Time flies when we’re having fun, or so the saying goes.
It has been eighteen months since the Supreme Court of Canada heard the very significant case of Attorney General of Canada vs. Attorney General of Quebec, Reference re: Assisted Human Reproduction Act. This is apparently the longest period of time the SCC has taken to render a decision on a constitutional question. The case was sparked by a constitutional challenge to a federal law by the Government of Quebec. Quebec disputed the legitimacy of the federal government to enact legislation regulating assisted human reproduction and related genetic research with a consistent national standard, arguing that such regulation was a health matter, health being provincial jurisdiction under the Constitution Act, 1867.
The legislation in question, the Assisted Human Reproduction Act, aims to protect the health, safety, human rights and human dignity of Canadians by either prohibiting or regulating certain activities, such as human cloning, surrogacy, sex-selection, and in vitro fertilization. The Act seeks to create a uniform legislative framework across the country to address these issues and establishes criminal penalties for violations – criminal law being federal jurisdiction under the Constitution Act, 1867.
The Evangelical Fellowship of Canada jointly intervened with the Canadian Conference of Catholic Bishops in this important case. While the Government of Canada argued its criminal law jurisdiction, our intervention was based on arguments addressing the uniqueness of human life and the public interest jurisdiction of the federal government in having one Canadian standard in regard to scientific research and medical applications.
As EFC Vice-President and General Legal Counsel Don Hutchinson said in 2009, “We believe that human beings, created in the image of God, have inherent worth and dignity. Human life, therefore, must be valued, respected and protected for its uniqueness. In Canada, this can best be done by regulating the artificial creation of human life with standards debated and established at the federal level.”
This Act communicates our country’s position on the creation, alteration and destruction of “human reproductive material” as well as human and non-human life. It will also shape, and perhaps alter, relationships between citizens – parents, children, siblings and spouses. As the Royal Commission studying the issue found, the development and use of such new technology is of national concern,
…the issues raised by new reproductive technologies defy neat categorization as solely a health problem, solely a legal problem, or solely an ethical problem. The research development and use of new reproductive technologies involve national concerns that cut across social, ethical, legal, medical, economic and other considerations and institutions. This characteristic of new reproductive technologies generates the need for a distinct regulatory and organizational response – one capable of responding to and dealing with the issues in a comprehensive way.
Royal Commission on New Reproductive Technologies, Proceed with Care: Final Report of the Royal Commission on New Reproductive Technologies (Canada, 1993) at 15-16.
These are concerns of national public interest. In order to ensure consistency in law and in practice across Canada and to ensure the equal protection of all Canadians, a federal law is required. Anything else, in our opinion, would result in inconsistent, delayed – and potentially competitive – province-by-province, territory-by-territory regulation of these important matters across our beautiful country. I note “competitive” because some provinces might be prepared to “push the envelope” on the use of such technologies, forcing others to follow them or risk being found by the court to have created an inconsistent standard across the nation.
The Supreme Court heard arguments in this case on April 24, 2009 and then reserved its decision. We’ve been waiting ever since.
Will it prove to be a decision worth waiting for?
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For more information, review the EFC/CCCB Factum, our 2009 press release explaining our intervention, the Quebec Court of Appeal’s decision on the Reference, the Assisted Human Reproduction Act and the case docket information at the Supreme Court of Canada.