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Gay & student groups resign from blood group, citing Freeman case

Gay man who donated blood was 'negligent,' court finds

Kyle Freeman Credit: Neil McKinnon photo

After seven years of delays, 35 days in court and eight months waiting for a decision, the proceedings in the civil case against a Toronto gay man who dodged questions on a Canadian Blood Services (CBS) questionnaire in order to give blood has come to a close today. Kyle Freeman was negligent when he lied on the CBS screening question, “Have you had sex with a man, even one time, since 1977?” Ontario Superior Court Justice C Aitken ruled.

The decision has prompted Egale Canada, the Canadian AIDS Society (CAS) and the Canadian Federation of Students (CFS) to resign from a queer consultation group organized by CBS.

The court awarded $10,000 to the not-for-profit blood bank, but in a statement released today CBS announced it won’t pursue Freeman for the money.

Freeman has declined to comment on the story.

“My legal team have instructed me to make no comments to the media, regardless of the outcome,” says Freeman.

Freeman has hinted in the past, however, that the possibility of an appeal exists.

During the lengthy trial, which began in September 2009 and ended last January, the court heard legal arguments from seven groups: CBS, the Government of Canada, counsel for Freeman, the Canadian Hemophilia Society, Egale (a national organization committed to advancing equality and justice for lesbian, gay, bisexual and trans-identified people) and the CAS.

Lawyer Doug Elliott represented the CAS. He says the judge put forward that there is no scientific evidence to justify excluding men who have had sex with men since 1977.

“It is true HIV is higher among gay men. That’s why a question [asking if you are a man who has had sex with a man] is reasonable. The judge said this question with ‘since 1977’ is unreasonable. That’s what we’ve been saying for a long time. If someone got infected from having gay sex 33 years ago, they’re going to be dead or they’re going to have full-blown AIDS. And that would show up on HIV tests. So asking it that way is too broad,” says Elliott.

The court deemed CBS a non-government organization, similar to a drug company. That means they are only accountable to management. Elliott says this is why the Charter does not apply and Freeman’s case was dismissed. 

“Most Canadians would find it startling CBS is treated as a drug manufacturer like Bayer. I think Canadians support CBS because they think it’s a government program supporting Canadians. However, in fact, the judge is just wrong. The provincial government owns CBS: they created it, they elect directors, they fund it and they regulate it. My question is, if the government doesn’t control them, who does?” says Elliott.

Elliott says the judgment will allow future governments to contract organizations out of the Charter.

“All the government has to do now is set up a corporation, give money to that corporation, and they don’t have to worry about the Charter of Rights. CBS is saying this isn’t discrimination based on sexual orientation. Although it affects gay men, they say they’re doing it because of safety. That is a dangerous precedent because it means you can excuse discrimination as long as you have a good motivation. I can tell you, in every gay rights case I’ve done, the defendant has always claimed they have a good motivation. If this reasoning behind it had been applied in the other cases, we would’ve lost every case,” says Elliott.

This morning, Egale, the CAS and the CFS all resigned from CBS’s lesbian, gay, bi and trans consultation group “because we believe they are not sincere about considering change,” says Elliott.

“We thought the consultation group would be to come up with a question. But what we got was window-dressing, CBS’s appearance of being nice to the gay community when they have no intention of listening to us. It’s a charade,” says Elliott.

“We will continue reaching out to these groups. CBS remains interested in active engagement,” CBS CEO Dr Graham Sher said in a press conference today at CBS headquarters in Ottawa, responding to the stepping down of gay and student groups from CBS’s consultation groups.

When asked about the policy banning the MSM population dating back to 1977, he said it was “very clear the judge was not required to comment.”

“Let’s just say she put an opinion and it may not be reasonable. It is important to reflect the evidence provided. There is no evidence pointing to other than the one we have. It is also true she said there is no clear evidence a policy less than 10 years wouldn’t negatively impact the system,” says Sher.

When asked if the MSM question will deter more people from lying on the questionnaire, particularly with the publicity the issue has attracted, CBS lawyer Sally Gomery said, “it is very important donors tell the truth.”

“There is very little data to suggest donors lie. They generally tell the truth,” says Gomery.

Gomery says she does not know if an appeal will happen, as it will be up to other parties to decide.

Freeman was 29 when he found out CBS was suing him. When his case finally had its turn in Ontario Superior Court this year, he was 37. He is now 38. If his case goes to the Supreme Court, he could be in his mid-40s when a final decision is reached. He says the thought of spending a large portion of his life in court doesn’t faze him.

“I don’t see it taking away my life. This case empowers me. There are a lot of people who need healthy blood. CBS claims publicly they are short and how blood is in you to give. They’re in need of blood products to help people who are not well, and they’re excluding the MSM population. You’re counting on people being honest. I couldn’t tell you the scientific data of married men who had sex with men. How many people would be excluded if they answered properly? CBS is reducing people by their sexual practices rather than looking at what they do,” says Freeman.

According to documents obtained by Xtra, the 187-page judgment fell into five issues and reasons:

“Issue one: Did Mr Freeman commit negligent misrepresentation? Yes.

Issue two: Is the Charter a shield to CBS’s negligent misrepresentation claim? No.

Issue three: Does the Charter apply to CBS in regard to its donor deferral policies? No. CBS is not a government entity because it is not governmental in nature and is not under government control. As well, CBS is not a government actor because, in implementing its MSM donor deferral policy, CBS is not implementing a specific policy or objective. For this reason, Mr Freeman’s counterclaim fails under s 15(1) of the Charter.

Issue four: Does Mr Freeman have a Charter claim against Canada? No. He did not prove any claim independent of his claim against CBS.

Issue five: If the Charter applies to CBS, are Mr Freeman’s Charter rights engaged when he is denied the opportunity of donating blood? No. The law does not give anyone in Canada the right to donate blood. This is a second reason why Mr Freeman’s counterclaim fails.”