LexView 72.0 - Regulating a Brave New World

February 15, 2011


Reference re Assisted Human Reproduction Act
2010 S.C.C. 61
Supreme Court of Canada

Date of Decision: December 22, 2010
Date of Issue: February 15, 2011


In this issue:

  1. Key Terms
  2. Summary of Facts
  3. Significant Issues
  4. Decision and the Court's Reasons
  5. LexView Commentary
    1. (a) Morality and the Federal Criminal Law Power
    2. (b) Who Decides What is Moral?


Key Terms:

Federalism; section 91; section 92; Constitution Act, 1867; morality; security; health; criminal law power; medical regulation; provincial powers; federal powers


Summary of Facts:

In 1989, the federal government established the Baird Commission to study assisted human reproduction. In its report, it expressed concerns about certain medical and research practices and recommended legislation. The federal government then consulted with the provinces and knowledgeable groups and, in 2004, passed the Assisted Human Reproduction Act (the "Act").

The Act contained provisions:

(a) prohibiting human cloning, the commercialization of human reproduction and the use of in vitro embryos without consent (ss. 5-9);

(b) controlling the manipulation of human reproductive materials or in vitro embryos, transgenic engineering and reimbursement of the expenses of donors and surrogate mothers (ss. 10-13);

(c) setting up a system of information management (ss. 14-19);

(d) establishing the Assisted Human Reproduction Agency of Canada and giving it powers to administer the Act and authorizing it to issue licenses for certain assisted reproduction activities (ss. 20-59); and

(e) creating certain penalties (ss. 60-61), authorizing the creation of supporting regulations (ss. 65-67) and allowing the Governor in Council to exempt the operation of certain provisions if there are equivalent provincial laws in force (s. 68).

The Attorney General of Quebec accepted that parts of the Act were legitimately passed by the federal Parliament as criminal law provisions, but challenged much of the Act (ss. 8 to 19, 40 to 53, 60, 61 and 68) as outside of the constitutional jurisdiction of the federal government. It argued that these provisions were an attempt to regulate the whole sector of medical practice and research related to assisted reproduction.

On June 19, 2008, the Quebec Court of Appeal accepted the argument of the Attorney General of Quebec that the challenged sections were not valid criminal law (298 D.L.R. (4th) 712), holding that their real character was the regulation of medical practice and research, which is within the constitutional jurisdiction of the provinces. The Attorney General of Canada appealed to the Supreme Court of Canada.


Significant Issues:

Putting aside the technical issues of the division of powers between the federal and provincial governments under the Constitution Act, 1867, the significant questions addressed by this decision include:

(a) To what extent is morality and the moral judgment of legislators still a legitimate basis for the promulgation of criminal laws?

(b) Who will determine whether a criminal statute is founded on moral considerations?


Decision and the Court's Reasons:

The nine justices of the Supreme Court wrote three separate decisions, which revolved around the powers given to each of the federal and provincial levels of government pursuant to sections 91 and 92 of the Constitution Act, 1867.

The Justices were required to consider the dominant purpose, or "pith and substance", of the Act, both with respect to the nature of the whole legislative scheme and individual provisions. If the Act or some of its provisions are predominantly directed at valid criminal law powers, then they are validly passed under the federal government's constitutional powers. If they are, in pith and substance, directed at regulating medical practice and research, they intrude onto provincial power and are invalid.

Chief Justice McLachlin, joined by Justices Binnie, Fish and Charron, found that the legislation was a valid exercise of the federal government's constitutional jurisdiction over the criminal law. They would have upheld the Act in its entirety, deciding that the impact on medical research and practice was incidental to the Act's dominant criminal purpose. They found the administrative, organizational and enforcement to be acceptable as ancillary to the valid criminal purpose.

Chief Justice McLachlin looked at the Act as a whole and held that it was primarily directed at safeguarding against practices that may offend against fundamental moral precepts, values and rights or that may harm human health. The Act accomplishes the purpose of prohibiting reprehensible conduct by imposing penalties, supported with administrative provisions. While some provisions of the Act distinguish between the beneficial and the reprehensible, she held they do so only for the purpose of dealing with the latter. The key to her analysis was that "upholding morality" is the principal criminal law purpose of the Act.

Since constitutional principles allow one level of government to have a substantial impact on matters strictly outside its jurisdiction if the dominant effect of the law is within its powers, the Chief Justice would have upheld the Act in its entirety.

Justices LeBel and Deschamps wrote reasons in which Justices Abella and Rothstein concurred. They found that ss. 8 to 19, 40 to 53, 60, 61 and 68 exceeded the federal government's constitutional powers, except to the extent that the offence provisions in ss. 60 and 61 relate to uncontested portions of the Act.

These four Justices found that the Act has two purposes: (1) prohibition of reprehensible acts, which is a valid exercise of federal powers; and (2) regulation to promote beneficial practices, which is not a valid exercise of the criminal powers of the federal government. The regulations to promote beneficial practices, they found, were controlled activities as opposed to prohibited activities.

In other words, Justices LeBel and Deschamps held that the impugned provisions were intended to set up a national regulatory scheme to deal with generally beneficial research and medical activities. They held these provisions to be medical regulation, as opposed to criminal prohibitions. They were differentiated from ss. 5-7 (that were not challenged), which contained strict prohibitions against human cloning, the sale of in vitro embryos and the manipulation of human reproductive materials.

Their decision involves a narrower conception of morality than accepted by the Chief Justice. Justices LeBel and Deschamps specifically refer to the courts taking "society's attitude into account" in reviewing decisions of Parliament. They reference the consensus of society in determining whether the prohibition of certain conduct is based on legitimate moral distinctions. For example, they held that insemination and in vitro fertilization using genetic material from a man and woman who will become parents does not raise moral issues, in part because a "broad consensus exists".

Justice Cromwell wrote a short separate decision and acted as the "tie-breaker". He differed from Justices LeBel and Deschamps with respect to s. 8 (protecting control over the "products" of one's body), s. 9 (age of consent), s. 12 (commercialisation of reproductive functions) and s. 19 (an administrative section). As such, these provisions survived. On the other challenged provisions, he substantially agreed with Justices LeBel and Deschamps, the result being that the following provisions were struck out:

  • Section 10, which prohibits altering, manipulating, treating, obtaining, storing, transferring, destroying, importing or exporting human reproductive materials or in vitro embryos for certain purposes, except in accordance with regulations and under license;

  • Section 11, which prohibits a person from combining the human genome with the genomes of other species, unless permitted by the regulations and a license;

  • Section 13, which prohibits the performance of licensed activities in unlicensed premises;

  • Most of sections 14 to 18, 40-53, 60, 61 and 68, containing administrative and offence provisions, except to the extent that they relate to constitutionally valid provisions.


LexView Commentary:

This case is an interesting one from the perspective of the division of powers between the federal and provincial governments. The justices have a great deal to say with respect to the proper framework for power sharing between these two levels of government, as originally set out in the Constitution Act, 1867. However, this LexView will focus more narrowly on the implications of the portions of analysis dealing with the differing opinions of the Justices in relation to the federal criminal law power.

Many of the prohibitions in the legislation were upheld. Some were not. Many of the administrative and licensing provisions were struck out. This result is regrettable, not only because it removes national standards and regulations dealing with very complex, difficult and controversial subjects. More importantly, this is a case in which the end result may be less important than the principles apparently accepted by the majority of Justices; the future implementation of which may be profoundly bad.


Morality and the Federal Criminal Law Power

The discussion concerning the criminal law power is important and may have far-reaching implications on how Canada will be able to define itself based on moral principles. By more narrowly describing the legitimate federal government power over morality as a basis for the criminal law, Justices LeBel and Deschamps would undermine the capacity of our federal Parliament to legislate on many issues; some of which we may not even know are coming based on future technological developments.

The federal criminal law power is rooted in a constitutional desire for national behavioural standards concerning issues of public peace, order, security, health and morality (Dairy Industry Act, [1949] S.C.R. 1). The criminal laws against homicide are clearly rooted in issues of security, health and morality. So are those related to the illegal trade and use of narcotics.

As eloquently stated by the Chief Justice, each generation faces "unique moral issues" and has "turned to the criminal law to address them". There is little question that all major religious traditions have rites, prayers and beliefs concerning, and in most cases circumscribing, human reproductive and sexual conduct. These rules and beliefs are rooted in how we believe humans should behave for the good of our community and ourselves as individuals and families.

Until recently, human beings were conceived with only natural means and the application of moral rules was much clearer. With implantation techniques and the development of an ability to manipulate genetics (including the possibility of combining human and animal forms), all of science, religion, ethics and morality have had to face difficult questions never before seriously considered outside of science fiction.

The federal government was right to respond. Failing to do so could have made Canada a haven for medical experiments deemed unacceptable around the world. Since regulation of medical practices, such as heart transplants, is within provincial powers under the Constitution Act, 1867, the federal government had to rely on its criminal law power. This was appropriate since, as noted by the Chief Justice "'playing God' with genetic manipulation engages moral concerns that . . . risky cardiac bypass surgery does not."

The federal Parliament does have the right, and indeed the duty, to legislate on the basis of some fundamental conception of morality for the purposes of safeguarding values that are integral to our free and democratic society (R. v. Butler, [1992] 1 S.C.R. 452).

Under the Charter of Rights and Freedoms, criminal laws based on shared conceptions of morality have been subject to being struck out as unjustifiable infringements of fundamental individual liberties. In this regard, one thinks immediately of the "swingers' club" decision in R. v. Labaye (2005 S.C.C. 80—LexView 56.0) and the recent prostitution decision in Ontario, Bedford v. Canada (2010 ON.S.C. 4264—LexView 71.0). A similar Charter analysis was beyond the scope of this case, as it was concerned with whether the subject matter of the legislation was within the criminal power of the federal Parliament, at all.

The five prevailing justices too narrowly circumscribed the criminal law power. Morality continues to be a valid criminal law purpose. The question is not whether the moral position in various provisions of the legislation is legitimate, but whether it can be said to address a moral issue. The federal government's legislative object must be directed at morality or security issues in order to be grounded in the criminal power; but once the courts conclude that there is an important moral issue at stake, the criminal law power is legitimately invoked.

Because of the "tie-breaking" decision of Justice Cromwell, provisions were struck out that:

  • Prohibit altering, manipulating, treating, obtaining, storing, transferring, destroying, importing or exporting human reproductive material or in vitro embryos for certain purposes, unless done in accordance with regulations and under a license (section 10); and

  • Prohibit combining the human genome with the genomes of other species (transgenic engineering), unless permitted by regulations and a license (section 11)

The creation of human (or hybrid!) life, and processes by which it is manipulated, altered or destroyed have weighty moral implications. In fact, the creation, manipulation and destruction of human life are at the epicentre of morality-based criminal law. To conclude that such provisions are more narrowly focused and substantively addressed to regulation of medical research and practice is to undervalue the moral issues underlying the purpose of the law. More importantly, it undervalues the morality concerns with almost any law that deals with human life.

The impact of this decision is to remove certain aspects of the law from the purview of federal legislation. Once these aspects fall within exclusive, or dominant, provincial domain, there will inevitably be regulatory differences across the country; or possibly the absence of regulation on these topics.

For this reason, the assessment of whether federal laws have a moral foundation, and therefore fall within the federal criminal power, should not be narrowly viewed or defined. This is more than a petty issue of which level of government controls an area of regulatory competence. It is about the creation of a national moral identity and the basis upon which the federal government can create crimes to protect human life and regulate its manipulation. In this regard, the criminal law is the most appropriate vehicle for protecting against immoral, unethical or wrongful scientific endeavours.

It is increasingly popular to view the realms of science and religion or morality as competing or mutually exclusive. Issues of morality are not irrelevant to scientific endeavour and, in fact, science must be subject to morally based constraints. It is impermissible to allow scientific inquiry to tread where moral issues prohibit. This is an instinctive reaction of most right-thinking people in clear cases, such as medical experimentation that jeopardizes the life of the test-subject or which is conducted without informed consent.

The sphere of morality in Canada is too narrowly confined by concluding that prohibiting certain treatment of embryos and human reporductive material, or limiting transgenic engineering, are merely matters for medical regulation. Many moral guidelines are individually internal; meaning that we each limit our own actions based on personal standards. When our actions affect other persons or property or basic community moral standards, leaving each individual to self-define appropriate behaviour is not enough.

The federal government, through the criminal law power, has the ability to limit scientific endeavour based on such basic moral standards. Removing or too narrowly limiting this power deprives our country of a fundamental tool of defining and upholding national moral standards.


Who Decides What is Moral?

In a secularized society, moral teachings and beliefs are no longer seen to arise solely from religion, although those with religious beliefs cannot separate, and should not be expected to separate, their religious beliefs from their moral perspectives.

It is safe to say that we all wish to live in a moral society. Atheists and agnostics believe that morality need not be rooted in religion and so should welcome the existence of moral regulation in our law as evidence that morality is not inseparable from religious belief. Religious people will disagree with that formulation of moral thought, but equally desire a moral foundation in our law.

When Parliament legislates under the criminal law power, it often speaks to what is considered acceptable moral behaviour in Canada. The foundations of that morality are often rooted in traditional Judeo-Christian imperatives; but these need not be the case from a legal perspective.

Whatever their foundations, the moral rules enforced through our criminal laws emanate from the federal Parliament. As noted above, the enforceability of such laws will be subject to individual rights and freedoms guaranteed by our Charter. But aside from Charter issues, to what extent can Parliament's perspectives on morally based rules enjoy deference? Put another way, when Parliament passes rules to enforce its conception of moral behaviour, what is the role of the court? This is an important question because if the court concludes that a rule is not based on the suppression of an evil, it may not be a criminal law and therefore be outside of the powers of the federal Parliament.

Justices LeBel and Deschamps would delimit Parliament's criminal law power based in part on "society's attitude". The societal perspective would inform whether the law addresses a "real evil and a reasonable apprehension of harm". This formulation confuses the purpose of the law with the evidence to justify its existence. Subject to the limits of the Charter, Parliament legislates as it deems appropriate, provided that it is addressing an issue of moral imperative, from its perspective.

Undoubtedly, Justices LeBel and Deschamps were concerned that the federal government could encroach on provincial powers by disingenuously, or mistakenly, claiming that an issue was infused with moral concern when it was simply an attempt to regulate permissible behaviour. In that regard, they separated aspects of the Act on the basis of whether they prohibited reprehensible conduct or merely controlled beneficial practices.

As pointed out by the Chief Justice, this is a false dichotomy. Prohibiting bad conduct produces benefits. Requiring potentially helpful conduct to be done in only limited circumstances can be a prohibition on reprehensible acts. Prohibiting evil promotes good and vice versa.

The Act, as a legislative scheme, punishes practices that offend the morals of Canadians and controls activities that could threaten the health and safety of donors, recipients and even persons not yet born. It is a comprehensive system of legislation aimed at protecting Canadians and ought not to have been parsed in the manner undertaken by the prevailing justices.

Leaving doubt about the ambit of the federal Parliament's criminal law power opens the door for criminals to challenge laws based on perceptions of whether they truly benefit society. In this regard, the courts must defer to the moral judgment of Parliament, subject of course to Charter guarantees. The courts are not a clearing-house through which the moral judgment of democratically elected officials should be questioned. That is the purpose of elections.




This issue of LexView was researched and written by:
Kevin L. Boonstra, B.A. (Hons.), LL.B., of the British Columbia Bar.

LexView is a project brought to you by the Cardus Centre for Cultural Renewal, a not-for-profit agency. LexView is made possible through the donations of foundations, corporations and individuals. To inquire about making your contribution, please contact Cardus.

Copyright © 2011 Kevin L. Boonstra

LexView is an on-going review of judgments of Canadian courts that have an impact on the complex interrelationships between law, public policy, culture, moral reasoning and religious belief.

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