CANADIAN NEWS

This section provides brief reports of developments in legislation, policy, and advocacy related to HIV/AIDS in Canada. (Cases before the courts or human rights tribunals in Canada are covered in the section on HIV in the Courts – Canada.) The coverage is based on information provided by Canadian correspon- dents or obtained through scans of Canadian media. Regular correspondents are listed on page 2; information about occasional correspondents is provided with their contribution. Address correspondence to David Garmaise, the editor of Canadian News, at [email protected].

Québec: An outbreak of HIV/AIDS-related stigma and discrimination

In the space of a few weeks in January 2004, actions by three different applicants would be automatically institutions in Québec combined to threaten the human rights of excluded, but that they would be people living with HIV/AIDS, raise the spectre of mandatory HIV test- required to explain how they got ing, and create unnecessary public fears about the spread of HIV infected. If they were infected as a infection. In response to what they called “the worst weeks in recent result of homosexual activity, the history for people living with HIV/AIDS in Québec,” the Canadian Grand Séminaire said, they would HIV/AIDS Legal Network and COCQ-Sida (the Québec coalition of have to convince the administration community-based organizations fighting AIDS) called for a province- that they were serious about their reli- wide campaign against HIV/AIDS-related stigma and discrimination.1 gious vocation.3 Marcel Demers, the A victory was achieved when a Montréal catholic seminary rector of the Grand Séminaire, said announced that it had backed down from its initial proposal to that homosexual applicants would not mandatorily test all applicants for priesthood for HIV, but much more be automatically refused, but that is needed to fight the rapid outbreak of mandatory-testing proposals. their chances of being accepted were minimal.4 The three institutions involved were seminary, announced that as of Then, the Grand Séminaire the Grand Séminaire de Montréal, the September 2004, all applicants for the claimed that homosexuality had noth- Ste-Justine Children’s Hospital, and priesthood would be required to ing to do with it. At a news confer- the City of Montréal. undergo HIV testing.2 ence on 12 January, the Archbishop of Initially, the Grand Séminaire the Diocese of Montréal, Cardinal Grand Séminaire linked the HIV testing policy with Jean-Claude Turcotte, said that On 10 January 2004, the Grand homosexuality. It said that the new “homosexuality is not a criterion.” Séminaire de Montréal, a Catholic policy did not mean that HIV-positive The issue, he said, was the “health of

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the candidates” and their “[physical] check the person’s state of health. An HIV is not a barrier to fulfilling the capacity to fulfil their duties.” employer can discriminate on the duties of priesthood. HIV-positive peo- Cardinal Turcotte said that the priest- basis of a person’s handicap if it pre- ple can and do lead long, healthy lives. hood was “a lifelong project” and that vents the person from carrying out the It is often not their HIV-positive status, but society’s discrimination that makes “AIDS is a serious illness that can cut job, she said, but there is nothing it impossible for them to make a full short the life of a person.”5 inherent in HIV that prevents a person contribution – which is exactly why Cardinal Turcotte said that the from saying mass or carrying out they continue to need protection 9 Grand Séminaire was not the only other priestly duties. against the types of discrimination Catholic seminary to require HIV test- On the same day, the Legal non-voluntary HIV testing opens the ing. He said that HIV testing was Network and COCQ-Sida wrote to the door to, and why it is so important for mandatory at seminaries in Edmonton Québec Human Rights Commission the Commission to launch an investiga- and Vancouver, in many US states, strongly urging the Commission to tion. 6 10 and in Africa. launch an investigation. In that letter, The decision by the Grand Séminaire the two organizations said that “the and the public statements by Cardinal Reaction decision by the Grand Séminaire de Turcotte perpetuate stigma and misin- The Grand Séminaire policy was Montréal to ask applicants for priest- formation about HIV and people with denounced by numerous gay and hood to submit to an HIV test can HIV. All Quebeckers living with HIV HIV/AIDS organizations. A represen- have a negative impact on Québec have received a slap in the face from an tative of the Association gay anonyme society, by promoting discrimination institution that should practice what it pour prêtres exclusivement (AGAPE), against all people ... living with should preach: respect and inclusion. a group of gay Catholic priests that HIV/AIDS.” The letter went on to say: The decision and the public statements works within the church, character- have been widely reported in the media Submitting applicants to an HIV test – in fact, no other story on HIV has ized the policy as “excessive” and said cannot be justified.... [U]nder Canadian received as much coverage in the that if he were planning to enter the law, no employer has the right to media in recent history. The message Grand Séminaire today, he would impose mandatory pre-employment that people risk taking from it is that it have to think twice about it. Gilles HIV testing, and it is also against the is OK to exclude people with HIV Marchildon, Executive Director of human rights laws of all provinces to because they are incapable of fully par- Égale Canada, a gay rights organiza- demand such information because to ticipating in the activities of life. We tion, said that the policy would do so amounts to discrimination based “further stigmatize people living with on disability. The human rights acts HIV/AIDS by making them unwel- also do not in any way provide an come within the church.” Robert exemption to the Catholic Church that The decision by the Grand would allow it to demand pre-employ- Rousseau, of Séro Zéro, an AIDS ment HIV testing of potential employ- Séminaire and the public service organization, said that the ees. Under article 20 of the Québec statements by Cardinal policy sends a dangerous message of Charter of [Human] Rights and 7 exclusion. Freedoms a distinction or exclusion Turcotte perpetuate stigma On 13 January, the Canadian might not be discriminatory if it is and misinformation about HIV/AIDS Legal Network and based on a “qualification required for COCQ-Sida wrote to Cardinal an employment” or is “justified by the HIV and people with HIV. Turcotte to protest the new policy.8 religious nature of a non-profit institu- On 14 January, the Québec Human tion.” But clearly being HIV-negative is Rights Commission said that it would not a necessary ... requirement to be a are concerned that we will see an examine whether it should launch an priest, and the archdiocese has a duty, increase in discriminatory practices like all other employers, to accommo- investigation into the matter. against people with HIV if the date any employee with a disability (be Commission spokesperson Ginette Commission does not launch an it HIV or something else). And there is investigation. l’Heureux said that the church may be nothing in the “religious nature” of the contravening the Québec Charter of Church that would provide any justifi- The Human Rights Commission Human Rights and Freedoms if the cation or requirement to only hire HIV- agreed to consider the request to purpose of asking for the test is to negative priests. launch an investigation.

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On 15 January, the Legal Network lished her name.13 that the real issue in this case is that and COCQ-Sida issued a news release Dr Lucie Poitras, Director of “after 1996, there was no proper fol- reiterating the points raised in the let- Professional Services at the hospital, low-up in the institution.” He also ter to the Human Rights Commission. said that the risk of HIV transmission noted that the Québec College of “The consequences of HIV antibody to the patients during surgery was testing continue to be different from “extremely weak ... almost non-exis- many other medical tests,” said Lise tent.” Khiem Dao, the hospital’s Deep public fears particular Pinault, Executive Director of COCQ- Executive Director, said that the hos- Sida. “No doubt, there are significant pital was nevertheless recommending to HIV and AIDS should not benefits to people who undergo volun- that the patients be tested because drive public policy. tarily HIV testing. They can access “children’s safety takes priority over treatment if they are HIV positive, and all other considerations.”14 take steps to prevent HIV transmis- Dr Poitras said that the surgeon sion. However, if the HIV test is not informed her immediate supervisor in Physicians was working on a disclo- entirely voluntary and undertaken 1991 that she was HIV-positive, and sure policy for doctors with conta- with appropriate counselling, it can be that a committee was formed to deter- gious illnesses.19 used to unjustly discriminate against mine “what kind of medical work [the In an editorial published on 27 people, to exclude them from full par- surgeon] could do.”15 However, the January, the Montréal Gazette argued ticipation in society, based on false hospital was unable to find any against mandatory testing of surgeons. notions about HIV and people with records of the committee’s delibera- [M]edical professionals are best suited 16 HIV.” Ralf Jürgens, Executive tions after 1996. to provide guidance on such questions. Director of the Legal Network said, Deep public fears that are particular to Reaction “In 2004, discrimination against HIV and AIDS should not drive public people with HIV/AIDS in Canada Some media commentators expressed policy. remains pervasive, and we cannot shock that an HIV-positive physician Experts say the risks of HIV transmis- allow further injustice to happen.”11 was allowed to operate on a patient; sion from surgeon to patient, if estab- The Legal Network prepared opin- others claimed that any risk (no matter lished protocols are followed, are so ion pieces that were published in both how low) that could lead to the trans- low [that] systematic and recurrent Le Devoir and the Toronto Star.12 The mission of a serious or deadly disease testing of surgeons would be a waste of Network also wrote to Archbishop should be disclosed to patients prior to money. In the U.S. about 25,000 peo- Raymond Roussin in Vancouver treatment.17 In some media reports, ple who had been operated on by HIV- and Archbishop Thomas Collins in there were calls for mandatory testing positive surgeons have been tested, and Edmonton to urge them to reconsider of physicians. not one was HIV-positive. There have their HIV testing policies for Philippe Couillard, the Québec been only two known infections of this seminarians. Minister of Health and Social kind in the entire world. Greater Services, said that HIV-positive doc- patient protection might well be achieved by testing surgeons for Ste-Justine Children’s tors should disclose their condition to influenza, checking their blood-alcohol Hospital hospital directors, but that mandatory count, or not letting them operate if On 22 January 2004, officials of the HIV testing of physicians would be they haven’t had, say, six hours of Ste-Justine Children’s Hospital called “legally dangerous.” He said that HIV sleep. a news conference to announce that it testing could violate privacy laws and was recommending that 2614 patients the Québec Charter of Rights and And who, exactly, should be tested? Why test surgeons but not nurses ... or be tested for HIV infection because it Freedoms. “It raises numerous ques- orderlies? How often should all these had just learned that a surgeon who tions regarding confidentiality,” he people be tested? Weekly? And since operated on these patients was HIV- said, “and testing can create a false HIV transmission from patient to doc- 18 positive. The hospital did not name sense of security.” tor is much more common than vice- the surgeon, who died in 2003. How- Couillard pointed out that the sur- versa, should all patients be tested, ever, media sources disclosed that the geon “took very strict precautions too? Ultimately, the question becomes: surgeon was a woman and also pub- when she acted on patients.” He said Should everybody who provides or

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receives a medical service be tested? would never get through the day. For within health-care institutions for We think not. example, both authors of this article physicians infected with HIV, but said have notoriously bad handwriting. It’s instructive to remember the exam- that it objected to systematic screen- Should they warn their patients about ple of the late Quebec-born surgeon ing of physicians. Dr André Senikas, the serious hazards of illegible hand- Lucille Teasdale, who safely treated writing (which are likely greater than 39,000 people in her Ugandan clinic in 1 in 10 million)? the 15 years after she contracted HIV from an injured soldier. After being This would mean that almost any less Maintaining the privacy of diagnosed, she was advised by her than optimal condition – just the HIV-infected health-care own London doctor the public interest physician having a bad day might was best served by her continuing to qualify – would have to be disclosed providers can be reasonably do surgery. She took precautions and to the patient. Requiring disclosure of balanced against the right of continued, as did ... the Ste. Justine’s all conditions potentially affecting surgeon.... physicians would paralyze patient patients to know of decision-making.... [The Ste-Justine surgeon] did the ethi- potential harm. cally right thing by reporting her ill- The rule for consent in Canada is to ness to her surgical supervisor in 1991, tell patients what a “reasonable per- and the supervisor did the right thing son” would want to know. In our view, President of the QMA, said that by creating an internal “expert com- anything with less than a one in a mil- mittee” to monitor her health and lion chance of occurring is so remote “When a physician is infected, work, in accordance with Quebec as not to require disclosure to a rea- whether with HIV or another patho- College of Physicians guidelines.20 sonable person.... [T]he way to protect genic infection, decisions affecting the public is not to impose an impossi- the physician’s right to work should The Gazette editorial went on to say ble rule of disclosure. The best way is be based on professional self-regula- that shortcomings in the hospital’s to ensure that physicians ill with con- tion, as well as on the best scientific oversight system need to be corrected. ditions that might affect their ability to data available, and not on political or On 2 February, Philip C Hébert, a work safely have access to confidential emotional considerations.”22 family physician and bioethicist at advice and medical care. The QMA also called for universal Sunnybrook and Women’s College In the case of the HIV-infected sur- precautions to protect both patients Health Sciences Centre in Toronto, geon, it is reasonable to require report- and physicians. and Philip B Berger, chief of the ing to a medical board that could Department of Family and independently assess the health practi- City of Montréal Community Health at St Michael’s tioner’s fitness to practise. This will The Canadian Press said in a story on Hospital in Toronto, said in an opin- protect patient and practitioner alike. 24 January 2004 that new recruits for ion piece in the Toronto Star that the In the matter of patient safety, the the Montréal Police Force will be hospital’s actions have “naturally physician’s competence and profes- tested for HIV starting 1 March 2004, caused much worry for [the patients’] sionalism are paramount – not his or and that candidates who test positive families.” The physicians went on to her HIV status. No ethical physician for HIV will not be hired. In the arti- say that would knowingly place a patient at cle, Peter Yeomans, who is the City of risk of avoidable harm. Maintaining Montréal executive committee mem- [t]he risk of HIV transmission from the privacy of HIV-infected health-care ber responsible for public security, physician to patient is of extremely providers can be reasonably balanced cited “public security” as one of the low magnitude – lower than many against the right of patients to know of reasons for the policy. “A police per- risks we accept daily. HIV will be potential harm.21 passed on from an infected surgeon to son is called into emergency situ- his or her patient once in every 10 mil- Also on 2 February, following consul- ations where there is obviously lion encounters. The risks of almost tations with its members, the Québec injuries, open lesions,” he said.23 everything we do are more common Medical Association (QMA), a divi- In the Canadian Press story, than this.... sion of the Canadian Medical Yeomans suggested that money was If physicians had to disclose every- Association, came out in favour of a also a concern. In another article a thing with a 1 in 10 million risk, we disclosure and monitoring process few days later, Yeomans provided the

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following explanation for the policy: in perfect health,” l’Heureux said.27 with HIV, and by their willingness to “We want to protect the employee and On 29 January, the Gazette reported exclude them. The government has an the public – it’s a public health issue. that a survey it undertook of associa- We’re looking at a 30-year proposal tions representing dentists, nurses, here; we want to bring people into the restaurants, and ambulance crews force and work right to retirement.”24 revealed that none of them require that The government has an 28 applicants for jobs be tested for HIV. obligation to counter the Reaction However, Peter Yeomans was later In a news release issued on 26 quoted as saying that HIV testing stigma and prejudices. January, the Legal Network and should be considered for other public COCQ-Sida pointed out that all mem- employees; he named ambulance tech- bers of the police forces take “univer- nicians and firefighters as examples.29 sal precautions” to protect themselves obligation to counter the stigma and and others while on their job. It makes Call for a campaign prejudices,” said Lise Pinault. no sense to suggest that new recruits against stigma and “Between 14,000 and 22,000 peo- need to be free from HIV, the organi- discrimination ple in Québec are believed to be living zations said. They added that this On 26 January 2004, in light of the with HIV or AIDS (out of a total of could soon lead to proposals that all events at the Grand Séminaire, the 56,000 in Canada). Because of new members of the police forces be Ste-Justine Children’s Hospital, and treatments, the majority of these peo- regularly tested for HIV and other the City of Montréal, the Legal ple are living longer and in better infectious diseases, such as hepatitis – Network and COCQ-Sida issued a health,” Jürgens added. “It is ignorant which is not necessary and would second joint news release, calling on to suggest that HIV-positive people therefore be discriminatory.25 the Québec government to fund a cannot be employed and fully con- Keith Monteith, Executive Director province-wide campaign against tribute to society.” of AIDS Community Care, a Montréal HIV/AIDS-related stigma and dis- The Legal Network and COCQ- AIDS service organization, said that crimination.30 Sida also wrote to Minister of Health “to exclude someone from a job who’s “First, all Quebeckers living with Couillard to formally present their call going to be able to function for many, HIV received a slap in the face from for a province-wide campaign.31 many years” is discriminatory and is Cardinal Turcotte, when he made giving in to public fears. “I don’t see public statements defending the deci- Grand Séminaire how [HIV-positive members of the sion to ask all priesthood applicants to backs down force] can transmit HIV to someone undergo HIV testing, and suggested The actions of the Legal Network, during the course of their work,” that HIV-positive people would not be COCQ-Sida, and others quickly pro- Monteith said, “considering they able to fulfill the duties of priesthood,” duced results on one of the fronts. On know how to take precautions.”26 said Ralf Jürgens. “Then, there have 16 February 2004, the Archdiocese of The Québec Charter of Human been calls for mandatory HIV testing Montréal issued a statement saying Rights and Freedoms prohibits dis- of health-care workers, despite 20 that it had rescinded its plan to require crimination on the basis of a disabili- years of consensus that this is not the that applicants to the Grand Séminaire ty. The Québec Human Rights best way to protect patients, and undergo HIV testing.32 Commission explicitly recognizes despite the minimal risk of HIV trans- Ginette l’Heureux of the Québec HIV as a disability. “Health tests can- mission from health-care providers to Human Rights Commission expressed not be ordered unless they are directly patients. And finally, Peter Yeomans ... satisfaction with the announcement, related to the job,” said Commission irresponsibly suggested that applicants saying “I think they’ve reflected on spokesperson l’Heureux. She said it for Montreal’s police need to be free this and have been enlightened.” Ralf was up to the employer to prove that from HIV to be able to do their job,” Jürgens said, “This seems to indicate testing is directly related to the job he added. that they got the message that this and that an illness prevents the person “We are shocked by how little peo- would have been illegal.... For us, the from doing the work. “We can’t dis- ple in power and ordinary Quebeckers statement is a positive one.... We hope criminate against someone who is not seem to know about HIV and people that they are acting in good faith.”33

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While the community can take 5 F Deglise. Grand Séminaire de Montréal – Dépister le 18 HIV-positive docs should advise their hospitals: VIH dans une logique de “transparence.” Le Devoir,13 Québec health minister. Canadian Press, 26 January 2004. some satisfaction that its actions pro- January 2004. 19 Ibid. duced positive results, the events at 6 Ibid. 20 HIV: Public safety doesn’t require HIV testing.The the Grand Séminaire, the Ste-Justine 7 Ibid. Gazette, 27 January 2004. Children’s Hospital, and the City of 8 The letter is available at www.aidslaw.ca/francais/ 21 Supra, note 17. Contenu/themes/tests/Lettre_CardinalTurcotte.pdf. Montréal clearly demonstrate that 22 Québec Medical Association.The QMA supports an HIV/AIDS-related stigma and dis- 9 D Parkes. Seminary’s demand for HIV test may violate internal disclosure process. News release. Available at crimination are still very much alive rights: commission.The Gazette, 14 January 2004. www.amq.ca/ang/pri_nou_commu.htm#6fevrier2004. 10 The letter is available at www.aidslaw.ca/Maincontent/ 23 New Montreal police recruits will be tested for HIV in Canada and that a well-organized issues/testing/Lettre_HIVTestCQDPJ.pdf. after March 1. Canadian Press, 24 January 2004. response is required to deal with the 11 Canadian HIV/AIDS Legal Network, and Québec 24 I Block. Montreal police alone in HIV test.The Gazette, problem. Coalition of Community-Based Organizations Fighting 29 January 2004. AIDS (COCQ-Sida). HIV testing of priesthood candi- 25 dates called illegal and unethical. News release, 15 Supra, note 1. – David Garmaise January 2004. 26 S Banerjee. City’s ban on HIV-positive cops disputed. 12 R Jürgens. Rappel au cardinal Turcotte et autres The Gazette, 28 January 2004. intéressés – Quelques rudiments du test du VIH. Le 27 Ibid. Devoir, 16 January 2004; R. Jürgens. A refresher course on HIV testing. Toronto Star, 20 January 2004. Both articles 28 Supra, note 24. 1 Canadian HIV/AIDS Legal Network, and Québec are available at Coalition of Community-Based Organizations Fighting 29 D Parkes. Seminary won’t test for HIV.The Gazette,17 www.aidslaw.ca/Media/archivedreleases.htm#pcl. AIDS (COCQ-Sida). AIDS and human rights organiza- February 2004. tions say no to HIV testing based on ignorance and prej- 13 P Ray. Montreal Ste-Justine Children’s Hospital will test 30 Supra, note 1. udice. News release, 26 January 2004. Available at 2,614 patients for HIV. Canadian Press, 22 January 2004. www.aidslaw.ca/Media/press-releases/ 31 The letter is available at www.aidslaw.ca/Maincontent/ 14 Ibid. e-press-jan2604.htm. issues/testing/E-letter_to_health_minister.PDF. 2 15 Ibid. D Parkes. Catholic seminary to screen for HIV. The 32 Catholic Archdiocese of Montréal.The Archdiocese of Gazette, 10 January 2004. 16 L Lévesque. Quebec Medical Association adopts dis- Montreal continues its reflection but excludes the imposi- 3 Les tests de dépistage du sida pour les prêtres sont cri- closure policy for HIV-positive doctors. Canadian Press, tion of H.I.V. test. News release. Available at tiqués. Radio Canada, 11 January 2004. 5 February 2004. http://diocesemontreal.org/accueil/langues/. 17 33 4 Supra, note 2. P Hébert, P Berger. Dealing with surgeons and HIV. Supra, note 29. Toronto Star, 1 February 2004.

Alberta: New bill will allow for mandatory HIV testing in emergency situations According to an article in the Calgary Herald,1 Edmonton Conservative A private member’s bill is expected to be introduced in the spring MLA Thomas Lukaszuk is expected to 2004 session of the Alberta Legislative Assembly that will allow for introduce legislation that will force forced testing of individuals for HIV, hepatitis, and other blood- individuals to undergo tests for HIV, borne diseases if their bodily fluids come into contact with emer- hepatitis, and other bloodborne dis- gency workers or Good Samaritans.The bill will likely have strong eases if their bodily fluids come into support from within the ranks of the governing Conservatives. contact with those of a police officer,

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