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Freeman might not pursue appeal in gay blood case

Papers are filed, but 2005 Quebec challenge might have a better chance

Kyle Freeman Credit: Neil McKinnon photo

After losing a lengthy first-round battle in Ontario Superior Court to Canadian Blood Services (CBS) last month, gay blood-ban activist Kyle Freeman has filed the paperwork to begin an appeal.

But Freeman says he filed his appeal to secure the right to go forward, because the court gave him a 30-day deadline to do so. Freeman will only go forward if he has the ability to secure funding. He does not have enough money to fight the blood bank on his own.

“The gist of it is, we’re filing the appeal. We’re going to ask for an extension. We have to ask for funds. And that takes a while,” says Freeman.

When the case began, Freeman was able to seek funding from the now-defunct Canadian Court Challenges Program (CCCP.) That program helps people who have an important court challenge, like taking on our deep-pocketed blood bank for discrimination, and would not be able to afford to do so without outside financial help.

The program was scrapped by Conservative cabinet minister John Baird in 2006, but in the event of an appeal additional funding can be provided in the Freeman case.

“Even with the kindness of lawyers agreeing to work on a pro-bono basis, a case such as this one, without CCCP’s help, would translate into a miscarriage of justice. I am personally relieved that I have been grandfathered and that funding may be approved should the case continue,” said Freeman, via email while vacationing in Israel.

Lawyer Doug Elliott represented the Canadian AIDS Society’s interest in the Freeman case. Whether or not the case proceeds depends on a number of factors, according to Elliott.

First, Freeman needs new counsel because his previous lawyer, Patricia LeFebour, is no longer practising law. Next, he’ll want to get a sense from the gay community whether he should go forward or drop it and instead let Adrian Lomaga’s similar case against Héma-Québec go forward next April. But, lastly, Freeman is considering the financial implications: he does not want to lose his shirt.

“Kyle’s not a rich guy. He didn’t pick this fight. CBS launched the lawsuit. If he’s carrying it on, he’d be doing it for community and not personal gain. To date, he’s lost the case but he hasn’t lost anything financially,” Elliott says. “I’d understand if he didn’t want to go any further. He’s going to file an appeal to protect his rights to pursue an appeal.”

“People should not take it as a firm commitment,” he adds.

Elliott says Superior Court Justice Catherine Aitken’s judgment leaves a few unanswered questions. First, she said after a 41-day trial that CBS had failed to convince her that its policy of refusing blood from gay men is justified.

But the judgment said if Freeman had a problem with CBS’s MSM blood deferral, he should have launched action without lying to donate blood. In 2005, Adrian Lomaga did just that against Héma-Québec as a law student at McGill.

Elliott says from that perspective, Lomaga’s case is much more problem-free.

“[Lomaga] didn’t answer any of the questions incorrectly. He just launched legal action. That makes his case as a Charter challenge much more clear-cut than Kyle’s. The issue does not get clouded by issues of syphilis and lying,” says Elliott.

Even if he won the case and gays were able to donate blood, Freeman was previously excluded for life after contracting a non-contagious late latent strain of syphilis. Elliott says science has found the syphilis virus is nullified in the blood when it is refrigerated. But this does not matter: CBS deters people who have contracted it because they are statistically assumed to be at risk for other blood-borne pathogens.

“His syphilis never hurt anyone. And it wouldn’t have, either. CBS says it’s an indication you have multiple sexual partners. A lot of gay men get syphilis from unprotected oral sex. You can get syphilis from that, but it’s almost impossible to get HIV that way,” says Elliott.

In 2002, CBS launched a $10,000 negligence lawsuit against Freeman after he sent it an anonymous email saying, “I am a gay man and have been involved in a long-term committed relationship. Both my partner and myself [have] been tested for the HIV virus and are both negative and intend to stay that way. We are both very honest people and are both blood donors.”

The blood bank tracked his IP address and served him with a lawsuit.

In a previous interview with Xtra, Freeman said he lied about the screening question “Have you have had sex with a man, even once, since 1977” because “my stomach would turn. I’d be embarrassed, ashamed. I felt like a criminal. It felt like I was doing something bad, even though I was trying to help people. I knew my blood was pure, but I just felt guilty.”

CBS spokesperson Ron Vezina acknowledges Freeman has exercised his right to appeal, but he adds that “Canadian Blood Services believes Justice Aitken carefully considered all perspectives and evidence before making her decision.”

In Freeman’s case against CBS, Egale Canada had intervener status. Lomaga says he does not have an intervener at this time against Héma-Québec (HQ), CBS’s Québec equivalent.

“I’m not certain if that will change or not,” says Lomaga.

When asked if he could use the in-depth scientific information that came about during the Freeman case, he says it cannot all be transported into his case; however, Dr Mark Wainberg, a renowned expert AIDS researcher with McGill University and also an expert witness in the Freeman vs CBS case, will also be his witness.

In 2005, Lomaga was a third-year law student at McGill University. He was reluctantly coming out of the closet and did not feel good about himself. When he went to give blood at HQ, he did not know there was a MSM blood deferral and he says it made him feel like a second-class citizen.

Instead of lying on the questionnaire, Lomaga launched a small claims court suit for $1,500 against the Québec blood bank. The case was transferred to the provincial Superior Court when HQ added the Canadian Attorney-General to the suit, and the amount was changed to $10,000.

“I didn’t choose to add the Attorney-General. HQ did,” says Lomaga.

Freeman lost a Charter challenge because Aitken ruled CBS was not a government entity and therefore the Charter did not apply. Lomaga, now a Toronto lawyer, says there is a difference between Québec and Canadian law: the Québec Charter does include the relationship between private corporations and the general public.

Lomaga says he was disappointed with the Freeman case outcome.

“[Justice Aitken] thought the right to donate blood and equality did not overcome the right to blood safety. But the issue is really about risks to be treated fairly. As for blood standards, CBS expects perfection from the gay population. But from heterosexuals, the standard is much lower,” says Lomaga.

Lomaga points to the current status quo, when if a heterosexual person had risky sex with someone they were unsure about is banned for six months from donating blood. The reason for this is because the rule is to deter blood donations from people who may have Hep C, HIV and syphilis — the same reason for doling out a lifetime ban to gays.

“HQ is screening out potential donors and there is no science involved. Their policy is based on fear,” says Lomaga.

Lomaga says he recognizes the financial risks Freeman had in taking on two giants with almost unlimited resources. He declined to answer whether this fazes him or not, but he says he plans to go ahead with a two-week trial Apr 2011, with or without an intervener.

Helen Kennedy, executive director of Egale, could not be reached for comment.