Subject: An Open Letter to the Federal Ministers of Justice and Health
Dear Minister Nicholson and Minister Aglukkaq,
On behalf of The Evangelical Fellowship of Canada (EFC) I write to reaffirm our position on the release of the Supreme Court of Canada’s decision in Attorney General of Canada vs. Attorney General of Quebec, Reference re: Assisted Human Reproduction on December 22, 2010.
The EFC has been a contributing stakeholder on the issue of Reproductive Technology in Canada for over 20 years. In a November 1990 submission to the Royal Commission on New Reproductive Technologies, the EFC presented an answer to the question of how far society should pursue reproductive technologies. The EFC has spoken on Bills C-13, C-47, and C-247, which pertain to the biotechnology sector. As an intervener in the Harvard Mouse case (Harvard College v. Canada, 2002 SCC 76), the EFC urged the court to proceed with caution when deciding whether to extend patent protection to higher life forms. There have also been several submissions to Health Canada throughout the years. In a 1996 submission addressing the prohibitions and framework proposed by Health Canada in its discussion paper New Reproductive and Genetic Technologies: Setting Boundaries, Enhancing Health, the EFC suggested priorities and issues to consider in the regulation of reproductive and genetic technologies. The EFC’s longstanding interest in this issue is motivated by biblical principles of respect for human life and dignity, care of the vulnerable, family integrity and religious freedom.
The court’s decision in the Reference case (2010 SCC 61) has impacted the care and treatment of human genetic materials and the raison d’être for the Assisted Human Reproduction Agency of Canada. The decision also outlined an appropriate and continuing role of the federal government in this area of social policy. The Government of Canada has before it the opportunity to show strong leadership in reaffirming the singular importance of a national standard for assisted human reproduction research and biotechnology. In fact, the Act in its original form was recognized widely as being one of the most comprehensive and useful pieces of legislation dealing with reproductive and genetic technologies in the world.
The Act was one of the most researched and consulted upon pieces of legislation in Canadian history. A Royal Commission received submissions from 1989 to 1993 before issuing a report recommending the type of legislation that was implemented. Parliament engaged in a consultation process with the provinces and other interested parties from 1993 to 1995 before drafting the legislation, which closely followed the recommendations of the Royal Commission. It subsequently became the subject of Parliamentary committee hearings before ultimately being passed into law in 2004. The Court’s decision does not adequately recognize that process and the Government now has the responsibility to, while recognizing the wisdom and cautions of the Court, exercise proper parliamentary authority in an area that calls for the collective wisdom of Parliament.
While the EFC was disappointed with the mixed decision that found select provisions of the Act unconstitutional, it was thankful that the Chief Justice (also writing for 3 other justices) gave guidance on a means for the federal government to recapture some of provisions which were struck down.
In its intervention, the EFC supported the position of the Attorney General of Canada. While the Attorney General argued that the Act fell under federal jurisdiction by means of Parliament’s criminal law power, the EFC argued the Act could have equally been a matter for federal jurisdiction by means of the federal government’s residual power relating to “peace, order and good government,” via the national interest doctrine.
The consequences of this decision are staggering. Areas of research that raise deep and significant ethical issues, including human embryonic research and the creation of animal-human hybrids, were to be regulated activities, and it was the Agency (in conjunction with Health Canada) that was to develop and implement the regulation of these and other practices listed in the ‘Controlled Activities’ section of the Act. The Court has created confusion and a virtual open season now exists in regard to certain aspects of human-animal genome experimentation and embryo importing, exporting, research and destruction as a result of the decision deeming sections 10 and 11 of the Act, along with much of section 40, unconstitutional.
Maintaining the integrity of the Act would have ensured a strong and consistent national standard across the country. Canadians are still waiting to see how each province and territory will respond to the Court’s decision. Will their province choose to regulate the ethically challenging practices which were struck out of the Act? While the province of Quebec has determined to regulate these areas, some provinces have shown no interest in addressing the issue.
In light of the resulting provincial checkerboard of regulation – and lack of regulation – in this area, the EFC encourages Parliament to take action to legislate absolute prohibitions, where appropriate, in order to strengthen the Act; and then to again engage in national consultation with the provinces and territories to ensure a consistent national standard for treatment of the assisted reproduction of human life.
Canada needs a national standard, one that is as robust as the Act, particularly as we face rapid advancements in reproductive technologies and the changing social understandings of family, both in Canada and globally.
Your government has a unique opportunity to ensure this standard, while communicating to the Canadian public that it will not shrink back from showing strong leadership that makes room for scientific and medical advances, and will also safeguard the dignity of human life.
The Chief Justice has clearly established that the federal government has the authority to legislate over these critical areas, and such measures would be welcomed by Canadians from a wide variety of religious and cultural backgrounds.
Sincerely,
Don Hutchinson
Vice-President, General Legal Counsel
Director, Centre for Faith and Public Life
The Evangelical Fellowship of Canada
The Evangelical Fellowship of Canada is the national association of evangelical Christians, gathered together for influence, impact and identity in ministry and public witness. Since 1964 the EFC has provided a national forum for Evangelicals and a constructive voice for biblical principles in life and society. In addition to 40 evangelical denominations, the EFC affiliates include ministry organizations, educational institutions and individual congregations, who uphold a common statement of faith. The EFC is an active participant in the World Evangelical Alliance.