OTTAWA - A ban on blood donations from men who have sex with men was upheld Thursday in a court decision branded discriminatory by critics who did, however, find a "glimmer of hope" in the ruling.

In Canada a man who has had sex with another man, even once, since 1977 is not eligible to donate.

In dismissing a constitutional challenge of that policy, Ontario Superior Court Justice Catherine Aitken ruled that Canadian Blood Services is not a government entity, so the Charter of Rights does not apply.

Aitken noted that the total ban on being blood donors can leave the gay and bisexual community feeling they're not fully integrated into society. Still, she said that the impact is not "in the same league" as a blood recipient being asked to accept lower safety standards.

Blood recipients have compromised health and rely on the donated blood to keep them alive or stave off pain or disabling conditions, and yet they have no control over the safety of the blood they receive, she said.

"They are asked to and must take a leap of faith that the blood or blood products they receive are safe," Aitken wrote.

"It is no wonder that blood recipients share an anxiety, at times elevated to fear, of the pathogens to which they may become exposed through the blood or blood products they receive."

There is a "high relative prevalence" of HIV and other blood-borne sexually transmitted pathogens among men who have sex with men, therefore the policy is based on fact and not prejudice or stereotypes, Aitken wrote.

Donating blood, she found, is not a right afforded by law.

Monique Doolittle-Romas, the executive director of the Canadian AIDS Society, called the ruling disappointing.

"It was also disturbing that the court saw this as a contest between safety and gay rights."

Aitken did however find that if the charter applied, Canadian Blood Services would not have justified that exclusion period of 33 years and growing.

"Evidence was lacking of the existence of real concerns that would make a deferral period of 33 years necessary in order to maintain the current level of safety," she wrote.

"Certainly there was no such evidence supporting the annual increase in the length of the deferral period."

Helen Kennedy of Egale Canada, a gay rights group, said that the bulk of the nearly 200-page judgment perpetuates discrimination against the gay community, but those few sentences from Aitken are a "glimmer of hope."

"So now we would look to Canadian Blood Services and say, 'There is no scientific justification, so change the length of time,"' she said.

"What people don't seem to be getting here is members of the gay community get blood as well ... So the safety of the blood supply is of paramount importance to all of us."

For blood recipients, faith in the blood system was shattered by the tainted blood crisis and it has taken a long time to rebuild, said David Page, executive director of the Canadian Hemophilia Society.

"A decision here in favour of a rights issue over safety would have been very, very badly received by recipient groups," Page said.

"It is the recipient of blood and blood products who bears 100 per cent of the risk and the donor actually bears none."

Canadian Blood Services said it is pleased the ruling recognized the validity of its screening processes.

"This and all our policies are based on sound scientific evidence, sound facts about risks and are intended to reduce or pre-empt the introduction of risks to recipients of blood products," said CEO Dr. Graham Sher.

Blood donation is a gift -- a privilege and not a right, Sher noted.

Canadian Blood Services had sued blood donor Kyle Freeman, who lied about having had sex with other men, and the court has now found him liable for $10,000 for negligent misrepresentation.

He launched a counterclaim under the charter, alleging the policy violates his constitutional right to equal treatment regardless of sexual orientation.

Other reasons people are permanently banned from donating blood include:

-- Being the sexual partner of someone who has tested positive for HIV or who has contracted AIDS since 1977.

-- Accepting money or drugs for sex since 1977.

-- Sharing needles or taking street drugs by needle, even once.

-- Being born in or living in the following countries since 1977: Cameroon, Central African Republic, Chad, Congo, Equatorial Guinea, Gabon, Niger and Nigeria.

-- Having had sexual contact with anyone who was born in or lived in the aforementioned countries since 1977.