An Ontario judge whose ignorance of how HIV is transmitted got him into hot water last January has
“acknowledged that his behaviour was inappropriate” and taken steps to address the concerns raised by his conduct during trial, including seeking information about HIV from a local group…
Although extreme, the judge’s behaviour highlights how the judicial system can be prejudiced against people with HIV. But if you’re a regular reader of this blog, you don’t need me to tell you that.
Update: Although the story from The Vancouver Sun (below) appeared to be the end of the matter, an article in the January 26th issue of Xtra questions whether it is possible for the judge to overcome his prejudice in one day.
In reply to the complainants the [Ontario Justice Commission] wrote that Douglas has admitted that his actions were wrong and has been educated about HIV by visiting the AIDS hospice Casey House one day last summer.
“Staff who work with the patients daily provided judge Douglas with a better understanding of the science, of the disease and of the people affected by the disease,” wrote OJC registrar Marilyn King.
The visit to Casey House was conducted in secret. It only came to light after media outlets received a copy of the reply King sent to a complainant.
Brian Finch, an HIV-positive activist, says he doesn’t think one visit is sufficient.
“Such ignorance in this day and age, I don’t think one day is enough,” he says. “I don’t know what is enough but it does seem kind of like going through the motions. How is someone like that going to deal fairly with HIV criminalization? Somehow when it comes to HIV the presumption of innocence in our justice system is reversed.”
Later in the article, Richard Elliot, executive director of the Canadian HIV/AIDS Legal Network notes:
“I would hope at a minimum it would include basic information about HIV and how it’s transmitted and how it’s not transmitted,” he says. “It should include information about the risk of infection associated with various sexual acts, which is also sometimes at play in some cases that come before judges.”
Elliott says judges also need to learn about the realities of HIV transmission in other circumstances.
“There’s an often-inflated sense of what the risks are,” he says. “We certainly see that when talking about occupational risk for police, paramedics, firefighters which can lead to compulsory HIV testing.”
Education should also include more information about the communities most affected by HIV, says Elliott.
“It needs to try to get judges more conscious of the context in which their decisions take place,” he says. “There should be one or more people living with HIV or people from the particular communities most affected by HIV.”
Education is badly needed, says Elliott, but some judges may not be willing to learn.
“To a great extent it depends on the individual judges,” he says. “There will probably be some who are less open to it. But it’s fairly urgent. It’s past due, but better late than never. We don’t control the timing.”
Ont. judge rebuked for HIV comments
By Megan O’Toole, National Post
January 9, 2009
TORONTO — An Ontario judge who asked a witness with HIV to wear a mask while testifying has been humbled by an Ontario Judicial Council decision that includes a recommendation to better educate judges about the disease.
Justice Jon-Jo Douglas has “acknowledged that his behaviour was inappropriate” and taken steps to address the concerns raised by his conduct during trial, including seeking information about HIV from a local group, according to the council’s finding.
Ontario’s Chief Justice also suggested that material on HIV/AIDS should be included in future educational sessions for judges.
AIDS groups on Friday lauded the findings.
“The bigger picture here is making sure that judges do have appropriate information and they don’t approach their jobs with misinformation about HIV,” said Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network.
“There is no place for such misinformation and prejudice anywhere, especially in the justice system,” added Ryan Peck, executive director of the Ontario HIV and AIDS Legal Clinic. “People living with HIV deserve equal, respectful treatment.”
Douglas sparked outrage among the two AIDS groups in December 2007 after telling a Crown attorney he would hear no further evidence until a witness who had HIV and hepatitis C was either masked or moved into a separate courtroom to testify.
When Crown attorney Karen McCleave told the court she was not aware of any health concerns that would arise with the presence of the witness, the judge responded: “The HIV virus will live in a dried state for year after year after year and only needs moisture to reactivate itself,” transcripts said.
McCleave also produced an affidavit from an expert in infectious disease who said there was no risk of transmission without direct exposure to blood, semen or vaginal fluid.
An application to have Douglas removed from the case was denied by the Ontario Superior Court of Justice, but he later removed himself voluntarily.
As a result of a complaint launched by the two AIDS groups, the judicial council launched a probe into the judge’s behaviour.