We can only guess how many hours of intellectual labour it took Madam Justice Catherine Aitken to write her careful, detailed and thorough 187-page judgment, but we know it took AIDS activists and a couple of law professors only a few minutes to denounce it to reporters.
They got the ink and media face time; she got it right, even though the substance of her reasoning got less space than the denunciations of that reasoning.
At issue was the claim by a gay man, Kyle Freeman, that his Charter rights had been violated by the Canadian Blood Services (CBS), which does not permit blood donations from gays if they had had sex with another man since 1977 because their blood has a much higher chance of being infected by HIV.
Mr. Freeman, and those groups who supported him, asserted that gays were unfairly discriminated against by this prohibition: Not only should the CBS be considered a kind of public agency, and therefore subject to the Charter of Rights and Freedoms, the equality rights section should protect Mr. Freeman's "right" to give blood.
When Judge Aitken's ruling became public, AIDS groups immediately and predictably attacked it. They warned, in particular, that all governments had to do to protect themselves from Charter scrutiny was to establish something at arm's-length such as the CBS. This would become common practice, they warned, thereby weakening the Charter.
There isn't a scintilla of evidence that this fear is justified. The CBS was established, we should remember, after the scandals and heartbreaks of contaminated blood that were exposed by the Krever Commission. It was created not to skirt the Charter but to protect Canadians to the greatest extent possible against blood contamination, one part of which is protecting the blood supply against sources that carry excessive risk.
Judge Aitken's ruling was therefore much more about the balance between society's right to be protected and Mr. Freeman's "right" to give blood, rather than the narrower and less interesting question of whether the CBS should escape Charter scrutiny.
These sorts of equality cases often get appealed, and appeal courts, to say nothing of the Supreme Court of Canada, can often disregard trial judges' findings. But anyone who reads Judge Aitken's compendious judgment would be tempted to say it looks bulletproof against a successful appeal.
For starters, Mr. Freeman was a terribly unreliable witness. He "lied" (Judge Aitken's word) repeatedly to the CBS, and admitted to having done so at trial. His testimony as to his sexual history was confusing and contradictory. He insisted that he had inquired into his partners' sexual histories, and believing himself and them to be free of AIDS, thought he was entitled to lie to the CBS, an assertion the Ontario Superior Court judge quietly destroyed.
No one has a "right" to give blood. Giving blood is a gift, not a right, to be given or received as donor and recipient see fit. The CBS was absolutely correct to place the highest possible premium on minimizing all risks to the blood supply, and the vast bulk of medical evidence at trial suggested that gay men were many, many times more likely to be carrying the AIDS virus than other people in the population.
Judge Aitken accepted that gay men might feel marginalized and disappointed by not being allowed to give blood, but ruled that the "impact is not in the same league as the impact on a blood recipient who has to use blood or blood products in order to survive or make life livable. … They also have a history of the system failing them. And if the system fails them again, their lives may be on the line."
So this case, as decided, wasn't really about governments setting up institutions to avoid Charter review, as the interest groups alleged, but rather about how in a "free and democratic society," as the Charter says, we can best be protected against risk. Once the risk was established, as it was conclusively at trial, the rest of the judgment flowed naturally to a reasonable, almost inescapable, conclusion.
Just as no one can justify yelling "fire" in a crowded theatre on the grounds of free speech, thereby risking all in the theatre, gay men, who deserve equality of treatment in all other respects, cannot overcome the medical facts of being more susceptible to HIV and therefore in donating blood and running the risk of infecting others.