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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 crimi- nal law power. The act, she said, clearly has a criminal law purpose: "[U]phold- ing morality is the principal criminal law object of the Act. What is at stake is . . . Parliament's power to enact gen- eral norms for the whole of Canada to meet the pressing moral concerns raised by the techniques of assisted reproduc- tion." The fact that the statute creates a regulatory scheme did not, in her view, detract from this characterization. Said McLachlin: "The complexity of mod- ern problems often requires a nuanced scheme consisting of a mixture of abso- lute 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 posi- tion. They wrote: "The provisions of the AHR Act concerning controlled activi- ties, 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 hos- pitals, 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 judi- ciary'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 fed- eralism 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 empha- size that there is no factual basis whatso- ever 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 dif- ference, finding some provisions uncon- stitutional 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 "limit- less definition" to criminal law that jeop- ardized the constitutional balance. They also noted, "although the rules in the Criminal Code have long been under- stood 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, par- ticularly using the criminal law. What does this reference show? Complete confusion. Serious differences among Supreme Court judges on fun- damental 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 philipslayton.com. www.CANADIAN Lawyermag.com M A RCH 2011 17 ntitled-1 1 2/10/11 4:48:28 PM