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HIV/AIDS Policy & Law Review 13(1) — July 2008

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HIV/AIDS Policy & Law Review 13(1) — July 2008 Canadian HIV/AIDS Legal Network HIV/AIDS POLICY & LAW REVIEW VOLUME 13, NUMBER 1, JULY 2008 Delivery past due: global precedent set under Canada’s Access to Medicines Regime Four years to the month after Parliament passed a law to enable the supply of lower-cost generic medicines to developing countries in need, the first exports are finally about to happen. In this article, Richard Elliott provides an overview of recent developments under Canada’s Access to Medicines Regime (CAMR), and identifies key reforms needed to streamline the regime so that it can more easily be used to address public health problems in developing countries. WTO rules and Canada’s law on exporting generics Inside Under the World Trade Organization’s (WTO’s) treaty on intellec- tual property, the Agreement on Trade-Related Aspects of Intellectual Thai Government re-launches Property Rights (TRIPS),1 member countries must grant exclusive pat- war on drugs 35 ent rights on medicines. But they retain the right to grant compulsory Canada: Legislation would impose licences, which legally authorize the production of lower-cost, generic mandatory minimum sentences versions of patented drugs in exchange for royalties paid to the patent- for drug offences 25 holder. Breaking the patent-holder’s monopoly and introducing compe- tition brings down prices. U.K.: Developing guidance for TRIPS also states, however, that products made under compulsory HIV prosecutions 13 licences must be “predominantly for the supply of the domestic mar- Access to condoms in U.S. ket,” thereby limiting the use of compulsory licensing in one WTO prisons 20 member country to produce generic medicines predominantly or exclu- sively for export to any other country. This undermines the ability of Court strikes down restriction importing developing countries to use compulsory licensing effectively in Canada’s medical marijuana program 45 cont’d on page 5 HIV and human rights in U.N. drug control policy 40 Switzerland: Statement on sexual transmission of HIV by people on ART 37 Funding for this publication was provided by the Public Health Agency of Canada. HIV/AIDS POLICY & LAW REVIEW Published by the Canadian HIV/AIDS Legal Network 1240 Bay Street, Suite 600 Toronto, Ontario Canada M5R 2A7 Tel: +1 416 595-1666 Fax: +1 416 595-0094 [email protected] www.aidslaw.ca Providing analysis and summaries of current developments in HIV/AIDS-related policy and law, the HIV/AIDS Policy & Law Review promotes education and the exchange of information, ideas, and experiences from an international perspective. The editors welcome the submission of articles, commentaries and news stories. Managing Editor: The Review has been published since 1994. Issues 1(1) to 5(2/3) were David Garmaise [email protected] published under the title Canadian HIV/AIDS Policy & Law Newsletter. Editor, Canadian Developments: Issues 5(4) to 9(2) were published under the title Canadian HIV/AIDS Alison Symington [email protected] Policy & Law Review. Editor, International Developments: Current and back issues of the Review are available via Richard Pearshouse [email protected] www.aidslaw.ca/review. Editor, HIV/AIDS in the Courts — Canada: Sandra Ka Hon Chu [email protected] For membership information, write to the address above or visit www.aidslaw.ca/joinus. Editor, HIV/AIDS in the Courts — International: Leah Utyasheva [email protected] Funding for this publication was provided by the Public Coordinator: Vajdon Sohaili Health Agency of Canada. Translators: Roger Caron, Jean Dussault, Josée Dussault, The opinions expressed in this publication are those of Johanne Forget the authors/researchers and do not necessarily reflect the Layout: Liane Keightley official views of the Public Health Agency of Canada, the American Bar Association, or the Canadian HIV/AIDS Legal For the list of members of the Editorial Board of the HIV/AIDS Policy & Law Review, please visit www.aidslaw.ca/review. Network. About the Canadian HIV/AIDS Legal Network © Canadian HIV/AIDS Legal Network, 2008. We encourage the dissemination of the information contained in the Review and will The Canadian HIV/AIDS Legal Network (www.aidslaw.ca) promotes grant permission to reprint material, provided that proper credit is the human rights of people living with and vulnerable to HIV/AIDS, given. The editors kindly request a copy of any publication in which in Canada and internationally, through research, legal and policy material from the Review is used. analysis, education and community mobilization. The Legal Network is Canada’s leading advocacy organization working on the legal and ISSN 1712-624X human rights issues raised by HIV/AIDS. Subscriptions About the American Bar Association (ABA) The HIV/AIDS Policy & Law Review is published three times per year. With more than 413,000 members, the ABA (www.abanet.org) To subscribe, write to the address above. is the largest voluntary professional membership organization in Annual rate: the world. As the national voice of the legal profession, the ABA Within Canada: $CA 75.00 works to improve the administration of justice, promotes programs International: $US 125.00 (payment in US funds required) that assist lawyers and judges in their work, accredits law schools, Single or back issues: provides continuing legal education, and works to build public Within Canada: $CA 12.00 understanding around the world of the importance of the rule of law International: $US 12.00 (payment in US funds required) in a democratic society. We would like to hear your views and opinions. Letters to the editor, responses to specific Comments? articles, and comments on the format of the Review are welcome and encouraged. 2 HIV/AIDS POLICY & LAW REVIEW CONTENTS FEATURES Delivery past due: global precedent set under Canada’s Access to Medicines Regime 1 Developing guidance for HIV prosecutions: an example of harm reduction? 13 Access to condoms in U.S. prisons 20 CANADIAN DEVELOPMENTS Legislation imposing mandatory minimum sentences for drug offences passes second reading 25 Manitoba legislation would authorize testing for HIV without informed consent 27 Organ donation regulations limit donations from gay men 29 Complaint filed concerning judge’s conduct 30 Health Canada releases report on supervised injection facility 31 In brief 32 Changes to the Immigration and Refugee Protection Act proposed in 2008 Budget Independent review of prisons released Provincial funding announced for Ottawa harm reduction program Federal government diverts funding from community-based organizations to vaccine initiative INTERNATIONAL DEVELOPMENTS Thailand: government re-launches war on drugs and people who use drugs 35 Switzerland: Statement on sexual transmission of HIV by people on ART 37 U.S.: PEPFAR reauthorization bills pass House, Senate committee 38 HIV and human rights in U.N. drug control policy: making inroads, barely 40 In brief 42 Russia denies HIV treatment to prisoner California: Governor vetoes another prison condom bill, but leaves door ajar Australia to legislate to remove same-sex discrimination ILO publishes digest of good legislative practices in Africa U.N. Secretary-General calls for an end to criminal law approaches to vulnerable populations cont’d VOLUME 13, NUMBER 1, JULY 2008 3 HIV/AIDS IN THE COURTS – CANADA Court strikes down restriction in Ottawa’s medical marijuana program 45 Refugee claimant’s identity as cross-dresser must be considered in assessing adequacy of state protection 47 Case of disclosure of HIV status helps to clarify privacy law in Ontario 48 HIV-positive woman’s appeal for absolute discharge dismissed on grounds of public safety 49 Criminal law and HIV transmission or exposure: seven new cases 50 In brief 53 Case of HIV-positive gay transvestite referred to new refugee panel for re-determination Application for judicial review denied for HIV-positive refugee applicant from Mexico Court rules that defamation not proved because reputation not “materially affected” Final charges against former director of Canadian Red Cross withdrawn HIV/AIDS IN THE COURTS – INTERNATIONAL European Court of Human Rights rejects prisoner’s plea for prison needle exchange 56 South African High Court defends the right to water 59 Court says French government’s refusal to authorize adoption violates woman’s human rights 61 In brief 62 ECHR: Ukraine held responsible for inhuman and degrading treatment of HIV-positive prisoner Sweden: Man found guilty of infecting two women with HIV Nepal: Supreme Court makes landmark decisions on LGBTI rights and the right to confidentiality U.S.: Texan man acquitted in medical marijuana case Egypt: Court convicts men for “debauchery” Indian court rules HIV is a ground for divorce 4 HIV/AIDS POLICY & LAW REVIEW Delivery past due: global precedent set under Canada’s Access to Medicines Regime cont’d from page 1 as a tool to get lower-cost treatment daily, simplifies one of the first-line the 2003 WTO Decision but not for patients. combination regimens recommended required by the WTO Decision. The In August 2003, WTO members, by the World Health Organization Health Canada review process took under pressure from developing (WHO) for treating people living seven months; the product received countries and treatment activists, with HIV/AIDS.8 This combination approval in July 2006.9 On 10 adopted a General Council Decision did not previously exist. August 2006, shortly before the XVI waiving this restriction under certain MSF indicated that it would seek International AIDS Conference in conditions.2 In
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