The hands of blood donors photographed at the Toronto EMS and Toronto Fire Headquarters on Dufferin St.Fernando Morales/The Globe and Mail
A court ruling limiting the right of gays to donate blood has raised fears that governments can "contract out" of the Charter of Rights and Freedoms simply by setting up agencies and corporations at arm's length.
In a 188-page ruling on Thursday, Madam Justice Catherine Aitkin ordered a Toronto man, Kyle Freeman, to pay $10,000 to Canadian Blood Services for lying about his sexual history on a questionnaire and endangering blood recipients.
Judge Aitken ruled that Mr. Freeman cannot invoke the Charter's equality provision to challenge the constitutionality of the questionnaire. She said that the agency's bureaucratic structure and the fact that it does not take day-to-day direction from government means that it is too distant from government for the Charter to apply.
Bruce Ryder, a law professor at York University's Osgoode Hall Law School, said that the decision "is very dangerous because it makes it so easy for governments to avoid their Charter responsibilities. All they have to do is create an arms-length body and refrain from dictating policy. Presto! Charter-free zone."
Prof. Ryder said that Judge Aitken was wrong to focus on the fact that CBS develops its own screening procedures. "It's not relevant whether the government is dictating the screening policy," he said. "What is relevant is that we have a body that is implementing a government program."
R. Douglas Elliott, a Toronto equality rights expert who represented the Canadian AIDS Society in the case, said that the decision creates, "a very, very dangerous precedent … The government doesn't have day-to-day control over the police or Crown attorneys in the courthouses, either. Does that mean they are not government actors?"
He predicted that governments will be tempted to contract out prison or customs services to shield them from costly and inconvenient Charter litigation.
"Set up the Correctional Service Corporation of Canada, have them run the prisons at arm's length from government, and - Bob's your uncle - prisoners have no Charter rights," Mr. Elliott said.
The ruling infuriated gay rights activists who have fought hard for the elimination of a screening question that obliges gays to specify whether they have engaged in sexual activity since 1977, an attempt to ease concerns about contamination with HIV or other pathogens.
Judge Aitken conceded that the question invokes painful stereotypes for a group that has suffered from gross discrimination, but she said that its plight "is leagues apart" from that of hemophiliacs or others who need blood transfusions to survive. "They also have a history of the system failing them," she said. "And if the system fails them again, their lives may be on the line."
The question was crafted out of a concern for public safety, not an outdated, scientifically unproven stereotype, the judge said. She noted that other high risk groups are also identified in the questionnaire, such as those born in certain African countries.
"Put simply, blood donation is a gift," Judge Aitkin said. "A gift is freely offered, but must also be freely received or freely declined. Canadian law has never recognized a duty or requirement to accept a gift."
But Mr. Elliott said the issue has erupted into a rallying point on university campuses, where even straight students are boycotting blood donor drives to protest against the blatantly discriminatory question. A 10 per cent drop in blood donations at universities over the past year signals that the next generation of blood donors is in peril, he said.
Mr. Elliott also said that gay activists and organizations will not "sell" their community on the merits of donating blood until the question is removed. "In order to get someone's co-operation, it doesn't usually help to antagonize them," he said. "Pursuing this litigation has been the nadir of the CBS's bad judgment.
"What is really going on is that gay men are donating blood, anyway," he said. "CBS is not doing anything aggressive to investigate this because they know that the question is stupid. They are essentially encouraging people to ignore a question that they don't respect and to do their own self-assessment. That is a very dangerous proposition."
The gay coalition conceded that CBS can legitimately screen potential donors for gay sexual activity, but that the deferral period should be only about one to five years.