Feds lose appeal to block human rights inquiry into blood ban

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OTTAWA —
The federal government has lost its appeal to block a Canadian Human Rights Commission inquiry into Health Canada’s role in a policy that prohibits sexually active gay men as well as some other folks in the LGBTQ2S+ community from donating blood.

On Friday, the Federal Court dismissed the federal government’s application for a judicial review, stating that despite the government’s arguments to the contrary, Health Canada is a proper party to the case, and the Canadian Human Rights Tribunal’s inquiry should continue.

In 2016, Christopher Karas brought a human rights complaint against Health Canada, alleging the agency discriminated against him on the basis of sexual orientation by denying him the ability to donate blood.

In 2019, the Canadian Human Rights Commission issued a preliminary decision that the case merited further investigation and referred the matter to a tribunal. This is what the Attorney General, on behalf of Health Canada, was fighting to stop the probe from going any further.

“The evidence collected warranted an inquiry by the Tribunal into Health Canada’s role in relation to CBS’s MSM [men who have sex with men] policy,” reads the decision from Judge Richard F. Southcott in part. “It appears there is a ‘live contest’ as to the exact nature of the relationship between Health Canada and CBS, which warrants further inquiry.”

Now, according to Karas’ legal team, barring an appeal, Health Canada will remain a responding party to the tribunal’s inquiry and will have to defend its involvement with the blood donation policy alongside Canadian Blood Services (CBS).

Throughout the proceedings so far Health Canada has argued that it has not discriminated against Karas as the agency has “no authority to rescind the policy” and a “limited role” to intervene in Canadian Blood Services’ work, unless it’s a matter of safety.

However, the submissions to the court presented to date indicate that Health Canada has been far more involved than it’s let on, playing an active role as the regulator that funds research into, and approves any blood donation screening criteria changes.

Further, in recent documents reviewed by CTVNews.ca, according to CBS, Health Canada required years of data collection and monitoring between each gradual loosening of the policy before it would consider further updates, something the agency denies in part.

In a recent email to CTVNews.ca regarding the documents, Gregory Ko, a partner with Toronto firm Kastner Lam, who is representing Karas, said that he anticipated that if the tribunal was allowed to continue its inquiry, “more evidence will emerge showing how Health Canada is a critical and necessary actor in the development of the gay blood ban.”

In a May interview with CTVNews.ca, Karas said that when he first learned that the federal government was looking to quash the case and potentially seek costs from him if their judicial review is successful, he was “shocked.”

“It was as if they were, you know, declaring war on queers,” he said.

Ending the blood ban is now a long-broken promise from the federal Liberals, with both Health Minister Patty Hajdu and Diversity and Inclusion and Youth Minister Bardish Chagger continuing to dismiss calls for them to intervene and change the rules as they once promised they would.

Instead, they cite ongoing research and say they are waiting for Canadian Blood Services and its Quebec counterpart Hema-Quebec to make submissions to move to a behaviour-based screening model.

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