Three Conservative MPs gave a press conference Tuesday morning to mark the start of Pride Month, outlining their plan to spend the next few weeks pressing the Liberal government to end the blood ban. Openly gay MP Eric Duncan, along with MPs Michelle Rempel Garner and Bernard Généreux, made the demand of the government and presented a draft order that they say could allow the minister to make the changes, in spite of Canadian Blood Services (CBS) being at arm’s length from the government.
“It is long past due for the federal government to put an end to the stigma and discrimination that men who have sex with men face in this country,” Duncan said. “Today we are calling on the government to do the right thing: Stop the legal games in court to silence gay men who are just asking you to keep your promises.”
Duncan referred to the government’s promise to end the ban as “virtue signalling” while at the same time arguing that the decision is out of the government’s hands
Currently, CBS requires men who have sex with men (MSM) and some trans folks to remain abstinent for three months in order to donate blood. Justin Trudeau’s Liberals campaigned on ending the blood ban in both 2015 and 2019.
The draft ministerial order released at the Tory press conference targeted the Blood Regulations under the federal Food and Drug Act, and would insert clauses to protect MSM.
“If [Minister of Health Patty Hajdu] does not believe it’s adequate, she has an obligation to explain what gaps in the legislation exist and take immediate action to rectify that,” said Rempel Garner. “The federal government cannot be allowed to skate by on thin talking points suggesting that they can’t make the change or that they can throw money at the problem and it will go away.”
Rempel Garner said that the federal government is the regulator, and that they can introduce legislation in order to make changes. If they refuse to, their motives must be questioned.
Analysis of the draft order, however, suggests that might not be the case. University of Ottawa law professor Y.Y. Chen says that the text released by the Conservatives won’t have the desired outcome.
“It’s an interesting approach,” Chen says of the draft.
The first part of the order would remove any terms permitting the MSM blood ban under Health Canada regulations, though there don’t appear to be any such terms in place. “I don’t know what that section actually will do if there’s nothing for them to cancel,” Chen says. “It might simply be there to be sure.”
On Tuesday, CTV News reported that Health Canada’s regulatory arm, which provides oversight of CBS in an independent capacity from the minister, ordered there to be two-year intervals between changes to the donor screening criteria before they could be updated again in order to monitor the impacts. The last policy change was in 2019, which reduced the deferral period to three months from one year. That means a policy change could well be in order for 2021.
The second part of the Conservative draft order references sections 13(1) and (2) of the Blood Regulations, which allows the minister to add terms or conditions to an establishment’s authorization if she “has reasonable grounds to believe that it is necessary to do so to prevent a compromise to human safety or the safety of blood.”
Chen says that this regulation relates to a concern around preventing harm to human safety, as opposed to a compromise to human rights or equality.
“I don’t think that fits that specific circumstance, nor does it fit the circumstance stipulated under Section 13(1), which is the failure on the part of establishments like the CBS to show that the current policy that is introduced will not compromise human safety,” Chen says. “They can show that what they’re doing now is in accordance with trying to minimize blood safety concerns.”
He says that the idea of the draft order makes sense, but isn’t sure that it can be done by relying on those sections of the Blood Regulations as it currently asserts.
Duncan also suggested that the minister of health create a new regulation to change the policy, if need be. “If she doesn’t believe the tools are there, she has the power to create those tools to get the change done safely,” the Ontario MP said.
Chen says that this is possible, and that the process of creating a new regulation to give the minister of health those powers would be easier than the legislative process, though it is not immediate and involves a consultative process with the public and stakeholders.
“That is a lot easier than going through Parliament,” Chen notes. “The bottom line is that, if government—whether it’s Health Canada or other parts of the government—so wishes, it does have some tools at its disposal to do the kind of thing that this draft order is fundamentally asking the government to do.”
Nevertheless, a former senior civil servant who spoke to Xtra on background cautioned against governments who are looking to interfere with arm’s-length agencies: They’re created to be arm’s length for a reason, most especially those where there is no actual federal involvement, like CBS. The Krever Report, which stemmed from Canada’s tainted blood scandal and saw to the creation of CBS and Héma-Quebec, specifically recommended that the Health Protection Branch of Health Canada “must at all times act at arm’s length from the organizations it regulates.”
CBS’ corporate members are the provincial ministers of health and exclude the federal minister, while Health Canada’s regulatory authority, separate from the minister, provides the oversight under the Food and Drug Act.
Hajdu’s office would not comment on the substance of the draft order, but stated that she has continued to encourage CBS and Héma-Quebec to change their deferral period and move to a behaviour-based model.
“Since 2016, we’ve been supporting CBS and Héma-Quebec to collect data so we can eliminate the ban,” says Hajdu’s spokesperson, Cole Davidson. “Recently, Health Canada received a submission from Canadian Blood Services to remove the deferral period from plasma donation, and we eagerly await a further submission from CBS and Héma-Quebec to eliminate the ban on blood donation.
“Minister Hajdu has asked blood operators about their timeline for submission and has offered to discuss any additional supports that may be required for CBS and Héma-Quebec to develop a behaviour-based donation model,” Davidson adds.