Blood Donor Regulations and Men who have Sex with Men: Is this Kind of Discrimination Necessary?

Posted By Lauren Hanon

As anyone who has donated blood knows, Canadian Blood Services (CBS) and Héma-Québec ask a lot of questions to help determine a potential donor’s eligibility for blood donations. People can be exposed to all kinds of risks related to blood safety, and these questions are supposed to weed out risk factors as much as possible.

Question # 18 asks male donors “Have you had sex with a man, even one time, since 1977?” According to the Canadian Hemophilia Society, “question #18 was introduced by the Canadian Red Cross in the 1980s to protect the recipients of blood and blood products against infection with HIV.” Until 2013, if you responded yes to this question, you were indefinitely banned from donating blood in Canada. In 2013, CBS and Héma-Québec reduced that ban to 5 years. As a result, all men who have sex with men are currently banned from donating blood for a period of 5 years following their last sexual contact with another man. This policy warrants further discussion because it involves important social questions coming head-to-head with concerns of blood supply safety.

Justifications for the discrimination

The concern for safety and trust in the blood supply is the most important guiding principle for donor regulation policy. There is a lot at stake for recipients of blood donations. The Canadian Hemophilia Society has been particularly vocal about the importance of safety given that the populations with which they are concerned are regular blood donation recipients. In the early 1980s, before the cause of AIDS was identified, the Canadian Red Cross Society (the predecessor of CBS and Héma-Québec) banned blood donations from MSM, because statistical data showed that MSM were a much higher-risk group for being affected by HIV/AIDS. During this time, many transfused patients became infected, “with the hemophilia population being particularly devastated by the HIV epidemic.”

Inevitably, all screening of potential blood donors is discriminatory in one way or another, and this discrimination is justified because of safety concerns for blood supplies. But the real question here is whether the current blanket discrimination against men who have sex with men (MSM) can actually be justified in this way.

Charter challenges

As medical science and technology have progressed and improved in the last 30 years, and as blood supplies in Canada have been critically low, donor regulation policies have seen quite a bit of change. LGBTTQ groups have expressed strong views in favor of removing the 5-year deferral period (or significantly reducing it further) because the deferral period unfairly lumps people who practice safe sex and who know the sexual history of their partners with people who practice the high-risk sexual behavior that Question # 18 supposedly aims to filter out.

This argument was advanced in Canadian Blood Services v Freeman (2010). Freeman had donated blood to Canadian Blood Services (CBS) on multiple occasions from 1990 to 2002, and each time he misrepresented his sexual history on the screening questionnaire, claiming that he had not had sex with another man since 1977, when in fact he had. CBS sued for negligent misrepresentation. Freeman countersued, arguing that the screening question was discriminatory on the basis of sexual orientation, and that it therefore infringed on his s. 15 Charter rights. The court ultimately awarded damages to CBS and dismissed Freeman’s counterclaim. The court’s reasoning was that CBS is not a governmental entity, not under government control, and therefore not subject to the Charter. Further, even if CBS were a governmental entity, donating blood is not a right protected under the Charter, and Freeman could not demonstrate a benefit or a burden that is provided or imposed by the law.

Disproportionate concern surrounding MSM and risk to the blood supply?

In 2012, CBS held a series of consultations framed by the CBS Report on Donor Selection Criteria Relating to Men Who Have Sex With Men. The consultations included speakers from various fields, including public health, ethics, and social justice advocacy groups. Stakeholder groups were also involved in discussions about how policy changes in blood donation regulation could take into account the larger societal picture of impacts on blood donation recipients and blood donors.

A central concern that came out of the Report and the consultations was the issue of emerging pathogens. An emerging pathogen is “an infectious agent whose incidence has increased or threatens to increase in the near future…they may also be new, previously unknown agents.” Identifying emerging pathogens in blood donations differs from identifying the presence of HIV, HCV, or HBV infections, because there is an established time period between infection and detection of a pathogen (a known “window period”) to allow for effective testing of the three infections, whereas there is too much that is unknown when it comes to emerging pathogens and risk-analysis. A blood test can only test for something specific. If there is an unknown pathogen present in a blood sample, it cannot be tested for and thus would go undetected into the blood supply.

The CBS Report claims that only the sexually transmitted emergent pathogens would “have a higher incidence in the MSM population.” This report distinguishes between safe sex practices and higher-risk practices. Further, 68 agents of emergent pathogens were identified in CBS’s 2009 Report, each being assigned a risk priority level. The 2012 Report highlights 16 of these agents, and claims that MSM is only a risk factor for one agent, in the second lowest priority level category indicating concern. Moreover, the Report claims that very few of these agents are sexually transmitted. This would suggest that there is a disproportionate amount of concern surrounding MSM with regards to risk factors, especially when the safety of sexual behaviour is taken into account. These findings do not seem to be reflected in the current way that potential blood donors are being screened.

Question #18’s goal is to screen out people who engage in high-risk behaviour, and the epidemiological research that supposedly supports this goal are findings like the Public Health Agency of Canada’s Estimates of HIV Prevalence and Incidence in Canada, 2011, which found that MSM make up 46.7% of all individuals infected with HIV. However, whereas the high-risk behaviour that this question aims to screen out is related more to the safety of sex practices for sexually transmitted infections, rather than a person’s sexuality, the question unjustly targets a person’s sexuality, and not the safety of their sex practices.

Conclusion: policy considerations

Currently, the Canadian blood inventory is at its lowest since 2008. In the United States, a 2014 study conducted by the Williams Institute claimed that “[i]f MSM who have not had sexual contact with another man in the past twelve months were permitted to donate […] 185,808 additional men are likely to donate 317,000 additional pints of blood each year.” Such a policy modification would likely have similar outcomes in Canada. Our blood supply is critically low and there are a large number of potential blood donors that are not permitted to donate. The safety of the blood supply is of utmost importance, but a person’s sexuality in and of itself does not pose any danger. In order for any changes to blood donation operations to occur, CBS and Héma-Québec must submit a proposal of changes to Health Canada because they are under the direction of the regulation and policies of Health Canada and therefore may not modify or change the donor screening process. Given the current state of blood supply and donor regulations, this topic warrants much more discussion and evidence-based policies that keep in mind all of the stakeholders and communities.

Patenting Genetic Materials: Biotechnology and Intellectual Property Law

Posted By MJLH Management Board

Patenting Genetic Materials: Biotechnology and Intellectual Property Law

On March 18th, the McGill Journal of Law and Health will be hosting a panel discussion on patenting genetic materials. The event will be open to the public.

The Children’s Hospital of Eastern Ontario, a leader in genetic research, believes that patients have a right to know whether they have genetic disorders. They believe that patents on human genes pose a significant obstacle for diagnosing and caring for patients and so they have filed a test case in order to change the Canadian approach to gene patenting.

Professor Richard Gold is the founding Director of the Centre for Intellectual Property Policy at McGill University and is leading the team of experts advising the court in the CHEO test case. Dr. Julie Richer is the first author on the Canadian College of Medical Geneticists’ patent position statement as well as a doctor at CHEO. They will be discussing the practical and ethical considerations involved in genetic patenting, specifically in context of the CHEO case.

Time: March 18th, 5:30pm – 7 :30pm
Location: McGill Faculty of Law, New Chancellor Day Hall, Room 100

Breveter les gènes: biotechnologie et propriété intellectuelle

Le 18 mars, la Revue de Droit et Santé de McGill sera l’hôte d’un discours sur le brevetage des gènes.

Le Centre hospitalier pour enfants de l’est de l’Ontario (CHEO) croit que les patients ont le droit de savoir s’ils souffrent d’une maladie génétique. Selon eux, les brevets sur les gènes humains constituent un obstacle important pour le diagnostic et le traitement des patients à leur hôpital et partout au pays. Ils ont donc enclenché une procédure devant la Cour fédérale, laquelle pourrait permettre d’effectuer un changement à l’approche canadienne au brevetage des gènes humains.

Professeur Richard Gold est un des membres fondateurs du Centre des politiques en propriété intellectuelle à l’université McGill et dirige l’équipe d’experts qui aideront la cour à comprendre les enjeux génétiques et politiques de la cause du CHEO. Docteure Julie Richer est l’auteure principale d’un article du Collège canadien des généticiens médicaux présentant la position de l’institution concernant ces brevets. Elle est aussi une docteure à CHEO.

Heure & date: Le 18 mars de 17h30 à 19h30
Faculté de Droit, Université McGill, New Chancellor Day Hall (Local 100)

The Not Criminally Responsible Reform Act : a Recap of the MLJH annual Colloquium

Posted By Sabrina Mach & Katarina Daniels

At this year’s annual MJLH colloquium, six distinguished speakers presented their perspectives on the Not Criminally Responsible Reform Act, which received Royal Assent on April 11, 2014. The speakers were, in order of presentation: Dr. Patrick Baillie, Mental Health Commission of Canada; Dr. Renée Fugère, Institut Philippe-Pinel de Montréal; Dr. Archibald Kaiser, Schulich School of Law and Department of Psychiatry at Dalhousie University; Officer Michael Arruda, Service de police de la Ville de Montréal; Dr. Hy Bloom, Adjunct Professor at the University of Toronto’s Faculty of Law and Assistant Professor in the Department of Medicine; and, the Honourable Justice Mr. Richard Schneider, Chair of the Ontario Review Board. The Colloquium was moderated by Professor Alana Klein from McGill’s Faculty of Law.

The speakers each began their presentations by highlighting the amendments to the Criminal Code brought by the Not Criminally Responsible Reform Act, and critically analyzed the new Act’s merits and pitfalls. There was a general consensus that the reform was unnecessary, that it was not research-based, and that it would generate more problems than solutions – as Justice Schneider argued, the Act is a “bad solution to a problem that does not exist”. The speakers also presented reform paths that would better protect Canadian society, the underlying goal of the Act.

Important changes brought by the Not Criminally Responsible Reform Act

The Not Criminally Responsible Reform Act amends the Criminal Code’s mental disorder regime. In particular, the Act targets the Not Criminally Responsible (NCR) defence. As explained by Dr. Baillie, the defence is available to any accused suffering from a mental disorder that renders him or her incapable of appreciating the nature and quality of the criminal act.

According to the federal government, the Act is part of their commitment to “protecting victims of crime and to making streets and communities safer for Canadians”. This is evident in the Act’s first major amendment: identifying “safety of the public” as the primary concern in court and Review Board decision-making processes relating to NCR accused. Our speakers suggested that the link between the mentally ill and public security was created by the Conservative government in response to the recent highly sensational cases of Vince Li, Guy Turcotte and Allan Schoenborn – mentally ill individuals who committed horrific acts. Indeed, as Dr. Kaiser pointed out, the Conservative Party’s “Tough on Crime” website uses Vince Li as a poster boy for NCR reform.

The reform also creates a high-risk designation to protect the public. “High-risk” NCR accused will be held in custody in a hospital and will not be released by a review board until the courts revoke the designation. Additionally, a high-risk NCR accused would not be allowed unescorted visits into the community. Dr. Fugère noted that these leaves are an important part of therapy, but left unanswered whether the treatment process would be seriously compromised by this change.

Lastly, the reform enhances the rights of victims. Dr. Fugère clarified that victims are now notified when an NCR accused is discharged absolutely or conditionally, and can also be informed as to where the accused eventually resides. Officer Arruda argued that this change perpetuates stigma of the most vulnerable in society. He also made this striking comparison: individuals who have not been found guilty of a crime will have their private information shared with victims once they have been reintegrated into society, while individuals who have been found guilty of sexual assault crimes maintain their privacy.

Merits and Pitfalls of the Not Criminally Responsible Reform Act

The speakers all agreed that concern for public safety should be paramount in any legislation, but that the Act did not meet this goal. The main criticisms were: it is unjustified and unnecessary, it increases stigma in society, it creates financial problems for hospitals and provinces, and it reduces the support given to the mentally ill.

First, all speakers agreed that the new Act was not driven by sound research and policy. Dr. Fugère claimed that it is a purely political response void of any evidentiary support. Dr. Kaiser argued that it is unnecessary given the incremental progress that had been made under the previous reform following Swain. Interestingly, Justice Canada did commission the Mental Health Commission to prepare data on NCR accused before the bill was drafted. According to Dr. Baillie, however, the data was seemingly ignored: NCR findings occur in less than 1.8/1000 criminal cases in Canada and the recidivism rates of NCR accused are very low. The new legislation might therefore apply to fewer than 7 cases per year in Canada.

Second, many of the speakers emphasized the added stigma from the new “high-risk” designation. Dr. Bloom noted that with the new designation, there is now the possibility of “quadruple stigma”: they are deemed psychiatric patients, forensic patients, criminals, and possibly high-risk accused as well. Officer Arruda also explained that it is illogical to give a title to the NCR when criminals are not given one. This stigmatization will make it more difficult for NCR individuals to reintegrate into society.

Third, the Not Criminally Responsible Reform Act will be very costly to implement. All “high-risk” accused will be forcibly detained in hospitals. As a result, the number of hospital beds will have to increase – at a cost of $500 to $700 per day, according to Dr. Bloom. Dr. Fugère highlighted the need for more psychiatric experts in hospitals to treat these patients. These costs will fall on the provinces, which are responsible for health services.

Finally, the “high-risk” designation is said to worsen rather than improve the support given to the mentally ill. Justice Schneider calls this implication the real problem and grand irony of the Act. The new designation will discourage mentally ill individuals from entering the NCR system due to the mandatory detainment provision. Consequently, they will choose to go to prison instead, where they will not get the proper care required. This lack of treatment will in turn increase the probability of recidivism once these individuals are released. In Ontario, for example, Justice Schneider noted that there has been a 20% drop of NCR cases since the introduction of the new Act. The reform thus has the indirect effect of deteriorating the care available to the mentally ill, defeating the goals of the legislation.

Alternate paths of reform

The speakers suggested alternatives to the Act that would better respect the rights of the mentally ill and better protect society. Dr. Kaiser suggested that we should strive as a community to improve the condition of the mentally ill: law students should be encouraged to do pro bono work in the criminal justice system, and we should build on the foundations of human rights law for the mentally ill by ensuring that Canada respects its responsibilities under the UN Convention on the Rights of Persons with Disabilities and ratifies the Optional Protocol. Dr. Kaiser also advocated for resistance to the Act, encouraging everyone to write to his or her local MPs.

Justice Schneider argued that in order to reduce the number of criminal offences by NCR accused, the civil system should treat mental illnesses before they deteriorate to a point of criminality. He explained that prior to committing a criminal act, many accused were already in contact with civil mental health institutions. He considered a forensic patient to be a failed civil patient. Additionally, Dr. Kaiser and Dr. Baillie noted a correlation between poverty, mental illness and crime, and suggested a need to intervene on that level.

What to expect?

Our panel of experts agreed that we should expect a lot of Charter litigation in the future. Justice Schneider asserted that the Supreme Court of Canada will turn this Act around when it gets the opportunity. However, the opportunity for Charter litigation seems limited: to date, the amendments to the Criminal Code have only directly affected one individual. Additionally, many provinces have ordered their Crown Prosecutors not to seek “high risk” designation until the issue is resolved by the Supreme Court in order to avoid the high costs of potential Charter litigation. It remains to be seen when and whether the Act – as a whole, or in part – will be overturned.


Thank you for reading our recap. The recording of the event can be found by clicking this link. We hope to see you at the next MJLH Colloquium in 2016!