1995]
P HEALY – STATUTORY PROHIBITIONS
Statutory Prohibitions and the Regulation of
New Reproductive Technologies under Federal
Law in Canada
Patrick Healy*
This paper reviews recommendations made by the
Royal Commission on New Reproductive Technologies
concerning statutory prohibitions and offences relating
to reproduction and reproductive technologies. The rec-
ommendations are criticized on three grounds. First, the
Report offers no analysis of the legislative authority that
would enable Parliament to enact its recommendations.
Second, it offers no consideration of principles of crimi-
nal jurisprudence that would justify the prohibitions
proposed. Third, the Report fails to advance arguments
or rationales that would justify each of the specific rec-
ommendations concerning statutory prohibitions. In
short, the Report fails to make a case for implementation
of the Comnission’s recommendations with respect to
statutory prohibitions because the legal aspects of those
proposals are ill-developed or misconceived. A further
conclusion is that the only effective legislative response
to issues raised by reproductive technologies is con-
certed action, including regulatory measures, by Parlia-
ment and the provincial legislatures.
faites par
la Commission
Dans cet article, l’auteur passe en revue les re-
commandations
royale
d’enqute sur les nouvelles techniques de reproduction
quant aux infractions et interdictions statutaires relatives
L la reproduction et aux techniques de reproduction. Le
Rapport de la Commission est critiqud sous trois diffd-
rents aspects. Premirement, celui-ci ne proc~de ‘t au-
cune analyse de l’autorit6 1gislative qui permettrait au
Parlement de les adopter. Deuxi~mement, it ne traite pas
des principes issus de lajurisprudence en matire p6nale
et qui, pourtant, pourraient justifier les interdictions pro-
pos6es. Troisi~mement, it 6vite de mettre de t’avant des
arguments ou des raisonnements susceptibles de soute-
nir chacune des recommandations relatives aux inter-
dictions statutaires. Bref, ce Rapport ne soutient pas la
mise en place de ces recommandations puisque celles-ci
reposent sur une base juridique mal conque. En outre, it
n’existe qu’une seule rdponse 16gislative efficace A ces
questions soulevwes par les techniques de reproduction :
l’action concert6e, incluant les mesures rdglementaires,
du Parlement et des 16gislateurs provinciales.
Faculty of Law & Institute of Comparative Law, McGill University. This article was prepared with
the assistance of the Law Reform Division of the Department of Justice, Ottawa, but the views ex-
pressed herein are those of the author. Many thanks for helpful comments to Gwynne Basen, Alison
Harvison Young, Michael Hudson, Jeff Richstone, Glenn Rivard, Johanna Schalkwyk, Laura Sky,
Margo Siminovitch, Shonagh Stevenson, Louise Vandelac, Luanne Walton, and Hilary Williams.
Special thanks to Bernard Starkman for getting me into this and for kindly sharing his expertise. This
text, somewhat overdue, was delivered in June 1994.
McGill Law Journal 1995
Revue de droit de McGill
To be cited as: (1995) 40 McGill LJ. 905
Mode de rdf6rence: (1995) 40 R.D. McGill 905
MCGILL LAW JOURNAL/REVUE DE DROITDE MCGILL
[Vol. 40
Introduction
Synopsis
I. The General Position of the Royal Commission on New Reproductive Tech-
nologies
A. The “Ethic of Care”
B. Prohibition and Regulation
C. The Legal Basis for the Commission’s Recommendations
II. Prohibitions
A. The Commission’s Recommendations
On the Use of Prohibitions Generally
a.
b.
c.
The Views Expressed in the Report
Prohibitions: Criminal, Penal, and Administrative
A Continuum of Coercive Measures
i.
in
the Strict Sense
Criminal Prohibition
(Subsection 91(27))
Direct Prohibitions that are Part of a Regulatory
Scheme
Offences for Breach of Regulation
Administrative Sanctions for Non-compliance
ii.
iii.
iv.
Specific Prohibitions
a.
b.
c.
d.
e.
Embryo Research
Preconception Arrangements
Judicial Intervention in Pregnancy and Birth
Unwanted Medical Intervention and Criminal Assault
Other Possible Prohibitions
1.
2.
B. Options
Conclusion
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P HEALY- STATUTORY PROHIBITIONS
Introduction
The Report of the Royal Commission on Reproductive Technologies, Proceed with
Care, was published in 1993 and includes many recommendations for the reform of
federal law by the Parliament of Canada.’ The terms of reference for the Commission’s
inquiry were sweeping, as is apparent in this extract:
… inquire into and report on current and potential medical and scientific devel-
opments related to new reproductive technologies, considering in particular
their social, ethical, health, research, legal and economic implications and the
public interest, recommending what policies and safeguards should be applied. 2
The Commission makes several recommendations for the enactment of offences to
sanction specific types of scientific research and specific medical practices relating to
human reproduction. Another cluster of proposals recommends the enactment of legis-
lation for the regulation of new reproductive technologies by a national commission.
A metaphor with which the Commission repeatedly states its conclusions is that,
first, Parliament, through legislation, should draw a boundary between permissible
‘ Canada, Royal Commission on New Reproductive Technologies, Proceed with Care: Final Re-
port of the Royal Connission on New Reproductive Technologies (Ottawa: Minister of Government
Services Canada, 1993) [hereinafter Report]. The Commission was created on 25 October 1989 by
Order-in-Council (PC. 1989-2150) and it reported on 15 November 1993. References in this paper to
“the Commission” refer to the Royal Commission on New Reproductive Technologies unless other-
wise specified.
2 P.C. 1989-2150, reproduced in part in Report, ibid at 3. The Commission’s terms of reference
were varied in 1990 by P.C. 1990-1801. This latter Order-in-Council ostensibly modified the manner
in which the Commission would conduct its deliberations and make its report to the Government of
Canada. There was no variation of the terms of reference with respect to the substantive issues upon
which the Government sought the advice of the Commission but the changed conditions of operation
obviously had a significant effect on the Commission’s research and conclusions. The Report does
not reproduce in full the orders-in-council that constituted it. For critical discussion, see M. Eichler,
“Frankenstein Meets Kafka: The Royal Commission on New Reproductive Technologies” in G. Ba-
sen, M. Eichler & A. Lippman, eds., Misconceptions: The Social Construction of Choice and the New
Reproductive and Genetic Technologies, vol. 1 (Hull, Que.: Voyageur, 1993) 196.
The Royal Commission was not the first inquiry undertaken by a public body into issues relating
to aspects of human reproduction and scientific research. In 1985, the Ontario Law Reform Commis-
sion published its Report on Human Artificial Reproduction and Related Matters (Toronto: Ministry
of the Attorney General, 1985) [hereinafter O.L.R.C.]. Also of importance is the work of the Law Re-
form Commission of Canada, notably two working papers: Biomedical Experimentation Involving
Hunran Subjects (Working Paper 61) (Ottawa: Law Reform Commission of Canada, 1989)
[hereinafter Biomedical Experimentation] and Medically Assisted Procreation (Working Paper 65)
(Ottawa: Law Reform Commission of Canada, 1992) [hereinafter Medically Assisted Procreation].
These papers are important be’cause they cover much of the same ground covered by the Royal
Commission. The second of these papers is also especially valuable for the thoroughness of its re-
search, which relates not only to Canadian materials but also to materials drawn from around the
world. Many of the Commission’s recommendations have analogues in the Working Papers of the
Law Reform Commission of Canada.
MCGiLL LAW JOURNAL/REVUE DE DROITDE MCGILL
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conduct and impermissible conduct punishable by criminal sanction or other prohibi-
tion; and, second, that Parliament should provide for the regulation of activity within
the boundary of permissible and lawful conduct. The core of the Commission’s rec-
ommendations is summarized as follows:
We conclude that government, as the guardian of the public interest, must
act to put boundaries around the use of new reproductive technologies, and
must put in place a system to manage them within those boundaries, not just
for now, but, equally important, in an ongoing way. We therefore have two rec-
ommendations. First, we recommend legislation to prohibit, with criminal
sanctions, several aspects of new reproductive technologies, such as using em-
bryos in research related to cloning, animal/human hybrids, the fertilization of
eggs from female fetuses for implantation, the sale of eggs, sperm, zygotes, or
fetal tissues, and advertising for, paying for, or acting as an intermediary for
preconception (surrogacy) arrangements.
Second, we recommend that the federal goverment establish a regulatory
and licensing body –
a National Reproductive Technologies Commission
(NRTC) – with licensing required for the provision of new reproductive tech-
nologies to people. Only the federal government can set up such a system, and
it is important that the government fulfil its responsibility to protect citizens
and society by doing so. 3
While the broad contours of the recommendations are clear, many aspects require
clarification and further assessment before the Government can decide whether, or
how, to implement new initiatives through legislative action.
The importance of the Commission’s work is self-evident, as is the seriousness of
its conclusions and recommendations. The sense of urgency in the proposals is explicit:
After wide consultation with Canadians, ethical and social analysis of the
implications, and careful examination of the scientific evidence relating to the
current use of new reproductive technologies during the course of our mandate,
the Commission has concluded that Canada must respond decisively and com-
prehensively to control development and use of these technologies; clear
boundaries must be set and the technologies managed within these boundaries.
As the Commission’s detailed review of technologies and practices in Part Two
of our report demonstrates, this response is necessitated by the technologies’
profound ethical, social, health-related, and legal implications, both now and in
the future.
3 Report, ibid at xxxii; see also ibid. at 15, 22, 107, ch. 31. See ibid. at 14-15 for an interesting dis-
cussion of how the “boundaries” should be drawn and managed. One option considered by the
Commission was a moratorium on new reproductive technologies, but it was rejected for several rea-
sons, including these: some technologies are to be encouraged; it is difficult to distinguish clearly
between activities that should be repressed and those that should be encouraged; a moratorium in
Canada would not stop research from continuing elsewhere; and a moratorium in Canada might drive
researchers from Canada.
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The issues are not merely hypothetical; new reproductive technologies are
already’ the subject of individual and systemic decisions about reproductive
health, family formation, medical treatment, research, and health care resource
allocation. Moreover, the field is evolving rapidly in Canada and elsewhere. As
a society, we cannot tum back the clock. Nor can we live with the status quo,
allowing the technologies to develop without clear societal direction grounded
in collective values and priorities.
Canada must move forward into the new reality with a clear, coordinated
approach that permits us to resolve and manage the critical issues involved. To
allow Canada’s response to be delayed or fragmented by the existing web of
jurisdictional and administrative arrangements would, in the view of Commis-
sioners, be a mistake of enormous proportions. Failure to intervene construc-
tively and decisively would amount to an abdication of social responsibility
and a failure of political will.’
As a matter of law, of course, the constitutional arrangements of Canadian federalism
cannot be ignored. At the very least, the existing web of Canadian constitutional law
will determine whether the Government and the Parliament of Canada can act in rela-
tion to reproductive technologies.5
This paper examines the options available to the Government of Canada in formu-
lating legislation for prohibitions and for regulation of issues relating to reproductive
technologies, with emphasis on the former. Although the proposals for penal offences
and for regulation are distinct, they are advanced as two aspects of the initiatives that
the Government should take on reproductive technologies. Penal prohibitions and
regulation are not mutually exclusive options and could be complementary elements in
a coordinated legislative initiative relating to reproductive technologies.6 Thus, to
achieve a higher measure of coherence, it is desirable that these two aspects ultimately
form part of a single undertaking. Indeed, it is possible that legislative action on both
criminal offences and regulatory control could be undertaken in a single initiative, and
for this reason too, it is desirable that this paper proceed with both aspects in view.
4 lbid. at 10.
5 See Part I.C, below.
6 This is the approach taken in every jurisdiction of the Commonwealth that has enacted legislation
in relation to reproductive technologies (see L.S. Williams, “Legislation, Inquiries, and Guidelines on
Infertility Treatment and Surrogacy/Preconception Contracts: A Review of Policies in Seven Coun-
tries” in Research Studies of the Royal Commission on New Reproductive Technologies, Treatment
of Infertility.: Assisted Reproductive Technologies, vol. 9 (Ottawa: Minister of Supply and Services
Canada, 1993) 279; J.R. Guichon, “‘Surrogate Motherhood’: Legal and Ethical Analysis” in Research
Studies of the Royal Commission on New Reproductive Technologies, Legal and Ethical issues in
New Reproductive Technologies: Pregnancy and Parenthood, vol. 4 (Ottawa: Minister of Supply and
Services Canada, 1993) 457; B. Knoppers & E. Sloss, “Legislative Reforms in Reproductive Tech-
nology” (1986) 18 Ottawa L. Rev. 663).
MCGILL L4W JOURNAL/REVUE DE DROITDE MCGILL
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L The General Position of the Royal Commission on New Reproductive Tech-
nologies
A. The “Ethic of Care”
The premise from which the Commission’s recommendations were developed is
described as an “ethic of care”.7 It was apparent to the Commission from the moment
of its creation that the mandate confided to it was fraught with difficulty, controversy
and uncertainty! Like any policy-maker in such circumstances, the Commission had to
consider how to identify and express its own normative perspective on the issues it
confronted. On this preliminary matter the Commission reports that it rejected adher-
ence to any “overarching ethical theory”.9 Instead, it adopted “a broader ethical orien-
tation –
and, within that orientation, a set of guiding prin-
ciples to serve as a prism for moral deliberations.”‘ The “ethic of care”, as explained
by the Commission, eschews dogma and adopts a broad approach to principles that
will promote mutual flourishing.”
called the ethic of care –
The Commission did not coin the phrase “ethic of care”. This term has been cur-
rent since it was developed by Carol Gilligan in her book entitled In a Different Voice.”
The thrust of her claim cannot easily or fairly be reduced, nor can the subsequent de-
bate surrounding use of the phrase “ethic of care”. At its core, argued Gilligan, the
ethic of care is a point of view shared by women in which a sense of personal respon-
sibility and personal autonomy proceeds from an empathetic and altruistic sense of
concern and responsibility for others, and not from a selfish absorption in formal con-
structions of rules or rights. It has been debated whether Gilligan’s claim for an ethic of
care among women can be sustained in the terms stated by her,’ but the idea of an
ethic of care has been developed as a broader moral virtue and it is this wider notion
that animates the Report of the lCommission:
7 SeeReport, supra note 1, ch. 3. The “ethic of care” explained in the Report is adopted and adapted
from a research paper prepared for the Commission by Professor W. Kymlicka, “Approaches to the
Ethical Issues Raised by the Royal Commission’s Mandate” in Research Studies of the Royal Com-
mission on New Reproductive Technologies, New Reproductive Technologies: EthicalAspects, vol. 1
(Ottawa: Minister of Supply and Services Canada, 1993) 1. The Report distorts Kymlicka’s paper in
several respects and close comparison of the two texts is recommended. A signal distortion is that the
Commission ascribes to the “ethic of care” a broader application than that suggested by Kymlicka,
which results in a manipulation of the phrase by the Commission that does not coincide with usage of
it by others in political and ethical debate.
8 Report, ibid. at 49-5 1.
9 Ibid at 49.
to Ibid at 49-50.
1, Ibid at 52.
12C. Gilligan, hz a Different Voice: Psychological Theory and Women’s Development (Cambridge,
3For general discussion, see e.g. D.L. Rhode, Justice and Gender Sex Discrimination and the
Law (Cambridge, Mass.: Harvard University Press, 1989) at 308-10; W. Kymlicka, Contemporary
Political Philosophy (Oxford: Clarendon Press, 1990) at 262-86.
Mass.: Harvard University Press, 1982).
1995]
P HEALY – STATUTORY PROHIBITIONS
ITihe ethic of care holds, broadly speaking, that moral reasoning is not solely,
or even primarily, a matter of finding rules to arbitrate between conflicting in-
terests. Rather, moral wisdom and sensitivity consist, in the first instance, in fo-
cussing on how our interests are often interdependent. And moral reasoning in-
volves trying to find creative solutions that can remove or reduce conflict,
rather than simply subordinating one person’s interests to another. The priority,
therefore, is on helping human relationships to flourish by seeking to foster the
dignity of the individual and the welfare of the community.”4
The essence of this ethic of care is therefore the maximization of responsible concern
for others not only in personal decision-making but also in decision-making by public
authorities.
The Commission acknowledges that the ethic of care, when described only in gen-
eral terms, provides little prescriptive guidance for making practical decisions on spe-
cific issues;’5 its defining characteristics are so open that they can provide sufficient
justification for entirely contradictory views. The core of this ethic of care is described
as a “moral point of view”, but this perspective provides little more guidance than does
the ethic of care itself.16 To address this difficulty, the Commission identified eight
guiding principles that it would observe in the application of the ethic of care to the
determination of particular questions: individual autonomy; equality; respect for hu-
man life and dignity; protection of the vulnerable; non-commercialization of reproduc-
tion; appropriate use of resources; accountability; and balancing individual and collec-
tive interests. 7
The Commission acknowledges that the ethic of care cannot resolve all problems
to unanimous agreement. 8 The ethic of care implies the preference of some principles
and the subordination or exclusion of others. It cannot entail unanimous agreement on
the manner in which specific problems should be given specific solutions and, for this
reason, it ultimately fails to justify many choices made by the Commission among
various options. It is inherently ambiguous as to the definition, priority, and application
of its central principles.” In short, it is arguable that the adoption of eight guiding
principles in no way resolves the ambivalence of the ethic of care as a justification for
the decisions taken by the Commission. Indeed, the Report itself provides a striking
illustration of this ambiguity in Dr. Scorsone’s dissenting views.2 Dr. Scorsone objects
to some conclusions reached by the majority of Commissioners and specifically ob-
serves that, in her view, the ethic of care should have led the majority to a different re-
14Report, supra note 1 at 52.
15 Ibid.
6 Ibd at 50f, compare Kymlicka, supra note 7 at 16ff.
1
17 Report, ibid. at 52-59; compare Kymlicka, ibid at 18-27.
19 Report, ibid. at 59.
19 Ibi
20 Ibid. at 1053ff; see especially ibid. at 1098.
MCGILL LAW JOURNAL/REVUE DE DROITDE MCGILL
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sult. Thus, the dissenter and the majority equally claim fidelity to the guiding principles
and to the ethic of care.”
The ambiguity of the ethic of care is such that it does not readily explain many of
the recommendations made by the Commission. It also does not allow a satisfactory
explanation for the manner in which some subjects are treated in the recommendations.
The Commission says, for example, that postmenopausal women “should not be can-
didates” for embryo implantation, but it does not recommend that such activity be
made the subject of a criminal offence. It says that gametes and embryos should not
be objects of sale, but it does not say that the creation of embryos for the express pur-
pose of research should be prohibited.23 It recommends that some forms of commercial
participation in a surrogacy arrangement be criminalized, but it does not recommend
that all forms of commercial participation be criminalized. 4 These decisions, and oth-
ers, might be sound, but they are not easily explained by reference to the “ethic of
care”.
2
The ethic of care is problematic for another reason. The Commission embraces this
multi-faceted principle, but in the Report it evades, or does not fully confront, other is-
sues concerning reproductive technologies. The Commission does not, for example,
state a clear position with respect to eugenic practices or the eugenic implications of
reproductive technologies.25 A position can be inferred from the totality of the Com-
21This observation clearly does not imply that either the majority or the minority has the better view
of the “ethic of care”. It implies only that the “ethic of care” provides no basis on which to tell who
has the better of any argument.
22 Report, supra note 1 at 600.
23 Ibid at 643.
24 Ibid at 690.
2And yet this was the premise for an extensive paper prepared for the Commission by Dorothy
Wertz (D.C. Wertz, “Prenatal Diagnosis and Society” in New Reproductive Technologies: Ethical
Aspects, supra note 7, 191). Chapter 28 of the Report, which draws heavily on Wertz’s paper, disre-
gards the discussion of eugenics. Instead it refers euphemistically to “sex selection for non-medical
reasons.” See also Basen, Eichler & Lippman, supra note 2, Part II; Biomedical Experimentation, su-
pra note 2 at 46ff. The failure of the Commission to address issues of eugenics was also considered
and criticized by the National Action Committee on the Status of Women, Eugenics – The Hidden
Agenda (Working Paper #35) (Annual General Meeting: 10-13 June 1994). See also National Action
Committee on the Status of Women, NRT Committee Resolutions for the NAC Annual General
Meeting- June 1994, Resolution 2:
BE IT RESOLVED THAT NAC demand that the Federal and Provincial govemments
immediately impose a moratorium on the following:
– the opening of any new IVF clinics
– the introduction into clinical practice of any new reproductive technology or genetic
technology
– the expansion of existing technologies
until such time as democratically determined regulatory agencies have been put in
place.
BE IT FURTHER RESOLVED THAT NAC demand that the Medical Research
Council of Canada and any other funding agency, including those controlled by private
1995]
P. HEALY- STATUTORY PROHIBITIONS
.21
mission’s recommendations, but the Report lacks a thorough review of its proposals
and their rationales within a broad ethical discussion of eugenics. The distinction be-
tween negative and positive eugenics is increasingly difficult to draw in practical terms
and thus the omission of eugenics from the Commission’s discussion of the ethic of
care is somewhat startling. Equally startling is the absence of discussion concerning the
relevance of freedom of choice to the ethic of care or, more generally, to issues con-
ceming reproductive technologies. One notion of the freedom of choice leads to the
view that reproductive technologies facilitate personal choice and should therefore not
be regulated in the absence of a good reason for doing so.27 For some years, however,
this view of choice has been debated, not least because it would implicitly allow repro-
ductive technologies to be directed in large measure by market forces, which in turn
would imply substantial commercialization of reproductive technologies. 2
‘ In the
women’s movement, there has been considerable and growing uncertainty about the
nature, role and importance of choice in all aspects of reproductive technologies.
Given the exceptional importance that notions of choice have played in relation to
abortion and other issues, the Commission can fairly be criticized for not explaining
the place of choice in the ethic of care.
It is, however, no part of the present exercise to examine or criticize the ethic of
care adopted by the Commission, except to query generally how the ethic of care led
the Commission to its recommendations. It will suffice at this point to observe that ac-
ceptance of the ethic of care does not lead ineluctably to acceptance of the precise pro-
posals advanced by the Commission. Indeed, for the sake of argument, it can be said
industry, impose a moratorium on the funding of any research projects aimed at ex-
panding the clinical applications of reproductive and genetic technologies, until such
time as a democratically determined agencies [sic] have been put in place.
26 This issue was specifically addressed by several of the Commission’s consultants (see e.g. Wertz,
ibid.; Guichon, supra note 6; S.L. Martin, “An Overview of the Legal System in Canada” in Research
Studies of the Royal Commission on New Reproductive Technologies, Overview of Legal Issues in
New Reproductive Technologies, vol. 3 (Ottawa: Minister of Supply and Services Canada, 1993) 85;
S. Rodgers, “Juridical Interference with Gestation and Birth” in Legal and Ethical Issues in New Re-
productive Technologies: Pregnancy and Parenthood, supra note 6, 1; M. Martin et al., “The Limits
of Freedom of Contract: The Commercialization of Reproductive Materials and Services” in Over-
view of Legal Issues in New Reproductive Technologies, ibid, 401; M.M. Rachlis, “The Canadian
Health Care System” in Research Studies of the Royal Commission on New Reproductive Tech-
nologies, New Reproductive Technologies and the Health Care System: The Case for Evidence-Based
Medicine, vol. 11 (Ottawa: Minister of Supply and Services Canada, 1993) 1). Apart from papers
prepared for the Commission, there is a substantial and growing body of literature on the various
meanings of choice in the context of human reproduction, science and medical services.
27 This is the position espoused by John A. Robertson in a long series of writings. For a consoli-
dated statement of his views, see J.A. Robertson, Children of Choice: Freedom and the New Repro-
ductive Technologies (Princeton, NJ.: Princeton University Press, 1994).
28 There are stronger and weaker views in favour of the commercialization of reproductive tech-
nologies (see e.g. R.A. Posner, Sex and Reason (Cambridge, Mass.: Harvard University Press, 1992)
at 409-17). The Commission was advised to adopt a position of “constrained commercialization” by
Martin et al., supra note 26.
29For a recent discussion, see J.G. Raymond, Women as Wombs: Reproductive Technologies and
the Battle over Women’s Freedom (San Francisco: Harper, 1993).
MCGILL LAW JOURNAL/REVUE DE DROIT DE MCGILL
[Vol. 40
that the ethic of care could be invoked to justify the conclusion that many of the pro-
posals are unnecessary. The ethic of care might also be invoked to support conclusions
that contradict those of the Commission, not least because criminal or penal prohibi-
tions are blunt instruments that are often antithetical to anything that might be called
the ethic of care. This is not a sophomoric debating point. It is important to note that
the Commission’s conclusions proceed from principles and values that are matters of
choice and that the recommendations for legislative action are also choices or prefer-
ences among relative values, supported more or less by the Commission’s “moral point
of view” and its empirical findings. If the title of the Commission’s Report can be re-
lated to the “ethic of care”, it would appear that the Commission has concluded that the
“ethic of care” is best fulfilled by proceeding to the development and implementation
of reproductive technologies, subject to isolated prohibitions and a general licensing
scheme. Many will argue that this conclusion evinces a lack of concern for many peo-
ple, especially women, and affords too much opportunity for the commercialization of
genetic research and assisted conception. Indeed, the absence of specific controls upon
medical practices and scientific research implies tacit approval of them.3 The brunt of
these criticisms will be that the Commission betrays even its own ethic of care by
placing the exploitation of scientific opportunity before a higher responsibility, which
is to state a clear policy with respect to reproductive technologies and the nature of
human beings, the status of persons in society and in families, and the nature of per-
sons in time.’
B. Prohibition and Regulation
As previously noted, the Commission makes repeated reference to the need to
draw a boundary between permissible and impermissible conduct and to the need for
regulation of permissible conduct within that boundary. This figurative language tinc-
tures the Commission’s Report from beginning to end. The first point suggests that
there is, or should be, a forbidden realm of knowledge and experience upon which Ca-
nadians must not trespass. The second holds that, upon the familiar territory of per-
missible science and social practice, Canadians require close regulation in matters relat-
ing to reproductive technologies so as to secure the public interest. The recommenda-
tions that flow from these two general propositions presuppose great faith in the power
of the positive law to realize the desiderata of social policy. Indeed, it would appear
axiomatic in the Commission’s view of legal measures that the probability of realizing
policy objectives rises in direct proportion to the intensity of legal control.
The recommendations for prohibitions and regulation raise fundamental questions
about the exercise of authority by the state. Closer attention is given them below,”2 but,
by way of introduction, it is important here to identify two basic issues. One is that the
30 See e.g. Basen, Eiehler & Lippman, supra note 2, vol. 1, Part I; ibid., vol. 2, Parts IV, V.
31The “nature of persons in time” refers to the situation where embryos are frozen and can poten-
tially skip the generation in which they would naturally have been born. Another example of such
generation-skipping would be the use of eggs from aborted fetuses.
32See Parts HA. l.bff, below.
19951
R HEALY – STATUTORY PROHIBITIONS
Commission is unclear as to the nature of statutory prohibitions. In several instances it
suggests that conduct be prohibited “under threat of criminal sanction”.33 In others it
identifies conduct that should be “subject to prosecution”.M In yet other instances it
urges that specified forms of conduct just be “prohibited”35 or that specified activities
“not be permissible.. Thus, it is not clear why some forms of activity should be made
the object of criminal prohibition and others the object of a different type of statutory
prohibition. Nor is it clear what is meant by “criminal” sanction.
Second, with respect to regulation, the Report urges massive federal intervention in
relation to reproductive technologies but the modalities of regulation are not made
explicit. Such detail is perhaps unnecessary in a report because it concerns options for
implementation rather than broad outlines of policy. It is more conspicuous in this in-
stance, however, as there is little discussion of the scope for regulation of various as-
pects of reproductive technologies at the provincial and federal levels. As noted, sev-
eral of the Commission’s consultants made clear their opinion that many aspects of the
matters considered by the Commission were within provincial jurisdiction and it is
surprising that this conclusion did not affect more directly the Commission’s recom-
mendations for regulation. The lack of attention to this matter is also surprising be-
cause other public bodies have considered aspects of reproductive technologies and
noted that the division of responsibility between Parliament and the provincial legisla-
tures is an issue that is central to effective policy-making and implementation.’ s
C. The Legal Basis for the Commission’s Recommendations
Its two main recommendations –
to prohibit several aspects of new reproductive
technologies and to establish a regulatory and licensing body –
reflect the Commis-
sion’s conclusion that issues relating to new reproductive technologies have acquired a
“critical mass” that requires comprehensive and uniform treatment. Whether this con-
clusion is sound, of course, is primarily a political judgment that must be made by
elected representatives in Parliament and in the provincial (and territorial) legislatures.
X; See e.g. Recommendation 184, Report, supra note 1 at 637; Recommendation 192, ibid. at 643;
Recommendation 199, ibid. at 690.
See e.g. Recommendation 86, ibid at 475; Recommendation 131, ibid at 566; Recommendation
196, ibid. at 646; Recommendation 234, ibid at 833; Recommendation 291, ibid. at 1006-1007.
.5 Recommendation 199, supra note 33; Recommendation 265, Report, ibid at 907; Recommenda-
tion 284, ibid at 1000.
36 Recommendation 185, ibid at 638; Recommendation 241, ibid at 835; Recommendation 271,
ibid at 945; Recommendation 273, ibid at 964.
37 See e.g. Williams, supra note 6; Martin, supra note 26; Rodgers, supra note 26; Royal Com-
mission on New Reproductive Technologies, “Judicial Intervention in Reproductive Processes: A
Policy Profile” (Background Paper) by J.A. MacKenzie (1991).
38 See e.g. Medically Assisted Procreation, supra note 2; Law Reform Commission of
Saskatchewan, Tentative Proposals for a Human Artificial Insemination Act (Saskatoon: Law Reform
Commission of Saskatchewan, 1981); British Columbia, Royal Commission on Family and Chil-
dren’s Law, Ninth Report of the Royal Connission on Family and Children’s Law: Artificial Insemni-
nation (Vancouver. Royal Commission on Family and Children’s Law, 1975); O.L.R.C., supra note 2.
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Even assuming that there is political agreement with the Comiission, it is quite an-
other matter whether issues relating to reproductive technologies have in law a distinct-
iveness or coherence that will suffice for Parliament to act as the Commission pro-
poses. If they do not, the scope of Parliament’s competence in the field will not allow
sweeping intervention by the national government and comprehensive regulation of the
matter will have to be achieved by an imaginative exercise in cooperative federalism.
Much of what the Commission concludes about the appropriate legal response by
Parliament is fuelled by the urgency, if not emergency, that it perceives in these issues.
A sense of urgency alone will not allow’even Parliament to disregard the distribution of
legislative competence between the national government and the provinces, unless it
can further be said that a “matter” of sufficient coherence has emerged as a national
crisis. 9 This is a weak basis upon which to argue for the implementation of the Com-
mission’s recommendations.
The legal foundation for the Commission’s recommendations is not a major part of
the Report, although there is some attention to the issue in Chapter One and some
passing mention of it elsewhere. Given the recommendations of the Commission, it
could be expected that the Report would provide legal analysis on three points: the
constitutional authority for those recommendations,40 and, flowing from this, close ex-
planation of the scope and rationale for penal prohibitions and for comprehensive fed-
eral regulation of reproductive technologies.4′ If Parliament lacks the constitutional
authority to enact measures of the kind proposed by the Commission, the recommen-
dations themselves are unworkable. The central assertion of the Report on the consti-
tutional foundation for the Commission’s two main recommendations is the following:
Considering the overarching nature, profound importance, and fundamental
inter-relatedness of the issues involved, we consider that federal regulation of
new reproductive technologies –
under the national concern branch of the
peace, order, and good government power, as well as under the criminal law,
trade and commerce, spending, and other relevant federal constitutional powers
–
is clearly warranted.’
39 R. v. Crown Zellerbach Canada Ltd, [1988] 1 S.C.R. 401, 25 B.C.L.R. (2d) 145 [hereinafter
Crown Zellerbach]; see also PW. Hogg, Constitutional Law of Canada, 3d ed. (Toronto: Carswell,
1992) at 452-61.
40 The Commission appears to have obtained only one legal opinion on the constitutional authority
for federal action (see M. Jackman, “The Constitution and the Regulation of New Reproductive
Technologies” in Overview of Legal Issues in New Reproductive Technologies, supra note 26, 1).
41 Compare:
When introducing legal changes that directly affect people’s lives, decision makers are
expected to justify their choices. The legitimacy of what some see as an essentially
subjective determination may depend on how well the decision makers have outlined
the factors that led them to their conclusion (Martin, supra note 26 at 100).
42 Report, supra note 1 at 18; compare Medically Assisted Procreation, supra note 2 at 116.
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P HEALY- STATUTORY PROHIBITIONS
This assertion is not explained at length. Although it is not part of the present exercise
to examine the constitutional basis of the Commission’s recommendations, it is impor-
tant to note briefly the significance of the Commission’s claim and some objections to
its legal validity.
As presented by the Commission, the legal claim made above is that plenary
authority in the matter of reproductive technologies may be found in the power to
make laws for the peace, order, and good government of Canada. Secondary or sup-
pletive support may be found in other enumerated heads of power. The Report pro-
vides no argument of law to substantiate the legal foundation for any of the powers as-
serted except for a brief passage concerned with Parliament’s authority to act for the
peace, order, and good government of Canada. The core of that passage is as follows:
The Supreme Court has decided that the peace, order, and good govern-
ment power can be invoked in support of federal legislative action, provided
the matter Parliament seeks to regulate is of genuine national concern and pos-
sesses a degree of singleness, distinctiveness, and indivisibility that renders
federal regulation compatible with provincial control over matters within their
legislative jurisdiction.
The Supreme Court has held that provinces’ ability to deal with a matter
effectively through cooperative action, and the effect on extraprovincial inter-
ests of a province’s failure to regulate the intraprovincial aspects of the matter,
are of particular relevance, since it is the inter-relatedness of the intra- and ex-
traprovincial dimensions of the problem that creates the need for single or uni-
form legislative treatment. We are firmly of the belief that new reproductive
technologies, as defined in our mandate, meet the criteria established by the
Supreme Court, so that federal intervention under the peace, order, and good
government power is constitutionally justified.
New reproductive technologies possess a conceptual and practical integ-
rity and distinctiveness. Their fundamental object is human reproduction, with
all its distinct historical, social, and ethical implications. Viewed as a biological
function, reproduction is easily distinguishable from other matters of human
health. It has particular social significance, has particular ethical, political, and
economic dimensions, and creates particular legal relations and responsibilities.
Thus, although health issues are certainly involved, numerous other individual
and societal issues converge in reproductive technologies, necessitating a
broad, inclusive approach to dealing with them.”
Stripped to its essential assertions, this passage claims that federal jurisdiction is justi-
fied by the conceptual coherence of the subject matter, the harm that flows from the
absence of uniform law on these matters, and the need for urgent action.
The Supreme Court of Canada has shown considerable reluctance to accept claims
of jurisdiction based on the theory of national concern” and it cannot easily be argued
43 Report, ibid. at 19.
44 Compare Crown Zellerbach, supra note 39 at 401; see generally Hogg, supra note 39 at 441ff.
MCGILL LAW JOURNAL/REVUE DE DRO1T DE MCGILL
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that reproductive technologies have become a national concern that justifies legislation
for the peace, order, and good government of Canada. The argument that the many is-
sues associated with human reproduction are interrelated is simply a description of a
practical and scientific reality. That description does not lead to a conclusion in law that
“[n]ew reproductive technologies possess a conceptual and practical integrity and dis-
tinctiveness. 45 It certainly does not allow the assertion that “reproduction is easily dis-
tinguishable from other matters of human health. 46 Indeed, the observation that repro-
ductive technologies are so tightly related with many areas of provincial concem is
fully consistent with a conclusion that they have not emerged as a national concern in
the strict sense required by the courts. There is no apparent evidence that the provinces
have failed to act in relation to the matter or that they are unable to do so. Nor is there
evidence to support a conclusion that material harm will result if the provinces fail to
take uniform measures with respect to matters within their authority. There is no appar-
ent vacuum in Canadian public policy on reproductive technologies that only the na-
tional government can fill. Indeed, if it were arguable that reproductive technologies
have become a matter of national concern warranting a breach of Canadian federalism
in favour of uniform action by the national government, it would lead easily to the sur-
prising proposition that any matter of national concern is inconsistent with the basic
tenets of federalism. Canadian courts have resisted arguments of this kind, and it is
difficult indeed to envisage a successful legal and factual basis on which to argue that
reproductive technologies present a matter of “great and manifest necessity”47 that can-
not be addressed adequately by continued respect for the distribution of legislative
competence. In short, the desire for a coherent national policy on reproductive tech-
nologies is not a case in law for allowing Parliament to assume sweeping legislative re-
sponsibility.
From the Commission’s discussion of the constitutional foundation for its recom-
mendations, it seems clear that the authority for it is uncertain or weak and that the
conclusion of wide federal authority is overstated. The better view, it is submitted, can
be stated in the following propositions:
1. The primary grounds of legislative authority upon which Parliament could
act are criminal law and the spending power. The former provides author-
ity for direct prohibitions of specified conduct; the latter allows some
scope for regulatory control over matters otherwise provincial in nature, at
least to the extent that federal funds are contributed to policy initiatives.
There might be scope for action under Parliament’s authority in matters of
trade and commerce, intellectual property, and some other limited heads
of authority. There might also be some scope to act in relation to matters
of health that are of national concern, without relying on Parliament’s
power over matters of peace, order, and good government, provided that
45 Report, supra note 1 at 19; compare Jackman, supra note 40 at 6.
46 Report, ibid.; compare Jackman, ibid
4 7 Severn v. R. (1878), 2 S.C.R. 70 at 96, as quoted in Ontario Hydro v. Ontario (Labour Relations
Board), [1993] 3 S.C.R. 327 at 372, 107 D.L.R. (4th) 457.
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P. HEALY- STATUTORY PROHIBITIONS
there is no clear provincial jurisdiction over the matter.’
The claim that Parliament could act for the peace, order, and good gov-
ernment of Canada is the weakest claim under any of the doctrines that
have been developed by the courts. The reason for this is given by the
Commission itself: the matters touched by reproductive technologies are
so disparate that they affect a wide variety of federal and provincial pow-
ers and thus defy any finding that reproductive technologies have the sin-
gleness or coherence required for federal action.
2. The provinces have general authority to legislate in relation to matters of
health and other matters specifically assigned to their jurisdiction by sec-
tion 92 of the Constitution Act, 1867,49 including hospitals. Of special im-
portance is provincial jurisdiction over most aspects of family law and the
law of persons, the latter including status, filiation, adoption, and the like.
3. Reproductive technologies do not comprise a single matter over which
Parliament or the provinces can assert sole legislative jurisdiction. It is not
one matter but many matters. Thus comprehensive legislative regulation
of reproductive technologies in all of the aspects identified by the Com-
mission would require the collaboration of Parliament and the provincial
and territorial legislatures, each acting within their respective spheres of
authority and cooperating to achieve a coherent policy on the various
matters that comprise reproductive technologies.
The remainder of the discussion in this paper rests on the above three assumptions. In
Part II, attention is given to the Commission’s recommendations for the enactment of
statutory prohibitions.
H. Prohibitions
A. The Commission’s Recommendations
1.
On the Use of Prohibitions Generally
a.
The Views Expressed in the Report
In its “Overview of Recommendations”, the Commission summarizes the rationale
for its recommendations of criminal offences in the following terms:
48
Legislation dealing with health matters has been found within the provincial power
where the approach in the legislation is to an aspect of health, local in nature. On the
other hand, federal legislation in relation to “health” can be supported where the di-
mension of the problem is national rather than local in nature … or where the health
concern arises in the context of a public wrong and the response is a criminal prohibi-
tion (R. v. Schneider, [19821 2 S.C.R. 112 at 141, 139 D.L.R. (3d) 417, Estey J.
[references omitted]; see also ibid. at 114, Laskin CJ.C.).
49 (U.K.), 30 & 31 Vict., c. 3.
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We have judged that certain activities conflict so sharply with the values
espoused by Canadians and by this Commission, and are so potentially harmful
to the interests of individuals and of society, that they must be prohibited by the
federal government under threat of criminal sanction. These actions include
human zygote/embryo research related to ectogenesis, cloning, animal/human
hybrids, the transfer of zygotes to another species [184], or the maturation and
fertilization of eggs from human fetuses; the sale of human eggs, sperm, zy-
gotes, fetuses, and fetal tissues [192, 286, 287]; and advertising for or acting as
an intermediary to bring about a preconception arrangement, receiving pay-
ment or any financial or commercial benefit for acting as an intermediary, and
making payment for a preconception arrangement [199].
We also recommend that unwanted medical treatment and other interfer-
ences or threatened interferences with the physical autonomy of pregnant
women be recognized explicitly under the Criminal Code as criminal assault.
To ensure that medical treatment never be imposed upon a pregnant woman
against her wishes, we also recommend that the criminal law, or any other law,
never be used to confine or imprison a pregnant woman in the interests of her
fetus, and that the conduct of a pregnant woman in relation to her fetus not be
criminalized [273, 274].m
This explanation is amplified slightly in the text of the Report,5 ‘but the Commission’s
rationale for invoking the criminal lav remains broad and largely unqualified. Conflict
with fundamental values and the spectre of harm are two orthodox rationales that have
long been viewed as sufficient for the imposition of criminal liability over specified
forms of conduct. It would seem, therefore, that either of these rationales will be suffi-
cient justification for criminal sanction if the Commission concludes that a given prac-
tice imperils values cherished by it and by Canadians who participated in polls con-
ducted by the Commission or who made submissions directly to it*2 While these ra-
tionales might be sufficient for the enactment of criminal law in general terms, it does
not necessarily follow that either is sufficient for the enactment of the specific offences
proposed by the Commission. Of equal importance, moreover, given the crude blunt-
ness of the criminal law as an instrument of social control, is the principle of restraint.
This principle, which embodies values of elementary prudence, cautions that the crimi-
nal sanction be deployed only where necessary and effective. In this section of the pa-
per, therefore, relying on the Report itself and on other sources of jurisprudence, the
rationales for criminal sanction of the conduct identified by the Commission will be as-
sessed.
At no point does the Commission provide a considered exposition of the reasons
for which it recommends use of the criminal law as opposed to any other form of legal
50 Report, supra note 1 at 1022. The numbers in square brackets refer to the Commission’s recom-
mendations.
51 See especially ibid at 15, 108-109.
52Seee.g. ibid. at 11, 14, 15,47. The Commission undertook an extensive exercise in public polling
in an attempt to gauge the attitude of the public to issues relating to human reproduction (see ibid., ch.
2, for a general discussion of its methods in this respect; see also ibid. at 58-59).
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P HEALY – STATUTORY PROHIBITIONS
control over conduct. It typically says that criminal sanctions are necessary to deter, to
prevent harm, and to vindicate moral values. These expressions can be linked with all
of the major theories of criminal responsibility and of use of the criminal sanction, but
the Commission makes no attempt to do so, presumably on the premise that it is un-
necessary given its commitment to the ethic of care. Of particular significance, how-
ever, is the absence of any explanation by the Commission of what it means by
“criminal” sanctions. There are several means by which a specified type of activity can
be prohibited under the law. Prohibitions might be penal in nature but they are not nec-
essarily criminal. Thus, there is a distinction between criminal and regulatory sanc-
tions. Among regulatory sanctions there is a further distinction between a direct pro-
hibition and an indirect prohibition in the form of non-compliance with the terms of a
regulatory scheme. Moreover, there is a distinction between prohibitions created by
Parliament and prohibitions created by the provinces for the enforcement of valid pro-
vincial legislation. These distinctions, difficult as they are, are not considered by the
Commission. But for its discussion of Parliament’s authority to act for the peace, order,
and good government of Canada, the Commission presents its recommendations as if it
were in a unitary state such as the United Kingdom or a federal state such as Australia
in which almost all of the relevant legislative powers are vested in the member states.5
In Canadian law, there is no satisfactory definition of the normative justification
for the use of criminal sanctions. This means that the use of the criminal law is always
a point for debate and disagreement. The courts have sometimes resorted to a descrip-
tive definition of crime. Viscount Haldane said that the criminal law power should be
used “where the subject matter is one which by its, very nature belongs to the domain
of criminal jurisprudence.” 4 Lord Atkin later wrote for the Privy Council:
The criminal quality of an act cannot be discerned by intuition: nor can it be
discovered by reference to any standard but one: Is the act prohibited with pe-
nal consequences?.
Still later, Rand J. wrote in the Supreme Court of Canada that a statutory prohibition
could be characterized as criminal law if it serves “a public purpose which can support
it as being in relation to the criminal law.”56 He added that “[p]ublic peace, order, se-
curity, health, morality: these are the ordinary though not exclusive ends served by
[criminal] law.”57
53
In Australia, the national government possesses limited jurisdiction in criminal law and only lim-
ited grounds on which it could address matters relating to reproductive technologies. The issues are
addressed-by state legislation, which has raised some issues relating to inconsistent policies between
states.
Re Board of Conunerce Act (1921), [1922] 1 A.C. 191 at 198-99, 60 D.L.R. 513 (P.C.).
55Proprietary Articles Trade Association v. Canada (A.G.), [1931] A.C. 310 at 324, [1931] 2
D.L.R. 1 (P.C.).
56 Reference Re Validity of Section 5(a) of the Dairy Industry Act, R.S.C. 1927, Chapter 45 (1948),
[1949] S.C.R. 1 at 50, [1949] 1 D.L.R. 433, aff’d [1951] A.C. 179, [1950] 4 D.L.R. 689 (P.C.).
57 Ibid.
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Expressions such as these do not provide useful instruction on whether, or how, the
coercive force of criminal sanctions ought to be used as an instrument of social control.
Indeed, each of them is in some measure tautological or circular. Viscount Haldane re-
fers to a domain of criminal jurisprudence on the assumption that the boundaries and
the contours of that domain are so fixed and well known that they can be taken for
granted. Yet, hard cases only prove that the domain of criminal jurisprudence is not
fixed. Lord Atkin’s description of the criminal sanction is not the end of any inquiry
but only the beginning. It makes no distinction between murder or fraud and littering
and thus fails to provide any substantive guide to the distinction between crime and
other forms of statutory prohibition. Mr. Justice Rand’s approach is more helpful be-
cause it stipulates that a statutory prohibition must be justified by a “criminal purpose”
and it also identifies some objectives that might qualify as valid justifications for the
enactment of criminal prohibitions. However, his approach is not a definition of
“criminal law” or of “criminal purpose”, not least because many of the objectives that
might validly serve a “criminal purpose” can equally serve a purpose that is not crimi-
nal. In sum, the propositions quoted above provide no criteria by which to map the
domain of criminal jurisprudence or to enumerate the purposes of the criminal law.
They do not define criminal law but rather, at their highest, provide some guidance by
which the courts and the legislatures might recognize a matter of criminal law.
In general terms, the most common rationale for the use of the criminal law is the
protection of society from harm.58 The generality of these words obviously allows for
considerable divergence of interpretation, not least because there is no settled basis for
recognizing a harm that is sufficient to warrant criminal prohibition. Also, in very gen-
eral terms, the objective of protection from harm can be explained and justified with
reference to two broad rationales which are neither mutually exclusive nor necessarily
complementary. According to one, the criminal law serves an essential moral function
by identifying and vindicating fundamental social values. The dominant view of mur-
der and theft, for example, is that they sanction a violation of moral values such as the
value of life, the integrity of the person, honesty between persons, and the right to pri-
vacy in the enjoyment of property. The same rationale informs many other offences,
including offences such as blasphemy, bigamy, or libel. According to another view, the
protection of society from harm is essentially a function of utility; that is, repressive
sanction by the state may be justified if it will effectively protect society from dis-
cernible harm and, for this rationale to suffice, it is not necessary to act for the protec-
tion of specific moral values. This is true of most offences involving the use of vehi-
cles, aircraft, and vessels. It is true of most offences involving the possession of fire-
arms. It is true of many offences involving drugs. And it is certainly true for the tens of
thousands of regulatory offences that reinforce the administration of statutes that set
standards of behaviour in the market, in the use of technology, and the like.
The dichotomy between rationales of moral purpose and utility is not stark or even
clear. Many offences in the criminal law can be justified by both. Offences related to
58See Law Reform Commission of Canada, Our Criminal Law: Report (Ottawa: Information Can-
ada, 1976).
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P HEALY – STATUTORY PROHIBITIONS
impaired driving, for example, are intended to punish conduct that imperils the lives
and safety of other people, but the accent of those offences is typically utilitarian to the
extent that the repression of impaired driving is also intended to secure the safety of the
roads for all other users. While prostitution itself is not an offence under the Criminal
Code, 9 solicitation for the purpose of prostitution is an offence that can be justified al-
ternatively on moral grounds or on grounds of utility. There is no calculus in Canadian
law or policy-making by which to determine when the use of criminal sanctions is ap-
propriate. Both of the rationales identified above may be sufficient as a matter of politi-
cal judgment. Several observations of a general nature can be made, however, before
turning to a closer examination of the proposals made by the Commission and their ra-
tionales.
The use of the criminal law to protect fundamental values requires clear identifica-
tion of a value that is imperilled by a type of conduct and a consensus that repression is
a necessary means to prevent the erosion or destruction of that value by continuation of
the activity in question. The protection of moral values by the criminal law is typically,
though not necessarily, a reaction against conduct that actually threatens those values.
It is arguable that the creation of criminal liability for conduct that does not now actu-
ally threaten fundamental values is justifiable as a prophylactic measure for the protec-
tion of society but this, it is submitted, is a premature use of coercive power by the
state.
The primary justification for offences created for reasons of utility is deterrence.
Here too, the force of the law lacks legitimacy if it seeks to deter conduct that does not
actually occur. Thus, the criminal law should not be used for symbolic or hortatory
purposes to repress problems that are hypothetical or that pose no material threat of
harm to society at the moment. A variant of this theme is that criminal sanctions, or
other statutory prohibitions, should not be created if they are unlikely to be effective.
This means that prohibitions must be capable of investigation and prosecution.
Assuming a discernible threat of harm, another principle of cardinal importance is
that criminal sanctions not be used as a primary instrument of social control. The
criminal law should be used only when the magnitude of the threatened harm justifies
firm repression and when no other, and lesser, form of legal control can adequately
achieve the same result. This is the principle of restraint, which is not only a recog-
nized principle of criminal jurisprudence in Canada, but was clearly adopted as an ar-
ticle of policy by the federal government in 1982, as part of what was then known as
the Criminal Law Review.60 There is no indication that the Government of Canada,
through successive governments, has repudiated this principle.
59 R.S.C. 1985, c. C-46.
60 Canada, The Criminal Law in Canadian Society (Ottawa: Government of Canada, 1982) at 43-
46,52-54,59.
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b.
Prohibitions: Criminal, Penal, and Administrative
The exercise of coercive power by the state over the behaviour of natural and
moral persons takes many forms. The criminal law is the most severe and, in various
respects, the least effective. In the absence of a clear consensus that the conduct pro-
hibited is generally offensive to some identifiable norm of acceptable behaviour, and in
the absence of the means by which to implement a criminal prohibition by investiga-
tion and prosecution, the enactment of criminal offences lacks legitimacy, utility, or
both. Regulatory constraints, including regulatory prohibitions, can offer equally effec-
tive means of controlling undesirable conduct, not least because regulatory mecha-
nisms are more readily adaptable to the quick pace of developments in the field to be
regulated. However, regulatory constraint lacks the power of denunciation that flows
from criminal prohibition.
Before turning to the range of prohibitions in more detail, it will be useful to sketch
in a few broad strokes some elementary constraints in Canadian penal law, and for
convenience, three can be listed.
First, as already noted, the division of powers enforces a distinction between penal
law that is criminal stricto sensu and penal law that is not. Criminal law in the strict
sense exists by the exercise of Parliament’s power under subsection 91(27) of the
Constitution Act, 1867. By definition, therefore, the provincial legislature cannot val-
idly enact criminal law, but it does not follow that the provinces cannot enact penal of-
fences for the enforcement of valid provincial legislation.6′ Nor does subsection 91(27)
mean that any offence enacted by Parliament is enacted pursuant to the criminal law
power, because Parliament also has the authority to enforce valid federal legislation
with penal provisions that do not derive from the power over criminal law and proce-
dure.
Second, there is no coherent distinction in Canadian law between criminal and
regulatory offences.61 This is not to say that there is no such distinction. In R. v. Sault
Ste. Marie (City o6the Supreme Court of Canada identified three classes of liability
in Canadian penal law:
1. Offences in which mens rea, consisting of some positive state of mind
such as intent, knowledge, or recklessness, must be proved by the prose-
61Constitution Act, 1867, supra note 49, s. 92(15).
62This issue has benighted Canadian law for many years, and there is still no sign of progress to-
ward resolution of it. A strong illustration is found in R. v. Wholesale Travel Group hIc., [1991] 3
S.C.R. 154, 84 D.L.R. (4th) 161 [hereinafter Wholesale Travel]. For a useful survey of the literature
and jurisprudence, see K.R. Webb, “Regulatory Offences, The Mental Element and the Charter:
Rough Road Ahead” (1989) 21 Ottawa L. Rev. 419. For further discussion of the theoretical issues,
see P. Healy, “Regulatory Offences: The Case for a Purposive Test of Proportionality in Public Liabil-
ity” in Meredtith Memorial Lectures, Commercial Crime and Commercial Law (Cowansville, Que.:
Yvon Blais, 1990) 195.
63[1978] 2 S.C.R. 1299, 85 D.L.R. (3d) 161 [hereinafter Sault Ste. Marie cited to S.C.R.].
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P HEALY- STATUTORY PROHIBITIONS
cution either as an inference from the nature of the act committed, or by
additional evidence.
2. Offences in which there is no necessity for the prosecution to prove the
existence of mens rea; the doing of the prohibited act primafacie imports
the offence, leaving it open to the accused to avoid liability by proving
that he took all reasonable care. This involves consideration of what a rea-
sonable man would have done in the circumstances. The defence will be
available if the accused reasonably believed in a mistaken set of facts
which, if true, would render the act or omission innocent, or if he took all
reasonable steps to avoid the particular event. These offences may prop-
erly be called offences of strict liability….
3. Offences of absolute liability where it is not open to the accused to excul-
pate himself by showing that he was free of fault.
the first category only if such words as “wilfully”, “with
Offences which are criminal in the true sense fall in the first category. Public
welfare offences would prima facie be in the second category. They are not
subject to the presumption of full mens rea. An offence of this type would fall
in
intent”,
“knowingly”, or “intentionally” are contained in the statutory provision creat-
ing the offence. On the other hand, the principle that punishment should in
general not be inflicted on those without fault applies. Offences of absolute li-
ability would be those in respect of which the Legislature had made it clear that
guilt would follow proof merely of the proscribed act. The overall regulatory
pattern adopted by the Legislature, the subject matter of the legislation, the im-
portance of the penalty, and the precision of the language used will be primary
considerations in determining whether the offence falls into the third category.”
These are analytical classifications that abstractly describe the characteristics of differ-
ent offences. It follows from them that offences of strict and absolute liability are, pre-
sumptively, regulatory offences because they are not true crimes. But these analytical
distinctions do not coincide with the formal distinction between penal offences that are
criminal in the strict sense and offences that are not. Provinces can validly enact of-
fences that require a mental element (mens rea) and Parliament can enact offences by
relying upon the criminal law power or the implied power of enforcement under a head
of legislative authority that is expressly assigned to it by the Constitution Act, 1867.
The criminal law power can be used to create offences that are not true crimes and,
conversely, the power to enforce valid legislation by penal offences can be used to
64 Ibid. at 1325-26 [references omitted]. It is now arguable that the threefold model described by
Dickson J., and especially the distinction between true crimes and offences of strict liability, has been
obscured by recent developments. So too has the distinction between true crimes and regulatory of-
fences. In a series of cases, the Supreme Court of Canada has affirmed that objective standards of
fault for many serious crimes do not offend section 7 of the Canadian Charter of Rights and Free-
donis, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.
11 [hereinafter Charter]. Thus, it can no longer be said that true crimes necessarily require an element
of miens rea or awareness in the commission of the act. The climax of these recent cases was R. v.
Creighton, [1993] 3 S.C.R. 3, 105 D.L.R. (4th) 632. See also the discussion of the case in “Criminal
Reports Forum: Objective Fault in the Supreme Court” (1993) 23 C.R. (4th) 240; A.-M. Boisvert,
“Les exigences constitutionnelles en matire de faute p6nale: Un bilan critique” (1994) 73 Can. Bar
Rev. 161.
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create true crimes. Within the criminal law stricto sensu, there are offences of three
analytical types. In sum, despite a formal distinction between criminal and regulatory
offences that is recognized and enforced by the Canadian Constitution, there is no cor-
respondence between that distinction and the analytical classification of penal offences
as true crime, strict liability, or absolute liability. This normative incoherence has in-
hibited the development of Canadian penal law. There is as yet no distinct and general
body of administrative penal law in Canada.5 Offences that are non-criminal in nature
are typically investigated and prosecuted on a model of substantive and adjectival
principles that, with some slight variation, mimics the administration of criminal jus-
tice.
The third constraint is that any regime of penal liability, federal or provincial, be
consistent with the Charter. As part of the “supreme law of Canada”,o the Charter
governs how Parliament and the legislatures can make and administer penal law. The
interpretation of the Charter by Canadian courts has to date given little impetus to the
development of a distinct body of principles relating to regulatory liability. As the
courts have tended to assimilate regulatory enforcement to the administration of crimi-
nal law, many principles of criminal due process have been invoked for the enforce-
ment of regulatory law. This posture has given way recently to a more flexible ap-
proach in which the courts, especially the Supreme Court, have increasingly accepted
that the rigour of constitutional constraint can vary with the nature and purpose of a
legislative scheme.67 Thus, the particular context may allow for differentiated standards
of constitutional protection, and indeed, it might justify differentiated application of the
law to natural and moral persons.” This is the case both for substantive offences and
for adjectival law.
The principle of legality is of paramount significance in the definition of penal li-
ability. This principle was long recognized at common law in Canada but has recently
been recognized as a principle of fundamental justice under the Charter.9 The essence
of the principle of legality is that no definition of liability is valid unless the state gives
every person subject to its laws adequate notice of the offence and of its content. This
obligation is satisfied in part by the publication of laws in proper form. Of more im-
mediate importance, however, is the requirement that the terms of liability be defined
65 This remains so even though, in Sault Ste. Marie, ibid., Dickson J. expressly noted that regulatory
or public welfare offences are essentially instruments of administrative law, not of criminal law. It
would appear self-evident that it is inappropriate to adapt the criminal process for strictly administra-
tive purposes.
66 Charter, supra note 64, s. 52.
67 See e.g. Edmonton Journal v. Alberta (A.G.), [1989] 2 S.C.R. 1326, 64 D.L.R. (4th) 577;
Kindler v. Canada (A.G.), [1991] 2 S.C.R. 779, 84 D.L.R. (4th) 438; Pearlman v. Manitoba Law
Society (Judicial Conmittee), [1991] 2 S.C.R. 869, 84 D.L.R. (4th) 105; Wholesale Travel, supra
note 62; R. v. Gindreux, [1992] 1 S.C.R. 259, 88 D.L.R. (4th) 110.
68 See Reference Re Section 94(2) of the British Columbia Motor Vehicle Act, R,S.B.C. 1979, c. 288,
[1985] 2 S.C.R. 486,24 D.L.R. (4th) 536; Wholesale Travel, ibid.
69 Canada v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, 74 C.C.C. (3d) 289; R. v.
Heywood, [1994] 3 S.C.R. 761, 120 D.L.R. (4th) 348.
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P. HEALY- STATUTORY PROHIBITIONS
with sufficient clarity. In some areas of the law, this can lead to quite complex state-
ments of the law. For example, it might seem clear and simple enough to say that pos-
session of dangerous drugs should be unlawful, but this only begs for definition of the
drugs that Parliament considers dangerous. The Food and Drugs Act contains a series
of simple prohibitions, but the Act is complemented by a long and elaborate set of
schedules that define more closely the object of those prohibitions. It is a convenient
approach because it allows the ambit of liability to be adjusted by subordinate legisla-
tion without requiring amendment of the Act. With respect to reproductive technolo-
gies, this technique would also have great merit, but it must be emphasized that the
problems of definition in this area are deep and severe. These technologies can have
multiple purposes, some of which might be encouraged and some of which might be
suppressed. These technologies are constantly evolving and greater novelty in tech-
nique will be accompanied by novelty in application. The.challenge in any attempt to
create effective prohibitions is to identify with sufficient clarity what should be prohib-
ited and to do it in a manner that has some enduring value.
Against this background, a few general principles can be stated. It is clear in prin-
ciple that criminal and regulatory prohibitions reflect different types of coercive power
that may be exercised by the State; but in practice, especially at the federal level, the
distinction is clouded in obscurity. Criminal and regulatory prohibitions have different
legal sources in the sense that crime stricto sensu must be rooted in the criminal law
power and regulatory offences must necessarily be rooted in some other legislative
head. It is therefore a truism that, to the extent that it does not or cannot rely upon the
criminal law power, Parliament can only create statutory prohibitions by relying upon
the regulatory power to enforce valid federal legislation.
c.
A Continuum of Coercive Measures
Although the categories are not easily drawn, there exists a continuum of sanctions
imposed by the state that runs from criminal prohibitions in the strict sense through pe-
nal offences that are not strictly criminal and ends with informal administrative sanc-
tions.’ Some examples can be identified along this continuum.
Criminal Prohibition in the Strict Sense (Sub-
section 91(27))
This class of offences includes all those in the Criminal Code. It should be
noted that the Criminal Code contains offences that relate to non-compliance with
regulatory provisions at the provincial or at the federal level. 2 The Supreme Court
7 0 R.S.C. 1985, c. F-27.
71 In Sault Ste. Marie, supra note 63 at 1325-26, Dickson J. observed that any offence that is not
criminal in the strict sense is really administrative in nature and function.
72 Examples include firearms offences and gaming offences not exempted by provincial authoriza-
tion of a lottery. This is also true of abortion, which was upheld in 1975 and 1988 as a valid aspect of
criminal prohibition (see R. v. Morgentaler (1975), [1976] 1 S.C.R. 616, 53 D.L.R. (3d) 161
MCGILL LAW JOURNAL/REVUE DE DROITDE MCGILL
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of Canada has ruled that the criminal law power can support a regulatory scheme in
which an administrative agency or official exercises discretionary authority.’3 One
means by which the criminal law power can be used in a regulatory manner is to
provide for exceptions or dispensations from existing criminal prohibitions.74 There
is no indication that this is the only valid way in which the criminal law power can
be used in a regulatory manner. This leaves open the possibility that a legislative
scheme that has a conspicuous regulatory aspect might yet be criminal law accord-
ing to its dominant purpose.
It is importaht to note clearly that the Supreme Court ruled that provisions of
the Criminal Code allowing the licensing of lotteries by provincial authorities was
itself a “constitutionally permissive [sic] exercise of the criminal law power.”7 A
regulatory scheme that consists wholly of federal action is plainly valid, provided
that the legislation and any regulatory measures can be characterized as serving a
“criminal purpose”] 6 This proposition appears to be consistent with judicial deci-
sions, but has not been tested by a substantial measure of litigation.
Criminal offences are also scattered throughout other federal statutes, which is
to say that criminal offences in the strict sense can be found in statutes that other-
wise provide for regulatory control over designated activities. The Income Tax
Act,77 for example, is chiefly regulatory in nature but it includes a variety of of-
fences that are criminal law in the strict sense that they are based upon subsection
91(27) of the Constitution Act, 1867.
In sum, then, the form of criminal prohibitions can include regulatory aspects,
but, it would seem, the measures must be characterized by an underlying criminal
purpose. To the extent that the regulatory structure appears only to put conditions
on otherwise lawful conduct, it is improbable that the courts will characterize the
matter of the legislation as being in relation to a criminal purpose. It is not solely a
question of.the complexity of the regulatory scheme: it is also whether the domi-
nant purpose of the legislation is to define unlawful conduct or to define the condi-
tions under which lawful conduct may be pursued.
[hereinafter Morgentaler (1975) cited to S.C.R.]; R. v. Morgentaler, [1988] 1 S.C.R. 30, 44 D.L.R.
(4th) 385 [hereinafter Morgentaler (1988)1).
73 See R. v. Furtney, [1991] 3 S.C.R. 89, 66 C.C.C. (3d) 498 [hereinafter Furney]; R. v. Morgen-
taler, [1993] 3 S.C.R. 463, 85 C.C.C. (3d) 118.
74 Compare Morgentaler (1975), supra note 72 at 627, Laskin CJ.C. (dissenting, but on this point
there was no conflict with the majority).
75 Furtney, supra note 73 at 106.
76 Labatt Breweries of Canada Ltad v. Canada (A.G.) (1979), [1980] 1 S.C.R. 914, 9 B.L.R. 181; R.
v. Kripps Pharnacy Ltd., [1983] 2 S.C.R. 284,2 D.L.R. (4th) 577.
77R.S.C. 1952, c. 148.
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P HEALY- STATUTORY PROHIBITIONS
ii.
Direct Prohibitions that are Part of a Regulatory
Scheme
This class of offences typically resembles a criminal prohibition in the strict
sense because these offences comprise a prohibition punishable by a stated penalty
and enforceable in the ordinary courts. It is often a matter of controversy whether
such offences are criminal in the strict sense or regulatory, although in many in-
stances the distinction is academic or moot. The matter can be essential for several
reasons, however, not least being the constitutional jurisdiction to legislate over the
matter. At the federal level, these offences are distinguishable from crime in the
strict sense only by reference to express statutory language, the purpose, and con-
text of the relevant legislation. These offences derive their validity not from sub-
section 91(27) of the Constitution Act, 1867, but from the implied power of en-
forcement that inheres in the substantive heads of power allocated to Parliament.78
The purpose of these offences is to remedy non-compliance with the terms of a
regulatory scheme.
It is axiomatic that any federal offence that is not criminal in the strict sense
that it is based on subsection 91(27) of the Constitution Act, 1867 must be
grounded in some other basis of federal power. However, federal legislation in-
cludes a large number of offences that are not easily characterized as exclusively
federal or provincial matters.79
iii.
Offences for Breach of Regulation
Many regulatory schemes include omnibus offences that create liability for
non-compliance with a regulation. Regulatory offences of this kind are slightly
more indirect as statutory prohibitions because the substance of the offence is not
defined in the Act itself. Some offences of this kind are expressly exempted from
the ambit of ordinary prosecutions and included within a so-called “ticketing”
scheme whereby liability and penalty are assessed on a strictly administrative basis,
without recourse in the first instance to the ordinary courts.8
7 8Knox Contracting Ltd. v. Canada, [1990] 2 S.C.R. 338 at 358,73 D.L.R. (4th) 110; see also Gen-
eral Motors of Canada Ltd. v. City National Leasing Ltd., [1989] 1 S.C.R. 641, 58 D.L.R. (4th) 255.
A practical test of the distinction between criminal and regulatory liability is the scope for claims of
double jeopardy (see e.g. R. v. Wigglesworth, [1987] 2 S.C.R. 541, 37 C.C.C. (3d) 385; R. v. Shubley,
[1990] 1 S.C.R. 3,65 D.L.R. (4th) 193).
79 See e.g. Animal Pedigree Act, R.S.C. 1985 (4th Supp.), c. 8, s. 63; Textile Labelling Act, R.S.C.
1985, c. T-10; Canadian Environmental Protection Act, R.S.C. 1985 (4th Supp.), c. 16, ss. 111ff;
Meat hispection Act, R.S.C. 1985 (1st Supp.), c. 25, ss. 21ff.
See e.g. Explosives Act, R.S.C. 1985, c. E-17, s. 22, as am. by S.C. 1993, c. 32, s. 12.
81 See e.g. Canada Agricultural Products Act, R.S.C. 1985 (4th Supp.), c. 20, s. 34, as rep. by S.C.
1992, c. 47, s. 84. See more generally the Contraventions Act, S.C. 1992, c. 47. This Act provides a
broad scheme of regulatory enforcement but remains not in force.
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iv.
Administrative Sanctions for Non-compliance
Offences or sanctions of this type focus on non-compliance within a regulatory
scheme, but the administration of them can vary from formalized decision-making
by impartial adjudicators to informal procedures by decision-makers who adminis-
ter a regulatory scheme. These sanctions often do not correspond to offences in the
orthodox sense of a prohibition punishable by the imposition of a penalty. They in-
clude statutory powers of prohibition that are granted to particular decision-makers
for the enforcement of a regulatory scheme. Under the Aeronautics Act,82 for ex-
ample, there are broad powers of prohibition that may be exercised by statutory
decision-makers to ground aircraft that might be unsafe.
Once again, it must be emphasized that the distinction between criminal and regu-
latory prohibitions is often difficult to make, but that difficulty in no way compromises
the validity of the distinction itself. The criteria for distinguishing between them in-
clude the legal source of the prohibition, the legislative context in which it is found
(and the form of the legislation), the substantive content of the prohibition itself, the
penalty, and the adjectival law provided for its administration.
For the reasons given above, the conclusion of this section is that Parliament has
the option to use either or both of criminal and regulatory sanctions as a response to the
Report of the Commission. This option exists within a wider constitutional problem,
which is the extent of federal authority (regulatory or criminal) and the extent of pro-
vincial authority. The criminal law power is seemingly quite elastic, extending to the
exercise of some regulatory powers, provided that the dominant characteristic of the
governing legislation is a criminal purpose. The range of other statutory prohibitions is
broad, too, but their validity derives from the constitutional basis of the legislation of
which they are a part.
2.
Specific Prohibitions
In the discussion that follows, attention will be focused on the Commission’s rec-
ommendations for the use of criminal sanctions. With respect to each of these propos-
als, two questions must be asked. Is each recommendation justified by reference to a
principle of value or utility sufficient to warrant use of the criminal law? Is it clear that
the use of criminal sanctions is justified because no other form of regulation or control
can achieve the appropriate measure of protection? The Commission’s recommenda-
tions with respect to prohibitions fall broadly into two groups: the first concerned with
scientific research and preconception arrangements; and the second with protection of
the personal autonomy of pregnant women.
As noted previously, the Commission’s recommendations are not uniformly clear
and, for this reason, it is important to attempt a more precise identification of its pro-
posals for use of the criminal sanction. There are seven specific recommendations
82 R.S.C. 1985, c. A-2, s. 5.1, as added by R.S.C. 1985 (1st Supp.), c. 33, s. 1.
1995]
P HEALY – STATUTORY PROHIBITIONS
identified by the Commission that call for the enactment of criminal legislation. Some
of these are unclear on their own terms. The Report contains many recommendations
for the control or prohibition of specified activities without explicit reference to the use
of criminal sanctions, and it is thus necessary to consider whether the criminal law
would be appropriate for the implementation of some recommendations apart from the
seven expressly identified by the Commission itself. This point can be taken in two
ways. If the Commission is clear in making recommendations with respect to criminal
sanctions in seven of its proposals, are there other proposed prohibitions in the Report
that might be made the subject of criminal or penal sanction? This question will be ad-
dressed below.! The second approach is the reverse: given the recommendations re-
specting criminal law, is it possible that some of these matters might best be addressed
without reference to the criminal law, chiefly in deference to the principle of restraint?
The next sections consider specific prohibitions in two groups. Parts IIA.2.a
through ILA.2.d focus on recommendations by the Commission that refer explicitly to
the criminal law. Part IIA.2.e adverts to other matters identified in the Report that
might be the subject of statutory prohibition.
a.
Embryo Research
Chapter 22, “Embryo Research”, includes two recommendations for the enactment
of criminal sanctions.
184. Human zygote/embryo research related to ectogenesis, cloning, ani-
mal/human hybrids, and the transfer of zygotes to another species be
prohibited, under threat of criminal sanctionU
192. The sale of human eggs, sperm, or zygotes be prohibited, under threat of
criminal sanction.’s
The rationale for the first of these proposals is that the identified forms of research
“violate basic norms of respect for human life and dignity,” “would contravene the
Commission’s ethical principles,” and “would be contrary to the values of Canadi-
ans.”86
Recommendation 192 seeks to prohibit commercial interests in the exchange or
transfer of human eggs, sperm, or zygotes. The central rationale for this recommenda-
tion is that commercialization of reproductive materials and the commodification of
human life are no less offensive than is the commercialization of other forms of human
life that would not be tolerated under the law, such as selling children. It might be
asked, however, whether the type of conduct that the Commission seeks to suppress is
adequately described as sale. Presumably the Commission wishes to sanction all trans-
8 3 See Part ll.A.2.e, below.
84 Report, supra note 1 at 637.
85 Ibid. at 643.
86 Ibid. at 637.
MCGILL LAW JOURNAL/REVUE DE DROITDE MCGiLL
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actions that have as their direct object the use or transfer of reproductive materials for a
commercial gain. As a matter of policy, this scope might be too wide if it is intended to
include fees for sperm donation, for example. It might also be too narrow if it is in-
tended solely to prohibit the sale of gametes or zygotes for purposes of research rather
than for assisted conception. Once again, however, it must be asked whether it is most
appropriate to condemn such transactions by a direct prohibition, as opposed to the
more indirect prohibition of not allowing such activity to be licensed under a regula-
tory scheme.
Recommmendations 184 and 192, and indeed all of the prohibitions proposed in
Chapter 22 of the Report, raise several problems. One such problem concerns the man-
ner in which the Commission identifies the subject matter of the proposed prohibi-
tions’ s7 It is unclear and possibly misleading to describe these matters by reference only
to “embryo research”. The activities in both recommendations are important both in re-
search and, actually or potentially, in relation to assisted conception. To the extent that
they relate to assisted conception, they also suggest reasons for action that are not
squarely addressed by the Commission in Chapter 22, or elsewhere for that matter, in-
cluding the extent to which reproductive technologies will force policy-makers to draw
a distinction between permissible and impermissible eugenics. The formulation of
Recommendation 184, in particular, appears to presuppose a distinction between mat-
ters of research and matters related to medically assisted conception, yet the recom-
mendation does not make plain that the enumerated activities may be permissible in
other contexts where human gametes are used. A wider issue that deserves attention is
whether the Commission’s recommendations for prohibitions on embryo research are
not under-inclusive. Of particular importance in this regard is the production of human
embryos specifically for purposes of research. A significant body of opinion, and one
reflected in the legislation of several jurisdictions, holds that the creation of human
embryos for non-therapeutic purposes should not be permitted. Neither the Commis-
sion nor the Wamock Committee s takes this position but it certainly is one of the most
controversial aspects of new reproductive technologies and should be examined again
if statutory prohibitions are contemplated. 9
A further question is why the activities identified in these two recommendations
are targeted specifically for prohibition “under threat of criminal sanction” while other
activities described in Chapter 23 are recommended for some other form of prohibition
87 Compare J.B. Dossetor & J.L. Storch, “Roles for Ethics Committees in Relation to Guidelines for
New Reproductive Technologies: A Research Position Paper” in New Reproductive Technologies:
Ethical Aspects, supra note 7, 333 at 349: “There is a serious problem relevant to NRTs stemming
from the difficulty in clearly distinguishing that which is an innovative therapy from that which is
clinical research.”
88 Great Britain, Committee of Inquiry into Human Fertilisation and Embryology, Report of the
Committee of Inquiry into Human Fertilisation and Embryology (London: H.M.S.O., 1984).
89 For a review of this issue, see A. MeLaren, “Human Embyo Research: Past, Present, and Fu-
ture” in Research Studies of the Royal Commission on New Reproductive Technologies, Back-
ground and Current Practice of Fetal 7ssue and Embryo Research in Canada, vol. 15 (Ottawa:
Minister of Supply and Services Canada, 1993) 249.
1995]
P. HEALY- STATUTORY PROHIBITIONS
or, even more obliquely, are identified as activities that “should not be permitted.”9
This imprecision not only demonstrates the Commission’s failure to make clear its use
of terms such as “criminal” and “prohibition”, but it also fails to address whether the
appropriate source of prohibition in each instance is federal or provincial. This ques-
tion puts in issue precisely why or how the Commission concluded that one form of
sanction was more appropriate than another. Parliament could create criminal offences
to implement both Recommendations 184 and 192, but it is not clear that regulatory
prohibitions would fail to realize the same objectives.
Reliance upon enforcement by ordinary criminal offences would raise practical
problems. Investigation would lie chiefly with the police, which is to say that enforce-
ment would depend in the first place upon information of sufficient clarity to warrant
inquiries. The police would have to be told, for example, that Dr. White at Blackstone
Hospital is conducting research or performing medical procedures contrary to a speci-
fied criminal offence. Assuming that they have such information, the police would
likely require a search warrant to enter upon the premises of the hospital to ascertain
whether there is evidence of the offences alleged. Unfortunately the police in Canada
have comparatively little expertise in matters relating to genetic research or the finer
points of medical practice. The preparation of an information for presentation before a
justice will require careful attention, not least because the activities of a hospital are
likely to be varied and numerous. If the activities of Dr. White take placein a large
laboratory, the police will require skill in identifying the objects they seek. Assuming
that they execute a successful search and seizure, expert forensic analysis will be re-
quired to corroborate any other information the police might have acquired. If the evi-
dence suggests a basis on which to commence a prosecution, a prosecutor (or in some
places the police) will have to decide whom to charge and for what offence. The iden-
tification of the accused could be difficult indeed, as the net of liability could include
not only Dr. White but any natural or moral person participating in the alleged activi-
ties. It is entirely conceivable that Blackstone Hospital Inc. could be charged on the
principles of corporate criminal liability.9′ If charges are laid, and brought to trial, the
prosecutor would have to prove beyond reasonable doubt not only that the accused
committed the alleged acts, but did so with any element of fault required by the defini-
tion of the offence. A successful prosecution would, of course, demand the imposition
of sentence upon Dr. White and any other person convicted; however, due to the
judge’s discretion with respect to sentencing, it is unlikely that they would be impris-
oned.
This quick sketch is only a caricature of the hurdles that must be cleared in the in-
vestigation and prosecution of criminal offences. It is enough, however, to suggest that
the practical obstacles to criminal prosecution are sufficient to create an inhibition to
investigation and to the commencement of proceedings.
90 See supra note 36.
91 Some statutes provide expressly for the liability of corporations (see e.g. Infertilily (Medical
Procedures) Act, No. 10163 (1984) (Victoria), s. 28).
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The approaches taken in Recommendation 184 and Recommendation 192 can be
contrasted with those taken in other jurisdictions. In the United Kingdom, for example,
it is an offence punishable by imprisonment of ten years for anyone to implant in a
woman a live embryo other than a human embryo or any live gametes other than hu-
man gametes.92 It should be noted that this prohibition is narrower in scope than either
Recommendation 184 or Recommendation 192. This restriction on implantation is
virtually the only outright prohibition in the British legislation. Almost all other activi-
ties relating to reproductive technologies are subject to control by a regulatory body
that is authorized to issue licences relating to treatment, storage and research. The Hu-
man Fertilisation and Embryology Act 1990 imposes strict conditions on licences that
may be issued by specifically excluding some types of activity and specifically limiting
the issuance of licences to the pursuit of particular objectives.93 Thus, in the United
Kingdom, the principal means for achieving the aims stated by the Commission in
Recommendation 184 and Recommendation 192 is regulatory control. There is no in-
dication to date of any prosecutions having been undertaken under section 41 of the
British statute. The same is true of several jurisdictions in the Commonwealth, and
there is no indication in those states of any prosecutions.
In sum, there is no doubt that Parliament could enact crimes in response to Rec-
ommendation 184 and Recommendation 192. The value in doing so would lie chiefly
in a symbolic declaration of public policy with respect to human life and the non-
commercialization of human reproduction. As an empirical proposition, however, there
is little evidence that the matters addressed in these two recommendations now arise in
numbers sufficient to warrant criminal sanction, as opposed to other forms of control.
Indeed, there is every reason to believe that the values protected by these two recom-
mendations could be secured as effectively, or more, by regulatory control.
b.
Preconception Arrangements
In Chapter 23, “Preconception Arrangements”, the Commission makes one rec-
ommendation for the enactment of a criminal offence.
199. The federal government legislate to prohibit advertising for or acting as an
intermediary to bring about a preconception arrangement; and to prohibit
receiving payment or any other financial or commercial benefit for acting
as an intermediary, under threat of criminal sanction. It should also legis-
late to prohibit making payment for a preconception arrangement, under
threat of criminal sanction.’
92
Human Fertilisation and Embryology Act 1990 (U.K.), 1990, c. 37, s. 3(2), para. 4(1)(c).
93 See ibiaL, ss. 3, 12-15, Sch. 2..
94Report, supra note 1 at 690. Here too, the Commission expresses no view as to whether this mat-
ter should be the subject of outright criminal prohibition or of prohibition within a regulatory context.
It should be noted that the range of conduct prohibited under the British Act is wider than that pro-
posed by the Commission because the Commission defines activity that cannot be licensed and pro-
vides offences for unlicensed activity.
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P. HEALY – STATUTORY PROHIBITIONS
This proposal might seem another manifestation of the general principle that human
reproduction not be commercialized. The Commission amplifies this rationale with the
following observations:
Our first goal is to ensure that the status of this practice is uniform across
the country, to discourage people from travelling to parts of the country where
it is permitted. Evidence before the Commission shows that arrangements can
take place across provincial/territorial borders. Thus, prohibition only at the
provincial level would not be effective with respect to such arrangements.
Hence, we sought a comprehensive, uniform, and effective approach to pre-
conception arrangements across the country. This can be achieved by prohibit-
ing certain activities aimed at facilitating such arrangements for gain.9′
The Commission further adds that “[t]his proposed criminal prohibition will serve as
an effective deterrent to commercial preconception arrangements.”96
It is dubious, to say the least, that the criminal law should be invoked as a means
by which to ensure uniform treatment of a legal issue in all parts of Canada. The matter
of criminal prohibition must be criminal in “pith and substance’, and if it is not, it is a
colourable use of Parliament’s power. Moreover, it cannot reliably be claimed that en-
actment of an offence as suggested in this recommendation will be an “effective deter-
rent”. Even on the assumption that it would have some deterrent effect, it is not appar-
ent that the effect would derive solely from the invocation of criminal sanctions. It
might as effectively stem from inclusion within the terms of a federal regulatory
scheme or in provincial legislation.97
Recommendation 199 is not entirely clear in its scope or its rationale in that it
seeks the prohibition of conduct relating to participation as an intermediary in arrang-
ing surrogacy agreements, and conduct concerning payment for such agreements. It
does not seek the prohibition of surrogacy arrangements as such and thus, in principle,
the Commission would not seek to censure surrogacy arrangements. The Civil Code of
Qudbec does not prohibit surrogacy arrangements but it does make plain that any con-
tractual agreement for such an arrangement is unenforceable at law.9 This is not quite
the same as penal prohibition of any surrogacy arrangement for a financial considera-
tion, but it is nonetheless a clear declaration of legislative policy that the commerciali-
zation of surrogacy arrangements is contrary to the public interest. There is no mason
95Ibid.
96Ibid. There are, of course, variations on the theme of surrogacy. For present purposes, “surrogacy”
will be taken to mean any arrangement whereby a woman agrees to carry to term a fetus conceived
without sexual intercourse, using the gametes of at least one other person who will later assume cus-
tody of the child bor to her. For a survey of the law in other jurisdictions, see Guichon, supra note 6
at 597-618; Williams, supra note 6.
97 This was recommended to the Commission by Guichon, ibid. at 592.
98 See M. Ouellette, “The Civil Code of Quebec and New Reproductive Technologies” in Overview
of Legal Issues in New Reproductive Technologies, supra note 26, 625. This means that money not
paid cannot be claimed and that money paid cannot be recovered for breach of the agreement.
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to believe that the approach taken in the Civil Code of Qudbec is or would be ineffec-
tual in achieving the same objectives as the Commission identifies in Recommendation
199. And if the other provinces were to reach the same position as that taken by Que-
bec, whether through the determination of the courts, through individual legislation, or
through coordinated legislation of a model statute, there is no strong argument for the
use of criminal sanctions. The argument for criminal sanction must rest on the premise
that provincial law rendering arrangements for commercial surrogacy unenforceable is
not sufficient to deter or suppress such activity and, moreover, that there is some crimi-
nal purpose that justifies the creation of a criminal prohibition.
In 1992, the Law Reform Commission of Canada recommended that acting as a
paid intermediary in a surrogacy agreement be a criminal offence.99 As noted by the
Commission, the objective of this recommendation was to “stigmatize traffic in human
beings.”‘0 The proposal was not unanimous among the Commissioners, however. A
minority took the view that the recommendation was either under-inclusive or unnec-
essary. It would be under-inclusive, they said, in the sense that it should not be limited
only to paid intermediaries but, in keeping with its stated objective, extended to anyone
who participates in a surrogacy arrangement in any material way. In what appears to be
a stronger objection, the minority expressed the view that the recommendation was un-
necessary because there was sufficient deterrent effect in the unenforceability of surro-
gacy contracts. To ensure repression of such arrangements, the minority added that the
unenforceability of arrangements “could be supplemented by regulatory offences car-
rying substantial fines or other penalties.”‘0′ Such offences, it should be noted, could be
enacted by provincial govemments.
The difference of opinion within the Law Reform Commission replicates a divi-
sion found in many other jurisdictions. There is a consensus that commercial surrogacy
arrangements be repressed, but there are disputes as to whether the law should repress
all forms of participation in a surrogacy arrangement and as to which legal means are
most appropriate for the stated objective.’ The position taken by the Commission and
by a majority of the Law Reform Commission is obviously problematic for the reasons
given by the minority of the Law Reform Commission. If surrogacy arrangements rep-
resent so profound an affront to fundamental values, it cannot be said that the affront
lies only in the activities of paid intermediaries. Thus the options now before the Gov-
ernment of Canada would seem to be one of two. One would be to enact criminal pro-
hibitions on all forms of paid or unpaid participation in a surrogacy arrangement, in-
cluding not only intermediaries but immediate participants, while the other would be to
enact no prohibitions and to allow the matter to be dealt with under provincial law. The
accent in these options is obviously different. In the first option, the premise is the in-
tegrity of the human person and its relations to other persons, whereas in the other, the
99 Medically Assisted Procreation, supra note 2 at 138.
100IbiL at 132-39.
101 Ibid. at 139.
102 See the review by the Law Reform Commission of Canada in Medically Assisted Procreation,
supra note 2 at 65-68, 132-39; Williams, supra note 6; Guichon, supra note 6.
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P1 HEALY – STATUTORY PROHIBITIONS
emphasis is placed on discouragement of the commercialization of human reproduc-
tion.
Two specific reasons militate against the enactment of legislation to create an of-
fence of the kind proposed in Recommendation 199. First, there is no evidence in Can-
ada that commercial surrogacy arrangements have been made, or are being made, in
numbers significant enough to warrant immediate enactment of criminal sanctions to
prevent further social harm.’0 3 Second, while repressing the commercialization of hu-
man reproduction is unimpeachable as a value, there is no reason why this objective
cannot effectively be met under laws within the province. As noted above, the desire
for uniform legislative treatment of this issue is not a sufficient basis upon which to
ground federal authority over the matter.
c.
Judicial Intervention in Pregnancy and Birth
In Chapter 30, “Judicial Intervention in Pregnancy and Birth”, there are two rec-
ommendations that bear upon the use of the criminal law.
273. Judicial intervention in pregnancy and birth not be permissible. Specifi-
cally, the Commission recommends that
(a) medical treatment never be imposed upon a pregnant woman against
(b) the criminal law, or any other law, never be used to confine or im-
prison a pregnant woman in the interests of her fetus;
(c) the conduct of a pregnant woman in relation to her fetus not be crimi-
her wishes;
nalized;
(d) child welfare or other legislation never be used to control a woman’s
behaviour during pregnancy or birth; and
(e) civil liability never be imposed upon a woman for harm done to her
fetus during pregnancy.0 4
103 It should also be noted that empirical research conducted for the Commission evidences no
overwhelming revulsion among Canadians towards surrogacy, paid or unpaid. The results suggest
that the respondents to the Commission’s inquiries were evenly divided on many aspects of the issue
(see Decima Research, “Social Values and Attitudes of Canadians Toward New Reproductive Tech-
nologies” in Research Studies of the- Royal Commission on New Reproductive Technologies, Social
Values and Attitudes Surrounding New Reproductive Technologies, vol. 2 (Ottawa: Minister of Supply
and Services Canada, 1993) 35; M. de Groh, “Reproductive Technologies, Adoption, and Issues on
the Cost of Health Care: Summary of Canada Health Monitor Results” in Social Values and Attitudes
Surrounding New Reproductive Technologies, ibid., 297; M. de Groh, “Key Findings from a National
Survey Conducted by the Angus Reid Group: Infertility, Surrogacy, Fetal Tissue Research, and Re-
productive Technologies” in Social Values and Attitudes Surrounding New Reproductive Technolo-
gies, ibid., 203).
In 1985, the Ontario Law Reform Commission, supra note 2, recommended that surrogacy
arrangements be regulated. This position has only a few analogues in the United States (see
Guichon, supra note 6; Williams, supra note 6).
‘o4 Report, supra note 1 at 964.
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The premise of this recommendation is that, in a conflict of values between those relat-
ing to “the chances for the birth of a healthy child”‘ 5 and those relating to the personal
autonomy of a pregnant woman, the latter should prevail. The Commission thus dis-
parages the use of legal constraints as patronizing and ineffectual. Moreover, the
Commission suggests that the types of legal and judicial intervention described in these
recommendations are inconsistent with the ethic of care.
Because the woman’s consent and cooperation are needed to ensure a positive
outcome for the fetus, it follows that the most effective way of caring for the
fetus is through appropriate support and caring for the pregnant woman….
In the Commission’s view, extending care to the fetus by giving the pregnant
woman the support she needs provides the best hope for enhancing the health
and well-being of both the fetus and the woman carrying iL”6
Recommendation 273 is different from the others seen thus far because it proposes to
exclude the operation of the criminal law rather than to extend it. It remains to be seen,
therefore, whether the criminal law is capable of application in the manner described in
that proposal.
Recommendation 273 is not specifically concerned with forms of research or with
aspects of assisted conception. It seeks the advancement and vindication of a principle
by urging restraint in the uses of the law. The forms of legal or judicial intervention
identified in this recommendation are not entirely concerned with the criminal law. In-
deed, for the most part, the possibility of judicial intervention contemplated by the
Commission is chiefly a matter of provincial law relating to mental health and the wel-
fare of children.’9
Recommendation 273(b) presumably means that no existing law should be used,
and no new law should be created, that would allow a pregnant woman to be confined
or imprisoned in the interests of her fetus. On the first point, this would mean more
specifically that no prosecutor should charge an offence that could have this outcome
and, if there were a conviction, no judge should order confinement or imprisonment for
this reason. In a conflict of values relating to the personal autonomy of a woman and
the prospects of the fetus, the former should prevail. Thus a woman should not be
treated by the law in a manner that regards her as an instrument for the health of her
fetus. The Commission does not clearly express the circumstances envisaged ty this
recommendation. One possibility would be instances in which a woman might be
prosecuted for some offence that involves causing death or bodily harm to her fetus.
15 Ibid
06 Ibid at 964,965.
107 Rodgers, supra note 26 at 2; see also J.E. Hanigsberg, “Power and Procreation: State Interfer-
ence in Pregnancy” (1991) 23 Ottawa L. Rev. 35.
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P. HEALY – STATUTORY PROHIBITIONS
There is little law on this matter in Canada,’08 but what there is must be derived from
section 223 of the Criminal Code, especially subsection 2:
A person commits homicide when he causes injury to a child before or after its
birth as a result of which the child dies after it becomes a human being.
Although subsection 2 specifically defines an instance of homicide, it is arguable that
the same provision could be applied in respect of offences of causing bodily harm. The
Supreme Court has ruled that, for the purposes of criminal liability, a fetus is not a hu-
man being or person unless it is bom alive.’09 It is possible, therefore, that a person
could be charged for bodily harm or death caused to a fetus that is born alive. It is on
this basis, for example, that there have been prosecutions in the United States against
pregnant women for harm that they have allegedly caused to a fetus that was subse-
quently born alive.”0
Recommendation 273(c) is intended specifically as an injunction to Parliament not
to use its power to create an offence that would allow a pregnant woman to be prose-
cuted for conduct that might adversely affect the fetus she carries. The rationale for
this, and indeed for the whole of Recommendation 273, is the primacy of personal
autonomy in a conflict of values. The immediate causes for this recommendation are
twofold. One is the spectre of prosecutions in the United States on grounds.similar to
those disparaged in the recommendation.”‘ There is no evidence that such prosecutions
have taken place in Canada, and thus the recommendation can be seen in large measure
as prophylactic. It seeks to enjoin a potential use of the criminal law, not to correct a
current and entrenched use of the criminal law in current practice. The second and
more pressing reason for Recommendation 273, especially paragraph (c), is that the
Law Reform Commission recommended in 1989 that Parliament create a crime of fetal
destruction or harm:
Everyone commits a crime who …
being a pregnant woman, purposely causes destruction or serious harm to
her foetus by any act or by failing to make reasonable provision for assis-
tance in respect of her delivery.”‘
This proposal has been firmly opposed by many, including the Canadian Bar Associa-
tion, on the ground that it would violate the personal autonomy of a pregnant woman
’03 Rodgers, ibkd at4.
109R. v. Sullivan, [1991] 1 S.C.R. 489, 63 C.C.C. (3d) 97; see also M. Shaffer, “Foetal Rights and
the Regulation of Abortion” (1994) 39 McGill L.J. 58.
“10 See Rodgers, supra note 26 at 72-76.
III Ibid.; see generally Raymond, supra note 29.
112Law Reform Commission of Canada, Crimes Against the Foetus (Working Paper 58) (Ottawa:
Law Reform Commission of Canada, 1989) at 64 [hereinafter Crimes Against the Foetus].
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[Vol. 40
and constitute an intolerable measure of state control over conduct during pregnancy.”‘
The Law Reform Commission stated that the “requisite culpability should be limited to
purpose.”‘
4 By thus limiting the scope of the proposed offence to purposeful conduct,
the Commission acknowledged that any offence in this matter would be difficult and
controversial.
1
While few perhaps would deny that pregnant women have a moral obligation
to avoid reckless or negligent conduct affecting their foetuses, we hesitate to
bring in criminal law at this point. In the first place, because of the unique rela-
tionship between mother and foetus, use here of criminal law would – un-
fairly in our view –
impose special burdens on her over and above those fal-
ling on all other parties. Second, criminal law enforcement would involve in-
tolerable restrictions, on the mother’s own autonomy, e.g., monitoring the way
she eats, drinks, smokes and so on. Third, such monitoring and restrictions
could well cause marital and familial disruption. Finally, at a time when preg-
nant women’s civil liability for foetal injuries is far from resolved, it would be
premature to impose on them the still more onerous burden of criminal liabil-
ity.115
These caveats with respect to the proposed offence are so clearly stated that they
amount, in effect, to a powerful rebuttal of the recommendation.
It might be noted here that the Commission, in Recommendation 273, unlike the
Law Reform Commission, does not address the liability of a pregnant woman for fail-
ure to obtain assistance in child-birth. ‘6 This matter is currently addressed under sec-
tion 242 of the Criminal Code. Prosecutions have been rare but the principle espoused
by the Commission would entail repeal of section 242.
Apart from specific offences concerned with the conduct of pregnant women, the
Commission evidently contemplates in Recommendation 273(b) any case in which an
incidental aspect of criminal prosecution would be confinement or imprisonment of a
woman in the interests of her fetus. For practical purposes, the only issues of criminal
law raised here are whether the interests of the fetus are relevant to denying interim
release after arrest or to sentencing. There is no sufficient body of decisions in which
judges have ordered continued detention or a custodial sentence in the interests of the
fetus over the liberty of the pregnant woman. 17 The best explanation for this is proba-
bly that it would be transparently and self-evidently wrong for a judge to confine or
detain a woman solely in the interests of the fetus because those interests are strictly ir-
relevant in relation to ball or in relation to punishment. It can be argued that only one
case will suffice to make a case for legislative prohibition of such decisions, but it is
113 According to Martin, supra note 26 at 120, the Commission received submissions that advo-
cated the enactment of offences that would sanction conduct by a pregnant woman that causes harm
to the fetus she carries.
114Crimes Against the Foetus, supra note 112 at 52.
,5 Ibid.
“6 Report, supra note 1 at 964.
117 See generally MacKenzie, supra note 37.
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P HEALY – STATUTORY PROHIBITIONS
submitted that an equally effective remedy would lie in the appellate courts. Without
denying or impugning the principle upon which it is based, Recommendation 273 does
not now warrant any legislative action with respect to the criminal law. l Any statutory
prohibition intended to sanction a pregnant woman’s conduct on the basis of harm or
danger to the fetus is guaranteed to raise a powerful challenge to its validity under sec-
tion 7 of the Charter. The exact extent of a woman’s right of personal security under
that section remains unclear after R. v. Morgentaler,”9 but there is no doubt that the
right of personal security has sufficient force to put any such prohibitions in doubL
In short, then, it would seem that the weight of the argument lies in principle with
the conclusion of the Commission in Recommendation 273. But it does not follow that
the Government of Canada should act on this recommendation because there is now no
demonstrable need to modify the criminal law so as to correct a problem that does not
presently exist. It is undesirable to use the force of the criminal law to make strictly
symbolic declarations of fundamental values. The obligation or duty of care owed by a
pregnant woman to her fetus should properly be seen instead as a moral obligation that
is beyond the reach of the law, civil or criminal.’20
d
Unwanted Medical Intervention and Criminal Assault
Another recommendation in Chapter 30, “Judicial Intervention in Pregnancy and
Birth,” concems the legal definition of liability for medical intervention that is un-
wanted by the pregnant woman.
274. Unwanted medical treatment and other interferences, or threatened inter-
ferences, with the physical autonomy of pregnant women be recognized
explicitly under the Criminal Code as criminal assault.’2’
As with Recommendation 273, the value- that this proposal seeks to preserve is the per-
sonal autonomy of pregnant women. It might be asked here too whether the ethic of
care necessarily compels a restatement of liability for assault in the manner proposed in
Recommendation 274.
Recommendation 274 proposes that the personal autonomy of pregnant women be
given enhanced protection by including within the notion of criminal assault instances
of unwanted medical treatment and other actual or threatened interferences with the
physical autonomy of pregnant women, especially by way of caesarean section.’2 This
recommendation is redundant to the extent that its substance is covered by the general
law of assault, which is defined in section 265 of the Criminal Code. Moreover, there
Ila See the dissenting opinion in the Report, supra note 1 at 1134.
19 Morgentaler (1988), supra note 72.
120 See R. Bessner, “State Intervention and the Pregnant Women” in Basen, Eichler & Lippman, su-
pra note 2, vol. 2, 170 at 175.
2t Report, supra note I at 965.
122 See I. Grant, “Forced Obstetrical Intervention: A Charter Analysis” (1989) 39 U.T.LJ. 217;
Hanigsberg, supra note 107.
942
MCGILL LAW JOURNALIREVUE DE DROIT DE MCGILL
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is scope for civil liability for assault by private action or by way of complaint before
professional disciplinary boards. It might well be argued that section 265 of the Code is
not used effectively to prosecute assault, but that is not equivalent to arguing that the
net of liability is cast in such a way as to allow persons guilty of assault to escape con-
viction. There is no discernible body of jurisprudence to suggest that accused persons
easily mount successful defences to assault charges that are laid and brought to court.
There are two other factors that militate against the implementation of this proposal.
First, the recommendation might be inconsistent with other provisions of the Criminal
Code that impose a duty on persons who undertake to provide medical assistance to
take all reasonable care. Second, as has been stated previously, it is imprudent to use
the force of the criminal law for hortatory purposes (i.e., a statutory declaration of the
personal autonomy of specifically identified members of society) in circumstances
where principles of general application adequately address the interests of personal
autonomy. In sum, it might be said that the principle of restraint in the use of criminal
sanctions provides the dominant and compelling reason to refrain from implementing
Recommendation 274.23
e.
Other Possible Prohibitions
It was noted above that the Commission liberally recommends prohibition as a
means of enforcing its conclusions of policy but fails to make plain whether prohibi-
tions should be statutory or otherwise, and whether statutory prohibitions should be
criminal or otherwise. It will be recalled that a single statutory scheme could include
criminal sanctions, regulatory prohibitions, and administrative prohibitions and thus it
might be appropriate to identify some of the especially ambiguous recommendations in
the Report.
There are several recommendations that could be included among penal sanctions
by virtue of their subject matter and the rationales that support them. No attempt will
be made here to survey these recommendations thoroughly, but some examples will
suffice. Recommendation 287 states the following:
287. The prohibition of the commercial exchange of fetuses and fetal tissue
extend to tissue imported from other countries, so that no fetuses or fetal
tissues are used in Canada for which women have received payment, or
where a profit has been made by an intermediary.
This proposal follows a recommendation that provincial legislation be amended to
prohibit the sale of fetal tissue. However, it is not clear whether the form of federal
prohibition contemplated by Recommendation 287 is criminal or regulatory. The prin-
ciple behind this proposal is the abhorrence of the commodification of human repro-
duction, and it is for this same reason that the Commission recommended that partici-
pation in commercial surrogacy arrangements be prohibited “under threat of criminal
sanction” on the terms stated in Recommendation 199. The Report also refers
12-One commissioner, Dr. Suzanne Rozell Scorsone, dissented from Recommendations 273 and
274 (Report, supra note 1 at 1053-1146).
1995]
P HEALY – STATUTORY PROHIBITIONS
obliquely to the Commission’s view that “the commercial exchange of fetuses and fetal
tissue be prohibited under threat of criminal sanction,”‘ 24 although there is no recom-
mendation in precisely these terms. However, it should be noted that in the “Overview
of Recommendations”, the Commission lists Recommendation 287 among its propos-
als for use of the criminal law.
The foregoing example is perhaps best regarded simply as a lack of terminological
precision, yet others suffer from substantive difficulties. For instance, there are many
recommendations relating to genetic alteration but the precise terms of these recom-
mendations are not clear. Recommendation 192, it will be recalled, identified various
forms of research that should be condemned under threat of criminal sanction. In
Chapter 26, “Prenatal Diagnosis for Congenital Anomalies and Genetic Disease”, the
Commission also recommends statutory guidelines to prevent genetics centres from
acquiring licences to permit genetic alteration of a human zygote or embryo.”-‘ It is en-
tirely plausible, given the rationale for this recommendation, that the objective could
and should be sought by means of criminal prohibition.
There are also several proposed prohibitions that clearly contemplate a criminal of-
fence, in that offenders could be charged by information and.brought before the courts.
They have a similar form:
86. Collecting, storing and distributing, or using sperm in providing assisted
insemination services without a licence issued by the National Reproduc-
tive Technologies Commission, or without complying with the National
Commission’s licensing requirements, as outlined below, constitute an of-
fence subject to prosecution.’26
These proposals would sanction non-compliance with the conditions of a regulatory
scheme. That, of course, does not by itself settle whether the offences should be crimi-
nal or regulatory in nature, but it will also be seen that the type of behaviour contem-
plated in these recommendations could as easily be the object of outright criminal
prohibition.
B. Options
It is important to emphasize, again, that criminal sanctions and regulatory controls
over reproductive technologies are not mutually exclusive. Indeed, the norm through-
out the Commonwealth would now appear to be legislation that is primarily regulatory
in nature, but enforced by prohibitions. These prohibitions typically concern breach of
the requirement for a licence or non-compliance with licensing conditions. Only a few
offences can be described as direct criminal prohibitions, but even those few are incor-
porated within the same statute.
124 Ibid. at 1002.
125 Recommendation 241, supra note 36.
126 Ibid. at 475; see also, e.g., Recommendation 131, supra note 34; Recommendation 196, supra
note 34; Recommendation 234, supra note 34; Recommendation 291, supra note 34.
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On this last point it is useful to consider various options with respect to the form of
possible legislative responses at the federal level. Criminal sanctions could, of course,
be introduced in the Criminal Code.2 7 This would be especially appropriate for dis-
crete, easily defined forms of behaviour. Criminal prohibitions could also be included
in other federal statutes –
either an existing statute or a new statute created specifi-
cally to address issues relating to reproductive technologies. It might also be noted that
criminal sanctions could be introduced in one, two, or all of these legislative instru-
ments. The statutory source of an offence does not affect its definition or quality as a
criminal offence, and thus there is little significance to be drawn from the source alone.
If the Government of Canada should decide not to embark upon any form of regulation
of reproductive technologies, and yet to criminalize certain types of behaviour, there is
perhaps a stronger argument that a criminal offence should be introduced by amend-
ment of the Criminal Code. Conversely, if the Government should decide to regulate
the matter of reproductive technologies, alone or with the cooperation of the provinces,
a distinct statute for this purpose is a more flexible and coherent option. It would allow
the Government to declare its policy in a single statement and to adapt it by amend-
ment and further regulation in response to new developments. This latter option of a
distinct statute is useful whether or not it incorporates criminal sanctions.
There are three broad areas in which criminal sanctions could be imposed: genetic
research; assisted conception; and interference with the personal autonomy of pregnant
women. It is beyond doubt that Parliament can create criminal offences in relation to
each of these three matters. The reason for doing so can be summarized in general
terms as the protection of society from harm by the reinforcement of fundamental val-
ues and by the deterrence of harmful behaviour. The enactment of criminal offences
would no doubt send a strong message to the public and to the professional communi-
ties that have special interests in reproductive technologies. This is perhaps especially
true with respect to certain types of genetic research and surrogacy arrangements, be-
cause they pose a degree of novelty that causes moral and ethical anxiety; but the sym-
bolic value of a strong message can also be challenged by a substantial array of objec-
tions to the enactment of criminal sanctions.
The most important question is whether the enactment of criminal prohibitions is
necessary to protect fundamental values and to achieve an effective measure of deter-
rence of undesirable behaviour. This question has two dimensions. The first relates to
the principle of restraint in the use of the criminal law. Is it clear that no other means of
control can effectively achieve the desired protection of fundamental values and the
deterrence of harmful conduct? At the moment, the answer to this question is negative
because Parliament and the provincial legislatures have not attempted alternative
measures. The second aspect is more problematic and consists essentially of the rea-
sons why responsible decision-makers could seek the introduction of criminal sanc-
tions. Even if criminal sanctions are considered appropriate measures, is it clear that
there is a consensus on the values that demand protection by the criminal law and the
127An example might be the prohibition of participation in paid surrogacy arrangements.
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P. HEALY – STATUTORY PROHIBITIONS
manner in which offences should be defined? Is it similarly clear that the enactment of
criminal sanctions would actually have a demonstrable deterrent effect?
The research of the Commission, despite its claims, suggests that there is a sub-
stantial measure of ambiguity and ambivalence in public opinion. It cannot be claimed
that there is overwhelming empirical support for the criminal prohibitions recom-
mended by the Commission. It is perhaps clear that there is much anxiety among the
public about aspects of reproductive technologies, but the evidence compiled by the
Commission does not lead ineluctably to the conclusion that criminal sanctions are
warranted. Moreover, it might plausibly be argued that the ethic of care entirely sup-
ports the option not to enact criminal sanctions but to control the development of re-
productive technologies by regulation in a manner that protects, but also promotes, the
public interest. If some of the activities that the Commission proposes to criminalize
could actually promote the public interest and enhance the ethic of care, it might be
considered an error of judgment to allow the threat of criminal sanction to foreclose the
development of helpful knowledge and experience. In other words, there might be a
significant social harm in criminalizing behaviour in the manner proposed by the
Commission.
Conclusion
These are intractable questions of principle, and arguments can be made on this
basis for and against the use of criminal sanctions. There are also objections of a more
pragmatic nature.
The introduction of criminal sanctions by Parliament could have the effect of
excluding regulatory or penal control, by Parliament or the provinces, over matters
covered by the definition of criminal offences. By enacting criminal offences, Par-
liament would adopt an option for controlling reproductive technologies that is in-
flexible and resistant to change.
The principle of legality is a concept in criminal law that demands sufficient
definition of the terms of criminal liability. The public is entitled to be informed
with adequate clarity of the limits of lawful behaviour. The enactment of criminal
offences relating to reproductive technologies, and particularly offences relating to
scientific processes and biological entities, would require exceptional precision. Of-
fences drawn in the terms used in Recommendations 184 and 192 are not good
enough. Parliament would likely have to create offences by reference to a schedule
of prohibitions or by reference to subordinate legislation that particularizes unlaw-
ful conduct. Once again, however, it must be asked whether these recommendations
might not as effectively be enacted in a regulatory scheme.
Assuming nonetheless that criminal sanctions were introduced, the enforcement
of such offences would be exceptionally problematic.
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A preliminary problem would be investigation and the acquisition of evidence.
The creation of criminal sanctions implies that alleged offences would be investi-
gated according to the ordinary procedures of the criminal law. This would mean,
in practical terms, that police officers would conduct investigations, principally by
means of oral information and search and seizure. With respect to the latter, section
8 of the Charter has been interpreted so as to require prior authorization before a
search or seizure can be executed. No doubt a special statute dealing with repro-
ductive technologies could provide specific rules relating to search, seizure, and
more generally the acquisition of information, as is the case in the Food and Drugs
Act and the Narcotic Control Act,” but these special provisions cannot replace a
strictly regulatory model of investigation for the enforcement of criminal offences.
A smaller, but not insignificant, point is the authority to prosecute any proposed
offences. Offences in the Criminal Code are typically prosecuted by the Attorney
General of the province, whereas offences in other federal enactments are typically
prosecuted by the Attorney General of Canada. If criminal offences were intro-
duced in the Criminal Code and in other federal statutes, there might be a possibil-
ity of inconsistency or even of conflict. If offences were enacted in legislation other
than the Criminal Code, the law should specifically provide for the Attorney Gen-
eral of the province to prosecute after giving personal consent to the preferment of
charges and after having consulted with the Attorney General of Canada. Alterna-
tively, authority to prosecute could be given to the Attorney General of Canada on
the same conditions.
With respect to genetic research, the possibility of successful prosecution
would be diminished in two senses by the corporate nature of such work. One is the
specific notion that corporations might be liable for particular offences, in which
case the prosecutor would have to satisfy the complex and difficult tasks of proving
the acts of some natural person or persons, so as to engage the liability of the cor-
poration. Apart from corporate liability in this narrow sense, there is also the prob-
lem that genetic research is often corporate in the sense that it involves large num-
bers of people who contribute to a single enterprise. For purposes of prosecution,
therefore, this would raise problems in identifying the participants in criminal ac-
tivity.
Another significant obstacle to effective prosecution might be the heightened
standard of proof (i.e. beyond a reasonable doubt) required for conviction of a
criminal offence. This would apply to all offences prosecuted in the ordinary
courts, as opposed to infractions that occur under a regulatory scheme administered
by an agency.
For these reasons, and for others given above, the case for criminal prohibitions
without a broader regulatory scheme is unpersuasive.
128 R.S.C. 1985, c. N-I.
