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Complaints Launched Against Ontario Judge Insisting HIV Positive Witness Wear Mask

By Garry J. Wise, Wise Law Office, Toronto

Several groups including the HIV & AIDS Legal Clinic and the HIV/AIDS Legal Network have launched complaints to the Ontario Judicial Counsel respecting the conduct of Justice Jon-Jo Douglas of the Ontario Court of Justice during a criminal hearing he presided over in Barrie in November 2007.

After finding out that the Crown's witness was positive for both HIV and hepatitis C, Justice Douglas insisted that the witness wear a mask while providing testimony on the stand, failing which he would refuse to continue the trial.

The Toronto Star Reports:

The judge refused to accept Crown counsel Karen McCleave's entreaties there was no need for such measures.

"The HIV virus will live in a dried state for year after year after year and only needs moisture to reactivate itself," Douglas insisted, according to a transcript of the Nov. 23 trial proceedings.

"This is outlandish," Bluma Brenner, an assistant professor at the McGill AIDS Clinic at McGill University in Montreal, said yesterday. A drop of human immunodeficiency virus drying on the floor "would be inactivated within 20 minutes," Brenner said in an interview.

But Douglas, a former Crown attorney appointed to the Ontario Court of Justice 10 years ago, was not prepared to continue the trial until he was satisfied "the safety and integrity of this courtroom" was protected.

"I mean, he speaks within two feet of me with two serious infectious diseases," Douglas told McCleave. "Either you mask your witness and/or move us to another courtroom or we do not proceed."

At one point, court staff returned after a recess wearing rubber gloves and placed documents touched by the witness in plastic bags.

The Crown Attorney applied for a mistrial, which was denied by Justice Douglas. The Crown Attorney then applied to the Superior Court of Justice to have Justice Douglas removed from the case, which was also denied for reasons that Justice Douglas was "within his jurisdiction".

Eventually, Justice Douglas voluntarily removed himself from the case. A new trial, with a new judge is set to begin later this month.

- Annie Noa Kenet, Toronto

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Full post as published by Wise Law Blog on February 01, 2008 (boomark / email).