workaround for XSLT 1.0 result tree fragment usage?

I know the real answer to my question is to move to
XSLT 2.0, but for the sake of workplace harmony I'm
making other efforts as well.

Using XSLT 1.0 and MSXML I've run into the limitation
of an improper use of a result tree fragment. I'm
creating a variable, "confirm_active_program" that
contains some number of <program> elements like so:

<program active="true"/>
<program active="false"/>

I then have a choose statement which contains a when
test:

<xsl:when
test="not($confirm_active_program/program[@active =
'true'])">...</xsl:when>

The only error I'm getting is that the expression
requires a node-set. Going back and reading on RTFs in
1.0 I realize this isn't going to work. Is there any
other way to accomplish my desired effect in 1.0?

Thanks,

Don


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