective in slowing the progression of the disease. Al-
though the treatment of HIV infection is becoming an increasingly
important objective, the primary purpose of HIV contact tracing remains
the need to inform individuals who have no idea that they are at risk of
HIV infection from unknowingly acquiring or transmitting infection. 22 5 It
can also be argued that individuals have the right to know that they may
have been exposed to HIV, separate from any risk they may present to
others, even though this involves burdening the contact with the knowledge
that he or she may in the future develop a fatal disease.22 6

23″AIDS: Legal and Policy Implications”, supra, note 141 at 30.
224A.M. Brandt, No Magic Bullet: A Social History of Venereal Disease in the United States

Since 1880, supra, note 26 at 150-51.

2 5AIDS: A Public Health Challenge, supra, note 66 at 3-16. As treatments are developed, it
will become more and more critical that all HIV-infected persons be aware of their HIV status
so that they can consider options for early treatment. However, to date only a fraction of those
infected with HIV know their HIV status (for example, 88 to 94 per cent of people infected
with HIV in New York City have never been tested for the virus: see “With Few Tested, AIDS
Debate Erupts” The New York Times (23 July 1989)). As a result, there are increasing calls for
some form of contact tracing which might ensure that more people infected with HIV would
be informed of their status and seek treatment. Nevertheless, even those in favour of contact
tracing for these purposes, such as Dr Stephen C. Joseph, New York City Health Commissioner,
at the same time recognize that it is also essential that anonymous testing be available in order
to protect confidentiality. [Ibid.] There is little doubt that the provision of anonymous HIV
tests will remain the most important means by which to encourage people to determine their
HIV status.

226″[I]ndividuals who may have no reason to suspect that they may have been exposed to
HIV should have the opportunity to know that they may have been so exposed.”, National
Advisory Committee on AIDS, “HIV Infection Contact Tracing Recommendations” (1987)
13:4 Canada Diseases Weekly Report.

1989]

ANONYMOUS HIV ANTIBODY TESTING

Because health education designed to modify high-risk sexual behavior
and IV drug use is the only means currently available to prevent the spread
of HIV, education is a critical aspect of containing this epidemic. As part
of a general HIV education program, contact tracing can be useful because
it permits health-care professionals to target individuals unknowingly at risk
of HIV infection who, notwithstanding the general attempts to educate the
public about HIV transmission, may not have altered their high-risk activity
and continue to present a risk of infection to others. Individual counselling
of these individuals has been shown to be effective in encouraging behaviour
changes and reducing the transmission of HIV in some groups. 2 27

For example, women of child-bearing age are usually the highest priority
of any HIV contact tracing program. 228 These women, possibly the sexual
partners of closeted bisexual males or IV drug users who are HIV-infected,
may have no knowledge of the risk of exposure, and should they choose to
have children there is a significant risk that the child will be infected if the
mother is already infected. Contact tracing enables these women to delay
pregnancy or consider an abortion.

Contact tracing has also proven useful in encouraging a reduction of
high-risk activity in rural areas where there may be a significant number of
people who remain unaware of the risk of HIV transmission and the need
to alter high-risk behaviour.229 Because there may be a perception in rural
areas that there is a lower risk of HIV transmission than in urban areas,
and because general attempts to educate the public about these risks may
be largely confined to urban centres with higher seroprevalence rates, contact
tracing in this setting could be useful. In particular, because the gay com-
munity is likely undeveloped in rural areas, unlike in most urban areas,
there may have been little attempt by this community to educate itself about
the risk of HIV infection. Men who are having sex with men in these settings
may not even primarily regard themselves as gay and thus assume that they
are at not at risk even though they continue to practice high risk behavior.
Contact tracing in this particular setting can be effective in reducing the
transmission of HIV.

227See M. Becker & J. Joseph, “AIDS and Behavioral Change to Reduce Risk: A Review”

(1988) 78 Amer. J. Pub. Health 394.

228Perinatal transmission of HIV presents a significant danger that a child will be born HIV
infected. “HIV Infection Contact Tracing Recommendations”, supra, note 224 at 13. See also
“Partner Notification for Preventing Human Immunodeficiency Virus (HIV) Infection- Col-
orado, Idaho, South Carolina, Virginia” (1988) 260 J. Amer. Med. Assoc. 613 at 615 (where
the Center for Disease Control in Atlanta considers the contact tracing programs in effect in
these states and concludes that “the partner-notification process can target risk-reduction mes-
sages to those at greatest risk of acquiring or transmitting infection”).

229R.E Wykoff et aL, “Contact Tracing to Identify HIV Infection in a Rural Community”

(1988) 259 J. Amer. Med. Assoc. 3563.

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[Vol. 34

Outside of these limited examples, however, contact tracing is at best
only marginally effective in reducing the spread of HIV.230 First, HIV in-
fection, especially in its asymptomatic stage, is currently an underdiagnosed
disease. Until an effective antiviral therapy becomes available, it is likely
that only a small minority of HIV-infected individuals will be diagnosed, 231
and contact tracing is unlikely to identify a significant number of the over
30,000 Canadians infected with HIV. Second, a large number of exposed
sexual partners may not be locatable, given that a seropositive individual
could have presented a risk of infection to all of his or her sexual partners
over the last five to ten years. Third, contact tracing is labour-intensive and
potentially very expensive. 232 Particularly in urban areas with high sero-
prevalence rates and multiple sexual partners, contact tracing could prove
prohibitively expensive and public funds might be much more effectively
spent on general education programs, especially those designed to reach
groups of individuals practising high-risk behaviour.

Contact tracing is useful only as a adjunct to current HIV risk-reduction
programs; it must be “tailored to complement, rather than compete with,
the primary tool for HIV prevention, education. ‘ 233 Its usefulness is essen-
tially restricted to reaching women of child-bearing age, and homosexual
and bisexual men in low-prevalence or rural areas. In these circumstances,
however, it is evident that contact tracing fulfills an important public health
function related to the prevention of the spread of HIV. What is not clear,
however, is whether the mandatory reporting of the names of all seropositive
individuals must be systematically reported to the state in order to ensure
that contact tracing, where appropriate, will be performed.

Although most public health studies favour some limited form of HIV
contact tracing, they unanimously stress the critical importance of anony-
mous HIV testing in preventing the spread of HIV infection. 234 These studies

23See G.W. Rutherford & J.M. Woo, “Contact Tracing and the Control of the Human

Immunodeficiency Virus Infection” (1988) 259 J. Amer. Med. Assoc. 3609.

231If the names of seropositive individuals are reported to the state, it is likely that an even
smaller fraction of HIV infection is being identified, because fewer people would be willing to
request an HIV antibody test under these circumstances.
232See AIDS: A Public Health Challenge, supra, note 66 at 3-29, 3-30. In Oregon, for example,
it is estimated that its costs $95 for each person counselled, tested, or notified under its contact
tracing program.
233G.W. Rutherford & J.M. Woo, “Contract Tracing and the Control of the Human Im-
2
34See “AIDS: Legal and Policy Implications”, supra, note 141 at 29-31 (1987); and L. Gostin,
M. Clark, and W. Curran, Acquired Immunodeficiency Syndrome: Legal and Regulatory Policy,
supra, note 116 at 329-35. See also Confronting AIDS: Update 1988, supra, note 3 at 80-82
(where the Institute of Medicine of the National Academy of Science recommends that “man-
datory reporting of seropositive test results with identifiers should not be required at this time”
[at 82] because even though the reporting of HIV infection “is consistent with the view that

munodeficiency Virus”, supra, note 230 at 3610.

1989]

ANONYMOUS HIV ANTIBODY TESTING

591

typically recommend that physicians be primarily responsible for initiating
contact tracing where appropriate. The state generally only participates in
the contact tracing upon the request of the physician, and the results of all
HIV tests with identifiers are not systematically reported to the state.

A contact tracing program based on mandatory reporting is simply not
effective in reducing the spread of HIV. Numerous public health studies
conclude, on the basis of overwhelming evidence, that unless confidentiality
can be assured by anonymous testing, individuals will be discouraged from
seeking voluntary HIV tests, thereby effectively preventing the early detec-
tion of HIV exposure and depriving individuals of the opportunity to receive
counselling and information about behaviour changes that could decrease
the risk of transmitting the HIV infection.235 Mandatory reporting, rather

the disease is really a continuum from HIV infection to AIDS”, this argument “is not sufficiently
compelling to risk deterring individuals from being tested” [at 82]. The Institute instead rec-
ommends a voluntary, limited contact notification program that does not involve mandatory
reporting [at 8 1-2]. For a discussion of the evolution of American public health policy on this
question, see, R. Bayer, Private Acts, Social Consequences: AIDS and the Politics of Public
Health (New York: Free Press, 1989) at 101-36. For public health studies in Canada see AIDS:
A Perspective for Canadians, supra, note 2 at 10-11 (which recommended the provision of
anonymous HIV testing and a limited form of contact tracing: disclosure of HIV status without
the patient’s consent only if the health care provider has reasonable cause to believe that the
HIV infected person may present a threat to others); M. Somerville & N. Gilmore, “Human
Immunodificiency Virus Antibody Testing in Canada” (Montreal: McGill Centre for Medicine,
1987) (a study undertaken for consideration by the National Advisory Committee on AIDS
of Health and Welfare Canada which also recommended the provision of anonymous HIV
tests and limited contact tracing by the health care provider); and the CBA Report, supra, note
4 at 44-56 (which recommended that personal identifiers “should be omitted from the reporting
procedures” [at 49] because reporting requirements may “inhibit certain members of high-risk
groups from coming forward for voluntary testing” [at 48]. The report recommended a limited
contact tracing program where the “initial obligation for contact tracing should be placed on
the patient’s physician” [at 52]. Only physicians unwilling to perform contact tracing would
be required to report the identity of the patient to enable the Medical Officer of Health to
proceed with contact tracing [at 52).]
235A study done in Oregon in 1986 found that the provision of anonymous (clients identified
only by number) versus confidential (clients required to give name, birthdate, address and
telephone number) HIV antibody testing increased the number of clients at Oregon test sites
by 50 per cent, ranging from 17 per cent for IV drug users to 125 per cent for gay men. The
study showed that anonymous testing preferentially drew gay men, currently the group in
Oregon with the highest risk of HIV infection. See Public HIV Testing: Anonymous or Con-
fidential? [March 1987] also reported in AIDS Health Project University of California San
Francisco, Focus: A Guide to AIDS Research, vol. 3, No. 12 and The Lancet (13 August 1988).
Oregon’s task force on AIDS thus recommended that positive HIV antibody tests be reported
anonymously to the public health officials. See AIDS: A Public Health Challenge, supra, note
66 at 3-37.

A more recent study presented at the Fourth International Conference on AIDS in Stockholm,
Sweden (Johnson, Ky, Jackson, “The Impact of Mandatory Reporting of HIV Seropositive
Persons in South Carolina” (Univ. of South Carolina School of Public Health, 1988) (Abstract
No. 6020), reported in Lambda Legal Defense and Education Fund, AIDS Update, vol.2, No. 11

McGILL LAW JOURNAL

[Vol. 34

than increasing the number of people who will be encouraged to seek out
HIV testing and counselling, may actually have the opposite effect. Alter-
native contact tracing programs that do not involve mandatory reporting
are simply a much more effective way to prevent the spread of HIV.

3.

Alternative Contact Tracing Programs

Although the courts will consider less invasive alternatives to legislation
that violates equality rights, there is no question that the courts will refuse
to be enticed into detailed fine-tuning of legislative decisions. McIntyre J.
in Andrews emphasized that legislatures continually make “distinctions and
categorizations in the pursuit of the role of government”, many of which
could give rise to some s. 15 challenge. 236 Citing the Chief Justice in Ed-
wards, McIntyre J. notes that the courts “are not called upon to substitute
judicial opinions for legislative ones as to the place at which to draw a
precise line. ‘237

(August 1988) at 5-6) found that the rate of monthly attendance by men reporting homosexual
activity decreased by 51 per cent after implementation of a mandatory reporting policy. At-
tendance by seropositive persons decreased by 43 per cent. The researchers concluded that
mandatory reporting is associated with a decrease in attendance for testing and counselling by
individuals most at risk for exposure to HIV.On the other hand, in Colorado, the first state to
require the mandatory reporting of the names ofseropositive individuals, state officials believe
that there has been no noticeable decrease in the number of individuals who volunteer to be
tested since the reporting began. See ibid. at 3-38, and E Judson & T. Veron, Jr., “The Impact
of AIDS on State and Local Health Departments: Issues and a Few Answers” (1988) 78 Amer.
J. Pub. Health 387 at 390. Officials believe that the greatest impediment to expanded voluntary
testing is the fear of facing a positive result, not any fear of names being reported. It should
be noted, however, that Colorado public health officials have expressly announced their will-
ingness to use pseudonyms in their testing program in order to alleviate any concerns about
confidentiality, which obviously defeats the purpose of obtaining identifying information. It
would also explain why they have not experienced a large reduction in voluntary testing. See
also R. Bayer, Private Acts, Social Consequences: AIDS and the Politics of Public Health, supra,
note 234 at 119-21.

A pamphlet widely distributed by the AIDS Committee of Toronto This is a Test-This is
Only a Test (November 1987) stresses that the results of HIV tests are reported to provincial
health officials which could result in contact tracing and AIDS-related discrimination. The
pamphlet points out that the “only effective way to protect confidentiality is to have the test
done anonymously,” and provides information on how to obtain an anonymous test. The
pamphlet provides some indication that the groups at a greater risk of HIV infection are well
informed of the mandatory reporting requirements in Ontario and of the critical need to secure
anonymous testing. It is reasonable to conclude that if this anonymous testing were not freely
(although illegally) available at the Hassle Free Clinic in Toronto, the number of voluntary
HIV testing performed in the city would dramatically drop, as was the case in Oregon and
South Carolina.

236Andrews, supra, note 195 at 190-91 per McIntyre J..
2371bid. citing Edwards, supra, note 205 at 781-82 per Dickson C.J.C.

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ANONYMOUS HIV ANTIBODY TESTING

In McKinney v. University of Guelph, a case dealing with age discrim-
ination under s. 15, the Ontario Court of Appeal equally emphasized the
limited role for the courts in examining alternative legislative schemes. In
McKinney, the Court examined legislative provisions permitting mandatory
retirement and concluded that mandatory retirement at age sixty-five was
a reasonable impairment of the right to freedom from age discrimination,
noting that “legislation does not have to be tuned with great precision to
withstand judicial scrutiny, and it is not our role to consider how the leg-
islation might have been made more precise.” 238 As in Edwards, where the
Court declined to consider whether employers with more than seven em-
ployees and who observed the Saturday Sabbath were constitutionally en-
titled to be exempt from Sunday closing laws, the courts will refuse to be
drawn into detailed balancing of interests. Provided the legislature draws a
reasonable line, to be determined rather broadly within its discretion, the
courts will likely decline to interfere.

Notwithstanding this judicial caution, the impugned legislation in An-
drews, which restricted entry to the bar to Canadian citizens only, was struck
down by the Court. Wilson J., joined by Dickson C.J.C. and I’Heureux-
Dub6 J., held that the citizenship requirement was not “carefully tailored
to achieve” the legislative objective of ensuring that Canadian lawyers were
familiar with Canadian institutions and customs. 239 LaForest J. agreed and
noted that “less drastic means for achieving these objectives are available”,
such as a declaration of an intention to become a citizen. 240

Although it is recognized that contact tracing is rationally connected
to a public health objective which justifies some impairment of a s. 15
guarantee, the various contact tracing programs that can be employed dra-
matically differ from one another, unlike the legislative options considered
in McKinney and Edwards. Simply put, one involves mandatory reporting
and the other does not. The examination of these alternatives is not a
question of detailed fine-tuning of legislation. Like the legislative option
available in Andrews which led LaForest J. to comment that a “less drastic
means” was available to pursue the government objective, there are alter-
native contact tracing programs which much less seriously impair the in-
terests of HIV- infected people and more successfully promote the objective
of the protection of public health.

There are essentially two options available to the legislature. As in
Ontario, the first involves the mandatory reporting of HIV infection with

238McKinney, supra, note 204 at 288. At the same time, however, the Court noted that this
level of scrutiny was greater than the rational basis test in American constitutional law [at
286].

239Andrews, supra, note 195 at 156 per Wilson J..
24 Andrews, ibid. at 201 per Laforest J..

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identifiers and a state-supervised active contact tracing program where the
state assumes the obligation to identify all HIV-infected individuals and
conduct the contact tracing. Under the Ontario scheme, if patients refuse
to perform their own contact tracing, the Medical Officer of Health will
intervene. Apart from the reporting requirements governing HIV infection,
a physician may not reveal HIV-related information to anyone and doing
so would likely constitute professional misconduct. 241

In the second alternative, the results of HIV tests with identifiers are
not systematically reported to the government and the public health officer
does not assume the primary responsibility to identify seropositive indi-
viduals and perform contact tracing. Rather, the primary obligation to per-
form contact tracing is left with the physician, who is entitled to proceed
with contact tracing even without the patient’s consent if this patient rep-
resents a genuine risk to others.242 This second alternative addresses the
legitimate concerns about confidentiality by ensuring that the results of HIV
tests with identifiers are not systematically reported to the government, yet
at the same time third parties who are unknowingly at risk for HIV infection
will be informed. Given that this second option much less seriously en-
trenches on a s. 15 interest by more carefully ensuring the confidentiality
of HIV-related information, which in turn more effectively promotes the
public health objective of encouraging individuals to determine their HIV
antibody status, it merits the close attention of both the courts and the
public health officials who must balance the vital interests at stake.

This second option has been adopted by the New York State Legislature
which has recently enacted legislation that provides an important compre-

241See the discussion above in Part II.
242The second alternative outlined in this paper significantly differs from the private member’s
bill introduced last year by Dr Jim Henderson, Liberal M.P.P. for Humber. See supra, note 115
and accompanying text. Dr Henderson’s bill would amend the Ontario Health Promotion and
Protection Act and provide individuals with the option to request an anonymous HIV test.
His bill would also amend the Health Insurance Act, R.S.O. 1980, c. 197 and provide that
anonymous HIV tests would be an uninsured service under the Ontario Health Insurance Plan,
so that patients could not be traced through their OHIP billing records. His bill does not,
however, make any provision for physician-performed contact tracing, arguing that this would
constitute “an unconscionable violation of human rights to privacy, and a major departure
from the traditional confidentiality of the doctor-patient relationship. All those who argue that
this blatant breach of confidentiality is a necessary step to protect the public interest is (sic)
simply wrong.” (See Dr Henderson, Press Release, supra, note 115).

As discussed above in Part III, in some circumstances, contact tracing does serve a legitimate
public health objective. Dr Henderson’s argument in favour of anonymous testing is not
strengthened by his absolute opposition to contract tracing in all cases. Rather, as in the second
alternative outlined above, it is possible to secure access to anonymous testing where the results
are not reported to the government and at the same time permit disclosure of this information
in the exceptional circumstance of risk to a third party.

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ANONYMOUS HIV ANTIBODY TESTING

hensive public health model for the reduction of the spread of HIV infec-
tion. 243 The legislation has two primary objectives: first, to protect public
health by encouraging the expansion of confidential testing and second, to
limit the risk of discrimination against persons with AIDS and HIV infection
by restricting the disclosure of HIV-related information.244 Under the leg-
islation, HIV related tests may only be performed with the patient’s written,
informed consent, including a statement which explains the purpose and
meaning of the test, informs the patient that the test is voluntary and may
be done on an anonymous basis at the option of the patient, and explains
to the patient the circumstances under which disclosure of this information
may be required or permitted under the Act.245

Disclosure of HIV-related information is closely governed by the New
York legislation. 246 Disclosure is generally permitted to health facilities
where it is necessary to provide appropriate care, where it is mandated by
federal or state law, and to probation and correctional facilities. 247 Of greatest
interest are the provisions governing the disclosure of this information for
the purposes of contact tracing. The legislation provides that:

a physician may disclose confidential HIV related information … (1) to a con-
tact or to a public health officer for the purpose of making the disclosure to
said contact … [if] (2) the physician reasonably believes disclosure is medically
appropriate and there is a significant risk of infection to the contact; (3) the
physician has counseled the protected individual regarding the need to notify
the contact, and the physician reasonably believes the protected individual will
not inform the contact; and (4) the physician has informed the protected in-
dividual of his or her intent to make such disclosure to a contact and has given
the protected individual the opportunity to express a preference as to whether
disclosure should be made by the physician directly or to a public health officer
for the purpose of said disclosure. 248

243An Act to amend the Public Health Law, the Insurance Law and the Social Services Law
in relation to testing for HIV and to the confidentiality of information and records related to
HIV infection and AIDS, N.Y. C.L.S. Ch. 584 (1988) [hereinafter New York Act].

Similar contact tracing guidelines are in effect in Oregon and Maryland. See AIDS: A Public

Health Challenge, supra, note 66 at 4-17.

244New York Act, supra, note 243, 1, statement of legislative intent.
245Ibid., 2781.
246The New York legislation can be contrasted to the loosely drafted confidentiality provisions
in the Ontario Health Promotion and Protection Act, supra, note 10. See the discussion above
in Part II. The New York legislation governs all disclosure of HIV related information whereas
the Ontario legislation only governs the disclosure of information relating to mandatory reports
made under the Act. The New York legislation does not require the mandatory reporting of
HIV infection and no state records of infected individuals are maintained. The legislation
governs the release of all HIV related information obtained not only by the state, but by anyone,
thus providing effective and comprehensive confidentiality guarantees.

247New York Act, supra, note 243, 2782.
248Ibid., 2782 s.4. Unauthorized disclosure of confidential HIV related information is pun-

ishable with a fine of up to $5,000 ( 2783).

0

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Although physicians are given the option to disclose this information,
they are under no legal obligation to do so. The legislation protects physi-
cians from any criminal or civil liability for failure to disclose HIV-related
information to a contact; the physician is also protected from any liability
for disclosing this information if “carried out in good faith and without
malice”. 249

Both the New York legislation and the present Ontario contact tracing
program emphasize that the most effective and least invasive contact tracing
program is one conducted by the patient. In fact, over 90 per cent of HIV
contact tracing in Ontario is performed by the patient, or his or her physician
with the patient’s consent, without any assistance from the Medical Officer
of Health. 250 Physician-conducted contact tracing has already been proven
successful in Ontario.

In order to further encourage voluntary HIV contact tracing, it may be
desirable for public health officials to provide facilities to assist HIV-infected
persons in performing contact tracing. Both the states of Minnesota and
North Carolina have put into place HIV partner notification programs that
provide HIV-infected persons with counselling on how to notify their part-
ners.251 Clients are also given the option to request that the Health De-
partment notify their partners. Most importantly, these programs are
voluntary and operate anonymously; HIV reporting is not required under

2491bid., s.2783 s.3.
250See the discussion above in Part II.
251The State of Minnesota has initiated a “Partner Outreach Program” which offers sero-
positive individuals counselling sessions to teach them how and what to tell their partners.
Counseling is done on an anonymous basis. Although the program is still in a formative stage,
officials report that it appears to encourage participation and has generated a significant level
of satisfaction among participants. If they choose, clients may opt out of the “personal contact
plan” and request that the Health Department notify their partners. See AIDS:A Public Health
Challenge, supra, note 66 at 3-41. A similar program is also presently in effect in North Carolina.
HIV-infected persons are given the opportunity to participate in a specially designed “HIV
Partner Notification Program”. Clients have three options. They can: (1) meet with an HIV
counsellor who will notify and counsel partners confidentially; (2) complete and mail to the
AIDS Control Program a form identifying partners so that an HIV counsellor can notify
partners; and (3) can notify partners themselves. See E. Blackenship et al, “HIV Partner No-
tification within An Anonymous Testing System” (abstract) in AIDS: The Scientific and Social
Challenge, V International Conference on AIDS at 743. Most importantly, the infected person
may participate in the program anonymously. The results of the report submitted to the con-
ference found that the preliminary data on the program “suggests cooperation by HIV-infected
persons.” The study also found that the “program encourages participation of HIV-infected
persons by allowing them to maintain anonymity.” The study concluded “that despite certain
problems [such as the quality of information requested on the forms and the inability to notify
partners of anonymously tested HIV-infected persons who do not return for test results], HIV
partner notification can be effective in a system where HIV is not reportable and anonymity
is maintained.”[Ibid.]

1989]

ANONYMOUS HIV ANTIBODY TESTING

either program. Programs like these illustrate that HIV contact tracing can
be responsibly performed within a system that does not require mandatory
reporting.

Obviously, the most difficult situation arises when a patient who pre-
sents a risk of contagion to unsuspecting third parties refuses to perform
contact tracing and refuses to consent to contact tracing by his or her phy-
sician. Given that there is a compelling need to inform these third parties
who are at a high risk of HIV infection, disclosure without the patient’s
consent in these exceptional circumstances is warranted. However, the cen-
tral issue is whether all cases of HIV infection must be reported to the
government in order to ensure that contact tracing will be performed in the
relatively small number of cases where uncooperative patients continue to
present a risk of infection and refuse to inform the parties at risk. Mandatory
government reporting, because it raises legitimate fears of unwarranted or
inadvertent disclosure, thereby discouraging HIV testing, carries a very high
price. Instead, the primary obligation to perform contact tracing in these
circumstances should rest with the physician, not the Medical Officer of
Health. 252 This alternative effectively minimizes the risk of unwarranted
disclosure of HIV-related information inherent in any mandatory reporting
program, but at the same time ensures that third party contacts who are at
risk will be informed.

Of coufse, the physician should always have the option of requesting
the public health officer to perform the necessary contact tracing in the event
the physician does not wish to perform the contact tracing personally. The
New York legislation provides for such an alternative by permitting phy-
sicians to inform a public health officer of their patient’s HIV status for the
purposes of contact tracing.253 The identity of the index person might also
be easier to protect when the tracing is performed by a public health officer
rather than a private physician. 254

252In the case of anonymous testing, such as that presently performed by the Hassle Free
Clinic in Toronto (discussed above in Part II), it is likely that the physician responsible for the
HIV test would not know the patient and would be unable to judge whether this patient presents
a risk of infection to any third party. Physicians working at a walk-in and usually anonymous
clinic such as the Hassle Free might be unlikely to develop a personal relationship with their
patients which would enable them to assess this risk.

As a result, it is unlikely that contact tracing would be performed in this circumstance.
However, the only alternative, the mandatory reporting of the name of the patient to the
government, would subvert the entire basis for the anonymous setting of the clinic. Patients
would be deterred from using the clinic, they would be unable to determine their HIV status,
and a critical opportunity to counsel these individuals on how to prevent the risk of trans-
mission would be lost.

2 53New York Act, supra, note 243, 2782 s.4(a)(1).
2S4Ibid., 2782 s.4(a)(4) requires that the patient must be given the option of requesting that

contact tracing be performed by the public health officer rather than the physician.

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There is no reason to believe that physicians, if given the option to do
so, will not responsibly exercise an obligation to initiate contact tracing to
protect those who are unknowingly at risk if their patient refuses to do so.
This responsibility is consistent with the many professional and legal ob-
ligations placed on physicians to disclose information in order to prevent
imminent harm to others, such as the obligation on physicians to report to
the Registrar of Motor Vehicles the names of patients who have medical
conditions that may make it dangerous for them to drive.255 Physicians
have also expressed their willingness to assume an obligation to perform
HIV contact tracing: notwithstanding the fact that at present Ontario phy-
sicians are not permitted to disclose HIV-related information to anyone
other than the Medical Officer of Health, the Canadian Medical Association
recently voted that physicians should, in exceptional circumstances of risk
to third parties, be allowed to violate patient confidentiality and inform the
sexual partners of seropositive patients. 256

It is likely unnecessary that physicians should be under a legal obligation
to perform contact tracing, as it is reasonable to assume that they would
fulfill their professional responsibility to inform parties at risk. The New
York legislation thus immunizes physicians from any liability for failure to
disclose HIV-related information, thereby ensuring that physicians will not
be pressured into unwarranted disclosure by fears of potential liability.257

However, in order to ensure physician compliance, it is possible that
they could be subject to some form of civil or statutory liability for failure
to inform parties at risk. For example, in the United States, a health care
professional’s civil liability for “failure to warn” third parties at risk was
first developed in Tarasoff v. Regents of the University of California, a de-
cision of the California Supreme Court which found a psychologist liable
for failure to warn a third party of his patient’s intention to murder her.258
As a result of this decision, under certain circumstances health care profes-
sionals in the United States may be liable for failure to disclose confidential
patient information to those who are in foreseeable danger of serious harm

215 Highway Traffic Act, supra, note 69. It might also be useful to provide some compensation
for physicians who engage in contact tracing; the government could consider contact tracing
as a billable service under the Ontario Health Insurance Plan.

256See AIDS Policy and Law, vol.2, No. 17 (9 September 1987) at 4.
257New York Act, supra, note 243, 2783 s.3(a). But see Note, “Confidentiality, Warning,
and AIDS: A Proposal to Protect Patients, Third Parties, and Physicians” (1988) 4 Touro L.
Rev. 301 where the author argues that the New York legislation “fails to establish any sincere
notification program” because the legislation relieves the physician of any legal duty to warn
third parties [at 323-6].

25817 Cal. 3d 425, 551 P.2d 410 (1976).

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ANONYMOUS HIV ANTIBODY TESTING

from their patients. It has been suggested that physicians may thus be under
a “duty to warn” contacts of seropositive patients. 259

At present, there is no Canadian equivalent to the physician’s “duty to
warn” as it has developed in the United States. Although the physician is
required to disclose HIV-related information to the Medical Officer of
Health, disclosure of confidential medical information to any other party,
even those at risk for HIV infection, would likely constitute professional
misconduct.2 60 Of course, the great advantage of this scheme, at least from
the physician’s point of view, is that his or her legal responsibility is entirely
unambiguous. Once it is recognized that physicians should have the primary
obligation to initiate contact tracing, they could be faced with uncertainties
about their duties to their patient and to third parties, when their patient
refuses to provide reasonable assurances that relevant third parties will be
informed. It would be desirable to provide physicians with some specific
guidance about when disclosure is necessary and, of course, it would be
essential that they be protected from liability for disclosing this informa-
tion. 261 Although this point is debatable, it may even be necessary to impose
liability on physicians for failure to do so.

Rather than a scheme of mandatory reporting and state-supervised con-
tact tracing, leaving the primary responsibility to perform contact tracing
with the physician provides an equally effective and far less intrusive means
to ensure that contact tracing, where appropriate, is performed. In short,
the Ontario law on this point, which forbids physician disclosure, is entirely
at odds with a responsible public health response to HIV contact tracing.

259See L. Gostin and W. Curran, “AIDS Screening, Confidentiality, and the Duty to Warn”
(1987) 77 Am. J. Public Health 361 at 364; A. Peter and H. Sanchez, “The Therapist’s Duty
to Disclose Communicable Diseases” (1987) 14 West. State Univ. L. Rev. 465 at 475; and H.
Rosencranz & W. Lavey, “Treating Patients with Communicable Diseases: Limiting Liability
for Physicians and Safeguarding the Public Health” (1987) 32 St. Louis Univ. L. Rev. 75 at
88.

26See the discussion above in Part II, and G. Sharpe, The Law and Medicine in Canada,
supra, note 69 at 181-2. See also, D.G. Casswell, “Disclosure by a Physician of AIDS-related
Patient Information: An Ethical and Legal Dilemna”, supra, note 65 at 246 where the author
concludes that “what little relevant case authority there is provides no clear guidance whether
a physician owes a duty to warn a partner who may be at risk of HIV infection by his or her
patient.”
261Note, “Contact Tracing for HIV Infection: A Plea for Privacy” (1988) 20 Colum. Hu. Rts.
L. Rev. 157. The author argues that the legislature should enact a statutory regime to govern
the confidentiality of HIV-related information, given that the traditional legislative scheme
governing the control of infectious diseases (involving mandatory reporting as its central fea-
ture) is not an effective way to address the problem of HIV transmission. After discussing
confidentiality legislation for HIV-related information, the author concludes that it may also
be necessary to impose some legal obligation upon physicians in order to ensure that they
perform contact tracing where appropriate.

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The central question thus posed by the two alternative contact tracing
programs outlined above is whether the primary responsibility to initiate
contact tracing should rest with the physician or with the Medical Officer
of Health, and this is precisely the issue raised in the recent prosecution
mentioned above of a Toronto physician who has refused to report the name
of one of his patients who is seropositive. Although the facts of this particular
case have not yet been revealed, it is possible that the physician in question
has counselled his patient on the risk of HIV transmission, and the patient
has taken all appropriate precautions to avoid any risk of infection. It is
also possible that given the past sexual history between the patient and his
wife, the physician is confident that the patients wife has not been exposed
to HIV (for example, the couple may have used condoms or may not have
had sexual relations since the husband’s infection). If the physician is con-
fident that disclosure is not medically appropriate because there is not a
significant risk of infection to a contact, he would be justified in deciding
not to perform contact tracing. No doubt, the physician is acutely aware of
the potentially devastating effect that revealing this information could have
on his patient’s marriage, as well as the potential HIV-related discrimination
that could result if this information should reach employers, insurers or
landlords. 262 Unless circumstances compel disclosure, the patient should be
entitled to keep his HIV status confidential.

The Ministry, presumably without any knowledge of the facts of the
case, refuses to accept the physician’s judgment that contact tracing is in-
appropriate in this case. The Ministry is thus insisting on informing the
wife of her husband’s HIV status and is seeking to enforce compliance with
the Health Promotion and Protection Act which requires that physicians
report the names of all their HIV-infected patients to the government. It is
likely that the Ministry is aggressively pursuing contact tracing because,
unlike the physician in question, it believes that the patient’s wife is at a
significant risk of acquiring or transmitting HIV. For example, should she
decide to become pregnant or engage in sexual intercourse with another
party, if she is unaware that she may be HIV-infected, she could inadver-
tantly transmit HIV to her child or sex partner. As discussed above, if there

2620ne example of AIDS-related discrimination that may be of particular concern to the
patient in this case is the possibility that in the event of a divorce, his wife could argue that
he should be denied access to his children because he is seropositive. This issue has recently
been raised in Re B (1 March 1988) York S.C. 106402-84 (Ont. H.C.) (see T. Ducharme,
“Preparing for a Legal Epidemic”, supra, note 6 at 497). In another recent case in Quebec, a
mother of two children unsuccessfully argued before the Superior Court that her former husband
should be denied any access to their children because he is seropositive. The Court rejected
the argument, noting that there was no risk of HIV transmission in normal family contacts.
See Droit de lafamille-663 (18 April 1989), Montr6al 500-12-165160-874, J.E. 89-947 (C.S.).

1989]

ANONYMOUS HIV ANTIBODY TESTING

is a significant risk of HIV transmission, contact tracing may be appropriate,
notwithstanding the considerable cost this may impose on the husband.

The critical issue, of course, is who should decide whether contact
tracing is appropriate. The first option, a mandatory reporting scheme, en-
sures that this decision will rest with the Medical Officer of Health. The
second option, a physician-conducted contact tracing scheme as enacted in
New York State, places the responsibility on the physician. Because of le-
gitimate fears of unwarranted disclosure, the first option seriously impairs
a s. 15 interest and critically impedes the, early detection of HIV infection.
The second option presents a much smaller threat of unwarranted disclo-
sure, but at the same time ensures that when the circumstances compel
disclosure, contact tracing will be performed.

Finally, in order to ensure that contact tracing will be performed, rather
than imposing a scheme of mandatory reporting and state-supervised con-
tact tracing, if necessary it would be preferable to place some tortious or
statutory obligation upon physicians requiring them to perform contact trac-
ing where warranted. In short, this secofid option-which focusses primarily
on facilitating voluntary contact tracing, and in the relatively rare circum-
stances where a patient refuses to consent to contact tracing, permits (or
may even require) physician disclosure-illustrates that contact tracing can
be effectively accomplished in a system in which HIV infection is not re-
ported to public health authorities. The unique conditions of the HIV ep-
idemic make it essential that we devise and adopt a public health program
that provides maximum guarantees of confidentiality and, at the same time,
permits disclosure of HIV-related information where circumstances warrant.
The physician-conducted contact tracing option outlined above much more
effectively addresses these two vital concerns.

Once it has been established that a physician-conducted contact tracing
scheme, such as that enacted in New York State, much less seriously impairs
a s. 15 interest and is a more responsible and effective public health response
to the AIDS epidemic, it cannot be concluded that the Ontario program
can withstand the proportionality test under s. 1.

E. Conclusion

The deleterious effect of an HIV mandatory reporting and contact trac-
ing scheme has been described in detail. Seropositive individuals, because
they reasonably constitute a class of the physically disabled or a discrete
and insular minority under s. 15 of the Charter, are entitled to challenge
legislation that prejudicially affects them. There can be no question that the
mandatory reporting of HIV infection with identifiers and state-supervised
contact tracing, because it presents the risk of unwarranted disclosure of

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[Vol. 34

HIV-related information which can result in highly damaging HIV-related
discrimination, prejudicially affects the interests of seropositive individuals,
thereby shifting the burden to the state to establish that this program is
demonstrably justified.

The government cannot successfully establish that its legislative pro-
gram, which has the effect of discouraging voluntary HIV testing, a critical
aspect of disease control, furthers the legitimate public health objective of
preventing the spread of HIV. Nor can the government successfully establish
that a state-supervised contact tracing program is an acceptable violation
of the interests of seropositive individuals, given that a much less invasive
alternative is available: physician-conducted contact tracing. The mandatory
reporting requirements of the Ontario Health Protection and Promotion Act
cannot therefore reasonably withstand a Charter challenge.

A highly aggressive public health response to the AIDS crisis is not
necessarily one that will best protect public health, and, in fact, it could
possibly be one of the least effective responses to this complex and acute
social crisis. Yet invasive measures have a particular appeal when faced with
a disturbing, mysterious, and devastating disease which our ancient fears
of contagion and death have surrounded with myth and metaphor. Once
complicated by its route of sexual transmission, which to date has largely
been homosexual, and its intersection with class, now that the disease is
ravaging the underclass of the IV drug user, it becomes more and more
difficult to sketch a responsible public health response to so complex a social
phenomenon. Nonetheless, the Government of Ontario has not yet struck
an acceptable balance between the interests of people with HIV disease and
the imperatives of disease control. Nothing less than the public health of
its citizens is at stake.