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Judge’s HIV comments spark call for education

'HIV prejudice still exists in the court system'

A Barrie judge who refused to let an HIV-positive witness testify in his courtroom has led to a call for judicial education on AIDS and queer issues.

In November Ontario Court of Justice (OCJ) judge Jon-Jo Douglas told a sexual assault trial that an HIV-positive witness with Hepatitis C was a danger to the court.

“The HIV virus will live in a dried state for year after year after year and only needs moisture to reactivate itself,” Douglas told the crown attorney according to a trial transcript. “I mean, he speaks within two feet of me with two serious infectious diseases. Either you mask your witness and/or move us to another courtroom or we do not proceed.”

Court staff also wore rubber gloves to place documents touched by the witness in plastic bags.

The crown attorney asked the Ontario Superior Court to remove Douglas, but Justice Margaret Eberhard refused, saying Douglas has jurisdiction over courtroom safety.

The trial was adjourned over Douglas’s concerns. It was scheduled to resume on Thu, Feb 14 with a new judge.

The Canadian HIV/AIDS Legal Network (CHALN) and the HIV and AIDS Legal Clinic have filed complaints with the Ontario Judicial Council over both Douglas and Eberhard.

“We suggest that it would be appropriate to examine the extent to which judges receive information about HIV/AIDS and related legal and human rights questions, in the course of judicial education,” states the complaint. “We would be happy to discuss further with you, or with the Education Secretariat of the Ontario Court of Justice and similar bodies such as the National Judicial Institute, how to overcome HIV-related prejudice in the courtrooms of Ontario and Canada.”

Leon Mar, CHALN’s director of communications, says the extent of the judge’s ignorance is a shocker.

“This is a wakeup call,” he says. “This is a clear signal that HIV prejudice still exists in the court system.”

Canadian courts are responsible for establishing their own education programs, most of which are optional. The result, say critics, is that judges decide how much they need to learn.

“You might not have the training because you might not know enough to know that you need the training,” says Hilary Cook, the chair of the legal issues committee at queer lobby group Egale Canada.

Even when judges do attend sessions their willingness to learn might be questionable.

“I think it falls into the category of you can lead a horse to water but you can’t make it drink,” says University of Toronto law professor Audrey Macklin, who has conducted judicial training sessions on immigration and refugee issues. “They regard any attempt to teach them as an attempt to infringe on their independence.”

A spokesperson for the OCJ referred questions about the Education Secretariat to the court’s online annual report. That report claims the Secretariat will “support and encourage programs which maintain and enhance social, ethical and cultural sensitivity,” but offers no specifics.

The National Judicial Institute (NJI) and the OCJ jointly fund a position of education director for the court, but the NJI would provide little information on programs around HIV or queer issues.

Linda Russell, a spokesperson for the NJI, says the organization offers education in “social context,” but wouldn’t specify whether that included people with HIV/AIDS or queers.

“I’m sure you can understand that social context involves a great many groups,” she says. “It would involve my doing a great deal of research to find out.”