R. Douglas Elliott

Recent responses to AIDS show that many mistakenly believe that the AIDS crisis is over because of recent advances in protease inhibitors. These and other drugs against AIDS are largely unavailable in the developing world, where most of the 33.4 million people with HIV now live. New infections continue at a rate of 16,000 each day, a pace that underscores the continued need to discuss appropriate legal responses to AIDS. Professor Rhodes surveyed current epidemiology and declarations by UN agencies and governments, urging that responses to AIDS respect the human rights of persons with HIV. Professor Wojcik reviewed recent legislative and judicial developments, such as those that apply disability laws to persons with HIV. He also examined current human rights violations by various governments, including a recent marriage ban in India for persons with HIV. Mr. Douglas Elliott, a Canadian expert on AIDS and a partner at Elliott, Kim (Toronto), surveyed the Canadian epidemiology of AIDS and noted that early responses were hobbled by homophobia, racism and a lethally slow response by Canada's blood system. Many Canadians originally thought that AIDS was an American problem. Canada has since mobilized against AIDS through community organizations, federal and provincial health departments and municipal health units. Canadians have free health care, and most AIDS medications are available to all Canadians with HIV. AIDS in Canada is now a disease of the young, of injection drug users and of the First Nations. Most Canadian responses to AIDS have respected human rights, Mr. Elliott said. The Canadian Bar Association, the Canadian AIDS Society and the Canadian HIV/AIDS Legal Network are among those groups whose specialized reports and court challenges promoted legal responses that protected human rights. All provinces and the federal government prohibit discrimination based on certain grounds, including physical disability. There has been no debate in Canadian law about whether HIVantibody positivity is a "physical disability" under these laws—it is clearly recognized. Perhaps the most important case has been Thwaites v. Canada (Attorney General), in which a gay HIV-positive sailor established a discrimination claim against the Canadian Armed Forces, which had discharged him. Sexual orientation is also a prohibited ground of discrimination in the federal Human Rights Act, and in most provincial human rights codes. The Canadian Supreme Court in Egan concluded that sexual orientation is included within the "equal protection" clause of the Charter of Rights and Freedoms. In Vriend, another landmark ruling, the Court "read in" sexual orientation for Alberta's human rights law. The Court found that Alberta had violated the Charter by failing to extend protection to gays and lesbians.

The article provides a comparative analysis of recent legal developments with regard to LGBT rights in Canada and the United States of America. Both countries have made great progress towards better protection and full recognition of LGBT rights. Despite this progress, Canada appears to be ahead of the United States, as illustrated by two most recent court decisions (e.g. Halpern, legalizing same-sex marriage in Ontario, and Lawrence v. Texas, decriminalizing consensual sodomy in the United States).