Ontario Superior Court Rules That While Policy Preventing Men Who Have Sex Even Once With Other Men Antiquated Canadian Blood Services Can Continue Enforcing Donation Ban

Kyle Freeman, the Toronto, Ontario resident who concealed his sexual history on a blood donor questionnaire and was subsequently sued for negligence by the Canadian Blood Services, has lost in provincial Superior Court. Justice Catherine Aitken ruled Thursday that Canadian Blood Services ban on donation of blood by men who have had sex with another man at any time since 1977 is not discriminatory based on sexual orientation. “It is based on health and safety considerations; namely, the prevalence of HIV/AIDS and other blood-borne, sexually transmitted pathogens in the (men who have sex with men) populations, and the corresponding risk this creates for the safety of the blood supply system.” Freeman, who is gay, and had syphilis at the time of at least one donation (he donated blood several times during the years 1990 and 2002), said he lied because the policy preventing him from donating was a violation of his rights, and had employed the Charter of Rights and Freedoms in his defence; however Justice Aitken ruled that as the CBS is not a government entity, it is not covered by the Charter. Freeman, whose counterclaim was dismissed, is to be held liable for $10,000 in damages. The ruling has disappointed many, mostly because during trial the judge repeatedly acknowledged that there no longer exists any evidence to justify the current policy that uses a deferral period of men who have had sex with men once since 1977 – a policy created at the height of HIV hysteria, when little was known about the disease, must less about testing protocol, yet the court refused to order CBS to change its current protocol.