Judge overcomes prejudice in one day

A Toronto AIDS activist says one day at Casey House is not enough education for a Barrie judge who made bizarre comments from the bench about the disease.

The Ontario Judicial Council (OJC) received several complaints about justice Jon-Jo Douglas of the Ontario Court of Justice in Barrie in November 2007 after he ordered an HIV-positive witness with Hepatitis C to wear a mask and said the virus could live in a dried state.

“The HIV virus will live in a dried state for year after year after year and only needs moisture to reactivate itself,” Douglas told the crown attorney according to a trial transcript. “I mean, he speaks within two feet of me with two serious infectious diseases. Either you mask your witness and/or move us to another courtroom or we do not proceed.”

In reply to the complainants the OJC 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.”

Richard Elliott, the executive director of the Canadian HIV/AIDS Legal Network (CHALN) — which filed a complaint with the OJC — says he has not had a chance to talk to Douglas about what he has learned.

“We’ve not spoken directly to Justice Douglas, so we’re going by what people have told us,” he says. “We’re told that he spent a considerable amount of time at Casey House.”

But Elliott says the public would have been been better served if Douglas’ education had been more open.

“I would say the investigation could be more transparent,” he says. “It would perhaps have been open to the Judicial Council to require him to express some public regret in the community where he sits and presides.

“There would have been some good if there had been a clear statement in a local newspaper, some sort of public statement against HIV discrimination and stigma.”

Elliott says at least the OJC was clear that Douglas’ conduct would not be tolerated.

“The important thing is there was a clear statement that this kind of conduct is not acceptable,” he says.

Douglas did not respond to Xtra’s request for an interview.

The OJC reply states that the chief justice of the Ontario Court is also considering mandatory education on HIV/AIDS for judges.

“The chief justice has asked the court’s Education Secretariat to consider and provide advice on whether education for judges would be appropriate on the issue of HIV/AIDS and what form that education might take,” writes Tara Dier, the executive legal officer of the Office of the Chief Justice, in an email. “The Secretariat consists of nine judges who oversee the education program of the Ontario Court of Justice. It will meet in February.”

Elliott says CHALN will follow up with the Secretariat. He says he’s optimistic about the possibility.

“I suspect that if the chief justice of the Ontario Court has requested it, the Education Secretariat will do it,” he says.

Elliott says CHALN would be happy to be part of the process.

“We’re certainly open to being involved in that way,” he says, “but it’s their program of education that they put together for judges.”

Elliott says CHALN would like to see a number of issues addressed.

“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.”