The court has let us down

Philip Slayton
In my last Top Court Tales, published in January, I picked R. v. Sinclair as the worst Supreme Court of Canada decision of 2010. Sinclair was pretty bad, on the wrong side of good sense and civil liberty, but as it turns out I jumped the gun. Sinclair looks good next to the egregious Reference re Assisted Human Reproduction Act, released three days before Christmas and after I wrote the previous column. Perhaps the Supreme Court hoped that, overwhelmed by festive cheer, we’d miss this decision.
The reference is a classic division of powers case, albeit about a very modern subject. The 2004 Assisted Human Reproduction Act purports to give the federal government power to regulate things like in vitro fertilization, cloning, and surrogacy. Several provinces, led by Quebec, argued that many of the act’s provisions are unconstitutional because they deal with medical practice and research, fields that belong to the provinces. The federal government replied that the contentious provisions were ancillary to its criminal law power and therefore constitutional. As Chief Justice Beverley McLachlin put it in her reasons: “In pith and substance, what is this legislation about? Controlling and curtailing the negative impacts associated with artificial human reproduction? Or establishing salutary rules to govern the practice of medicine and research in this emerging field?”

The chief justice pursues consensus at the Supreme Court. She is known to favour unanimous judgments and professional civility. She wants the court to give clear and strong guidance to the legal profession and the country. Measured by these ambitions, Reference re Assisted Human Reproduction Act is a horrible failure. The court was bitterly divided. The legal message it sent was incoherent. And several of the judges wrote about their colleagues’ views in less than flattering terms.

McLachlin wrote for herself and justices Ian Binnie, Morris Fish, and Louise Charron. She found the entire act valid under the criminal law power. Justices Louis LeBel, Marie Deschamps, Rosalie Abella, and Marshall Rothstein found almost exactly the opposite; they considered the contentious provisions to be about health, a provincial matter, and therefore unconstitutional. Justice Tom Cromwell, in a dither, gave a little to each side, leaving everybody thoroughly confused. What a mess!

McLachlin began her meandering and repetitious judgment: “Every generation faces unique moral issues.
And historically, every generation has turned to the criminal law to address them.” She went on to say that the pith and substance of the Assisted Human Reproduction Act was not health but “the prohibition of negative practices associated with assisted reproduction,” and that this fell within the federal criminal law power. The act, she said, clearly has a criminal law purpose: “[U]pholding morality is the principal criminal law object of the Act. What is at stake is . . . Parliament’s power to enact general norms for the whole of Canada to meet the pressing moral concerns raised by the techniques of assisted reproduction.” The fact that the statute creates a regulatory scheme did not, in her view, detract from this characterization. Said McLachlin: “The complexity of modern problems often requires a nuanced scheme consisting of a mixture of absolute prohibitions, selective prohibitions based on regulations, and supporting administrative provisions. Such schemes . . . have repeatedly been upheld as valid criminal law. . . .”

In a joint and woolly judgment, with Abella and Rothstein agreeing, LeBel and Deschamps took a very different position. They wrote: “The provisions of the AHR Act concerning controlled activities, namely those involving assistance for human reproduction and related research activities, do not fall under the criminal law power, but belong to the jurisdiction of the provinces over hospitals, civil rights and local matters.” Controlled activities, they argued, are very different from prohibited activities, which are the stuff of criminal law.

The two camps took vigorous swipes at each other. The chief justice wrote of LeBel and Deschamps: “Their reasoning, with respect, substitutes a judicial view of what is good and what is bad for the wisdom of Parliament. . . . My colleagues break new ground in enlarging the judiciary’s role in assessing valid criminal law objectives. It is ground on which I respectfully decline to tread. . . . I cannot subscribe to the picture of Canadian federalism painted by my colleagues. . . .”
LeBel and Deschamps didn’t take this lying down. The chief justice had got it all wrong, they said. “We can only emphasize that there is no factual basis whatsoever for the Chief Justice’s interpretation. Her approach is contrary to the usual approach to constitutional analysis.”

It was left to Cromwell to try and clear up the mess, but he failed to do so. He began: “I respectfully disagree with the results proposed both by the Chief Justice and by Justices LeBel and Deschamps.” In a very brief judgment, he split the difference, finding some provisions unconstitutional because they “permit minute regulation of every aspect of research and clinical practice and do not simply prohibit negative practices,” but others falling within the traditional boundaries of the criminal law.

To my surprise, there has been little comment on the Reference’s startling morality subtext. The chief justice took it as given that Parliament is entitled to legislate morality using the criminal law. LeBel and Deschamps were concerned that McLachlin’s approach gave a “limitless definition” to criminal law that jeopardized the constitutional balance. They also noted, “although the rules in the Criminal Code have long been understood in light of the principles of Judeo-Christian morality, societal changes have freed them from those fetters.” Why has no one expressed serious concern about the chief justice’s view of the relationship between law and morality? I thought that in Canada, particularly since the Charter of Rights and Freedoms, we are reluctant to legislate morality, about which many legitimately disagree, particularly using the criminal law.

What does this reference show? Complete confusion. Serious differences among Supreme Court judges on fundamental constitutional law. Inability to offer legal guidance. Difficulty in being polite to each other in public. A highly questionable view of the relationship between law and morality.

The court has let us down badly.

Philip Slayton has been dean of a law school and senior partner of a major Canadian law firm. His latest book, Mighty Judgment: How the Supreme Court of Canada Runs Your Life, comes out in April. Visit him online at

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