The Federal Court of Canada has given the tainted-blood inquiry a green
light to proceed, and has allowed allegations of potential misconduct to
stand against 17 Red Cross and federal-government officials.
At the same time, however, Mr. Justice John Richard has forbidden the
Commission of Inquiry on the Blood System in Canada to pin blame on 47 other
individuals in its final report, including former health ministers and
senior bureaucrats. The court also ordered that all 64 people who received
notices under Section 13 of the Inquiries Act be given a "full opportunity
to be heard," meaning there will be more evidence.
Reaction to the 73-page judgment was mixed, although it was widely
interpreted as meaning that whether or not there is an appeal, Mr. Justice
Horace Krever can continue his work investigating the root causes of a
public-health disaster whose estimated toll will be 3,000 people dead of
AIDS or hepatitis C.
Douglas Lindores, secretary-general of the Canadian Red Cross Society, was
furious, saying the "witch-hunt has narrowed" to 14 Red Cross officials and
three "hapless bureaucrats." He dismissed the right to respond as "cold
comfort" to those who have been singled out.
But Donald Rennie, counsel for the federal government, which failed in its
bid to have the Section 13 notices quashed, said he was "absolutely
delighted. This judgment vindicates our court action. . . . It confirms that
the commission had no business naming most of the individuals who received
notices." (Of the 18 federal officials who received notices that they might
be singled out in the final report, only three can now be named in it.)
Both said it was too early to say whether the ruling would be challenged in
the Federal Court of Appeal.
Marlys Edwardh, senior counsel for the commission, said yesterday that she
is pleased with the decision. "The commissioner is anxious to resume his
work," she said. Paul Lamek, the lawyer who represented Judge Krever in
Federal Court, was out of the country and unavailable for comment.
Consumer groups welcomed the decision, but with reservations.
Janet Conners, an AIDS activist from Dartmouth, N.S., said she is "thrilled"
because the ruling validates the work of the inquiry. But she is worried
that the court action has so delayed publication of Judge Krever's report
that it will allow health ministers to pre-empt the commission's
recommendations.
Durhane Wong-Rieger, president of the Canadian Hemophilia Society, said the
decision paves the way for the final report to come quickly, but said she
fears an appeal will derail the process again.
"At this point, a challenge would be an extreme violation of the public
trust, a slap in the face to the victims of tainted blood and to Canadians
who want to see the blood system reformed," she said in an interview from
Dublin.
The deadline for the final report is Sept. 30, but the legal action probably
has caused the date to move back by at least six months, and potentially
more, depending on the scope of evidence in response to the Section 13
notices. Although Judge Richard rushed his ruling out in three weeks, an
appeal could take years.
Mr. Lindores gave a strong hint that the ruling probably would be challenged
when he said there are "fabulous grounds for appeal" because parts of the
judgment are "clearly illogical." He acknowledged that an appeal "could be
extremely damaging from a public-relations point of view," but insisted that
"we will not sell out our employees -- dedicated people who have dedicated
their careers to the blood program -- for short-term public-relations gain."
The Red Cross, the federal government, six provinces, five pharmaceutical
companies and 64 individuals who worked in the blood system took legal
action in Federal Court to prevent the inquiry from making any findings that
could serve as the basis for legal or criminal proceedings.
In his ruling, Judge Richard said there was no evidence that the recipients
of Section 13 notices would face criminal charges, and no proof that the
notice would affect on-going civil suits. He even dismissed the fear that
being singled out in the inquiry's final report could devastate reputations
and careers, calling the fear "pure speculation."
Further, he ruled that Judge Krever had acted within his mandate both in the
timing and content of the notices. "I cannot conclude that the applicants
have been or will be deprived of a fair hearing," Judge Richard wrote.
The court also dismissed as "without foundation" a demand that Judge
Krever's counsel be barred from participating in preparation of the final
report because they were biased.
However, Judge Richard did criticize the commission for the wording of the
Section 13 notices, saying it was unclear who was likely to be named in
"adverse findings of fact" in the inquiry's final report. That issue was
resolved in Federal Court when Judge Krever's lawyer produced a list of 17
potentially blameworthy officials.
Still, Judge Richard refused to quash the notices "since the notices were
intended to give these persons an opportunity to be heard" and therefore
serve as a legal protection.
"Justice Richard has given the papal blessing to Justice Krever's work,"
said Douglas Elliott, counsel for the Canadian AIDS Society.
Similarly, Ed Rathushny, a professor of law at the University of Ottawa,
called the decision a "complete vindication" of the commission process. He
said one of the most important elements of the Federal Court decision is
what it says about the importance of inquiries in Canadian society.
In his ruling, Judge Richard said inquiries must be allowed plenty of leeway
because of their "broad public purpose." He said their sweeping powers are
"justified by the extreme social importance of having some vehicle of the
government to explain the tragic event to the public and to advise the
government what solutions to adopt in the future to avoid similar
tragedies."
In this case, the court wrote, the tainted-blood inquiry was required to
investigate a "nation-wide public-health calamity of alarming proportions
[that] emerged in Canada in the early 1980s. It posed a threat of
contracting fatal illnesses to every resident of the country who might need
blood, a blood component or a blood product."
Between 1980 and 1985, about 1,200 hemophiliacs and transfusion recipients
contracted the AIDS virus from contaminated blood; between 1980 and 1990,
another 12,000 Canadians were infected with the hepatitis C virus.

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