Reference re Assisted Human Reproduction Act: An Argument for Chief Justice McLachlin’s Position

I. INTRODUCTION

The scope of the criminal law power under s. 91(27) of Canada’s constitution¹ is contentious. In Reference re Assisted Human Reproduction Act,² the Supreme Court of Canada split in a 4-4-1 decision when determining the scope of the federal government’s criminal law power. Since no single set of reasons was accepted by a majority of the Court, the divided decision has limited precedential value.³ Despite this, the AHRA Reference is the most recent case from the Supreme Court directly exploring the contours of the criminal law power.⁴ The most definitive reasons, one set written by Chief Justice McLachlin and the other by Justices Deschamps and LeBel, disagree on how the criminal law power should be defined. As the seventh anniversary of the decision approaches, that disagreement has not been clearly resolved. In this comment, I argue that McLachlin C.J.C.’s interpretation of s. 91(27) is preferable. McLachlin C.J.C. provides a stronger framework for understanding both the moral and health purposes of the criminal law power.

A valid exercise of the criminal law power must have three components: (1) a prohibition, (2) backed by a penalty, and (3) a valid criminal law purpose.⁵ Justices Deschamps and LeBel divide these three requirements into a formal component (a prohibition and a penalty) and a substantive component (a valid purpose).⁶ As Deschamps and LeBel JJ. observe, liberal interpretation of the formal component increases the importance of the substantive component.⁷ The majority of the Court, divided between Deschamps and LeBel JJ. and McLachlin C.J.C., focus primarily on the substantive component. Justice Cromwell’s decision, written only for himself, seems to contemplate the formal component when discussing the regulatory nature of the ultra vires provisions.⁸

Former Justice Rand of the Supreme Court listed valid criminal law purposes in Reference as to the Validity of Section 5(a) of the Dairy Industry Act.⁹ These purposes include public peace, order, security, health, and morality.¹⁰ The AHRA Reference focuses on the questions of health and morality.¹¹ 

II. HEALTH

Justices Deschamps and LeBel suggest that there must be “a real evil and a reasonable apprehension of harm” for an exercise of the criminal law power to be valid under the health heading.¹² By contrast, McLachlin C.J.C. suggests that a health objective is valid, provided that the law is “grounded in (1) human conduct (2) that has an injurious or undesirable effect (3) on the health of members of the public.”¹³ Chief Justice McLachlin further clarifies that Parliament can target conduct that elevates the risk of harm.¹⁴ The true difference between McLachlin C.J.C. and Deschamps and LeBel JJ. on the subject of health law is that Deschamps and LeBel JJ. add an additional requirement.¹⁵ Justices Deschamps and LeBel state that the targeted health evil “must be real and must relate to conduct or facts that can be identified and established.”¹⁶ Professor Ubaka Ogbogu refers to this additional requirement as the concrete basis and reasoned apprehension of harm threshold.¹⁷

There is a possibility that McLachlin C.J.C.’s interpretation of the criminal law power would allow the federal government to regulate all aspects of health.¹⁸ However, McLachlin C.J.C. states that “conduct with little or no threat of harm is unlikely to qualify as a ‘public health evil.’”¹⁹ Therefore, the federal government will not be able to regulate most aspects of healthcare since a health evil likely cannot be as amorphous as, for example, poor health care.

In addition, health care is an area of shared jurisdiction.²⁰ If the federal government is only able to legislate upon meeting a threshold of proof that a public health evil is addressed, this excludes the federal government from nearly all interaction with the health of its citizens. As pointed out in RJR-MacDonald Inc. v. Canada (Attorney General),²¹ the federal power to create criminal legislation with respect to health is broad.²²  “Public health evils” must be within the purview of the criminal law, but there is no need to meet a threshold of harm, as protecting public health might require action while “the jury is still out.”²³

III. MORALITY

Chief Justice McLachlin and Deschamps and LeBel JJ. also disagree on the subject of morality. Justices Deschamps and LeBel do not make a clear distinction between health purpose and moral purpose. Therefore, it seems that Deschamps and LeBel JJ. are focusing on the notion of a reasonable apprehension of harm or evil at this stage as well.²⁴ Justices Deschamps and LeBel, throughout their reasons, view the criminal power as targeting the inherently harmful or evil.²⁵ They seem to hold that valid criminal law purposes address evils and invalid purposes frustrate legitimate activities.²⁶ As mentioned above, the Deschamps and LeBel JJ. standard also focuses more directly on evidence that there is a real risk of harm present.

Chief Justice McLachlin states that the morality purpose exists when there is “a reasonable basis to expect that [the] legislation will address a moral concern of fundamental importance.”²⁷ She also notes that the law needs to “relat[e] to conduct that Parliament views as contrary to our central moral precepts…there is a consensus in society that the regulated activity engages a moral concern of fundamental importance.”²⁸ She states that evidence is not required for a law to have a valid moral purpose.²⁹

There are several problems with a requirement that an activity be evil to fall into the criminal sphere. First, as pointed out by Professor Barbara von Tigerstrom, there is not always a clear distinction between what is evil and what is legitimate.³⁰ For instance, marijuana is not widely considered to be evil. However, the majority in R. v. Malmo-Levine³¹ seems to accept that it is a valid exercise of the criminal power to prohibit its use under the heading of morality.³²

Even if courts could determine which activities fall on either side of the moral divide with an acceptable degree of certainty, it would still be a problematic way to define the criminal law. Governments are not above morality, prosecuting what is accepted as evil and tolerating what is legitimate. By criminalizing an activity, Parliament takes a moral stance. Parliament, as the institutional embodiment of the people’s will and the protector of our institutions, should be able to dictate that a particular action is immoral. The fact that Canada’s constitution protects citizens’ rights represents a moral position that is not shared around the world; remaining outside of the moral debate is not possible. For Canada to be based on a coherent set of values, the government must be able to make decrees about morally ambiguous actions. Certainly, many problematic actions that raise complex moral concerns, such as assisted human reproduction,³³ might not be considered evil.  However, a state based on values must be able to deem actions illegal and morally bankrupt, even if it is not clear to all observers that those actions are evil. If we define morality as a response to evil with the aim of addressing it, this removes the government’s power to make legislation on the basis that Parliament finds an action immoral. Colourable legislation that relies on publicly agreed evils is not a tolerable alternative to declarations that an action is immoral per se. For Parliament to take a moral stance on an issue it should not need to be evil or be evidentially linked to some sort of evil; courts must not strike down laws that engage in the moral dialectic.

Justices LeBel and Deschamps explicitly draw on the Canadian Charter of Rights and Freedoms³⁴ and associated analysis when suggesting that legislation must be supported by a “reasoned apprehension of harm” before it can be passed by Parliament under the criminal power.³⁵ Chief Justice McLachlin states that a division of powers analysis determines which level of government has jurisdiction, a  decision unrelated to the impact on rights granted under the Charter.³⁶ Furthermore, Professor Mark Carter warns that a Charter-based analysis could result in no government having jurisdiction.³⁷ As demonstrated by the 1993 Supreme Court case R. v. Morgentaler,³⁸ it is difficult, but not impossible, for provincial governments to legislate on moral bases.³⁹ Colourable provincial legislation, however, is not an acceptable substitute for the moral proclamation that can be found in the exercise of the criminal law power. For courts to define powers in a way that creates jurisdictional vacuums is to create genuine holes in the Canadian legal system. Prohibiting types of legislation as a result of the Charter is different than creating gaps through ss. 91 and 92 of the Constitution Act, 1867 since that was the purpose of the former but not of the latter.

Last, there is concern that such a broad test for morality will unbalance the division of powers in ss. 91 and 92. However, the requirement that the moral question must speak to “central moral precepts” with societal acceptance of the moral nature of the issue is not easily met.⁴⁰ Most regulatory legislation will not meet this threshold.

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^* BBA (University of Regina), JD Candidate (University of Saskatchewan). Any errors are my own. 

¹ Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5.

² 2010 SCC 61, [2010] 3 SCR 457 [AHRA Reference].

³ See Barbara von Tigerstrom, “Federal Health Legislation and the Assisted Human Reproduction Act Reference” (2011) 74:1 Sask L Rev 33 at 43.

⁴ More recent Supreme Court cases addressing the scope of the criminal law power have limited, contextual application. While Quebec (Attorney General) v. Canada (Attorney General) (2015 SCC 14, [2015] 1 SCR 693 [Quebec]) addressed the criminal law power, the majority in that case did not re-examine its extent.  Instead, the majority suggested that the matter had already been decided (ibid at paras 34-41).  Since the majority did not review the contours of the criminal law power, the decision does not help define the power itself. The odd circumstances of intergovernmental sabotage surrounding the Quebec case further reduce the precedential value of the reasons of Justices LeBel, Wagner, and Gascon when delineating the scope of the criminal power. In Canada (Attorney General) v. PHS Community Services Society (2011 SCC 44, [2011] 3 SCR 134), engagement with s. 91(27) was similarly brief and predicated on reasoning specific to the medical context of the case (ibid at paras 50-56).

⁵ Reference re Firearms Act (Can.), 2000 SCC 31 at para 27, [2000] 1 SCR 783; Ubaka Ogbogu, “The Assisted Human Reproduction Act Reference and the Thin Line Between Health and Crime” (2013) 22:1 Const Forum Const 93 at 93. But see Dwight Newman, “Changing Division of Powers Doctrine and the Emergent Principle of Subsidiarity” (2011) 74:1 Sask L Rev 21 at 25.

⁶ AHRA Reference, supra note 2 at para 234.

⁷ Ibid.

⁸ Ibid at paras 283-86.

⁹ (1948), [1949] SCR 1 at 50, [1949] 1 DLR 433, aff'd [1950] 4 DLR 689, [1951] AC 179 (PC).

¹⁰ Ibid.

¹¹ John D Whyte, “Federalism and Moral Regulation: A Comment on Reference Re Assisted Human Reproduction Act” (2011) 74:1 Sask L Rev 45 at 48.

¹² AHRA Reference, supra note 2 at para 240. See von Tigerstrom, supra note 3 at 37.

¹³ AHRA Reference, ibid at para 54.

¹⁴ Ibid at para 55.

¹⁵ Ogbogu, supra note 5 at 95.

¹⁶ AHRA Reference, supra note 2 at para 236.

¹⁷ Supra note 5 at 96.

¹⁸ See ibid at 95-96.

¹⁹ AHRA Reference, supra note 2 at para 56.

²⁰ RJR-MacDonald Inc. v Canada (Attorney General), [1995] 3 SCR 199 at para 32, 127 DLR (4th) 1, La Forest J, dissenting [RJR-MacDonald].

²¹ RJR-MacDonald, ibid.

²² Ibid at para 32.

²³ See AHRA Reference, supra note 2 at para 50. While McLachlin C.J.C. uses this language to discuss the morality heading, it is important that the federal government be able to legislate for health purposes while associated matters are still ongoing.

²⁴ See ibid at para 240.

²⁵ Ibid at paras 232-37, 251; von Tigerstrom, supra note 3 at 37.

²⁶ von Tigerstrom, ibid.

²⁷ AHRA Reference, supra note 2 at para 50.

²⁸ Ibid at para 51.

²⁹ Ibid at para 50.

³⁰ Supra note 3 at 37.

³¹ 2003 SCC 74, [2003] 3 SCR 571. 

³² Ibid at para 77. Admittedly, Justices Gonthier and Binnie appear to have blended the health justification with a moral one (ibid).

³³ See AHRA Reference, supra note 2 at para 251.

³⁴ Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

³⁵ AHRA Reference, supra note 2 at paras 236-37. See Mark Carter, “Federalism Analysis and the Charter” (2011) 74:1 Sask L Rev 5 at 10-11.

³⁶ AHRA Reference, ibid at para 44.

³⁷ Supra note 35 at 11. 

³⁸ [1993] 3 SCR 463, 107 DLR (4th) 537.

³⁹ Ibid at 489-90, 497-99, 504-505.

⁴⁰ AHRA Reference, supra note 2 at paras 50-51.