The most widely read magazine for Canadian lawyers
Issue link: https://digital.canadianlawyermag.com/i/50827
OP I N IO N BY PHILIP SLAYTON TOP COURT TALES The court has let us down The decision in I n my last Top Court Tales, pub- lished 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 fes- tive cheer, we'd miss this decision. The reference is a classic division of powers case, albeit about a very mod- ern subject. The 2004 Assisted Human Reproduction Act purports to give the federal government power to regulate things like in vitro fertilization, clon- ing, and surrogacy. Several provinces, led by Quebec, argued that many of the act's provisions are unconstitutional because they deal with medical prac- tice 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 associ- ated with artificial human reproduc- tion? 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 is a horrible failure. 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 jus- tices Ian Binnie, Morris Fish, and Louise Charron. She found the entire act valid under the criminal law power. Justices 16 M A RCH 2011 www. CANADIAN Lawyermag.com Louis LeBel, Marie Deschamps, Rosalie Abella, and Marshall Rothstein found almost exactly the opposite; they con- sidered 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 meander- ing and repetitious judgment: "Every generation faces unique moral issues. R ef er enc e r e A ssist ed Human R epr oduction A ct todd JUlie