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One Day in Court: the Importance of Being There
The day was a reminder that the role of the Christian faith perspective remains important in Canadian life, law and society.

Friday, April 24 was an interesting day. Not that other days are less than interesting, but the opportunity to be engaged with the Supreme Court of Canada on what is literally a matter of life doesn’t present itself too frequently.

The Evangelical Fellowship of Canada (EFC) and the Canadian Conference of Catholic Bishops (CCCB) jointly applied and were granted opportunity to intervene before the court in a constitutional challenge brought by the Attorney-General of Quebec to the legislative authority of the Government of Canada to enact certain sections of the Assisted Human Reproduction Act. Essentially, Canada argued that the Act had been established under the federal criminal law power as it contained prohibitions, necessary and interrelated regulatory provisions, and penalties for violation. Quebec (joined by Alberta, New Brunswick and Saskatchewan) was arguing that certain of the regulatory sections were within provincial jurisdiction rather than federal because they dealt with the provincial power in regard to medicine.

…our presence … was an encouragement to the lawyers for Canada who faced four tables of opposing counsel…

The EFC’s President Bruce J. Clemenger, myself and Associate Legal Counsel Faye Sonier were in the courtroom for the hearing of the appeal from the decision of the Quebec Court of Appeal, hence the designation of the case file as A-G Canada v A-G Quebec.

Sonier and I were seated at the counsel tables, sitting on the Attorney-General of Canada’s side of the courtroom (think along the lines of a wedding when people are seated with the bride or the groom – legal counsel for Canada sat at the first row table on the left side of the courtroom with legal counsel for the EFC seated at the table immediately behind, while legal counsel for Quebec and the provinces sat on the other side of the courtroom). All nine justices were present to hear the constitutional division of powers case in regard to the Assisted Human Reproduction Act. The court hears appeals sitting in odd numbers (as opposed to even numbers) to decrease likelihood of a tie in a split decision but does not always sit “en banc”, i.e. all nine at once.

A condition of the EFC and CCCB being granted intervenor status was that we could submit written argument but were not being provided time on the 24th for oral argument. Why then be present in the courtroom, particularly at the counsel tables?

First, we were available should the court have any questions concerning our written submissions.

Second, our presence expressed both our commitment to our submission and was an encouragement to the lawyers for Canada who faced four tables of opposing counsel on this case. There is something significant about being present in person. Counsel for Canada expressed their appreciation for our support and noted some of our public interest argument in their verbal presentation to the court. We also had opportunity to encourage counsel in their presentation and engage in discussion on the break that counsel for Canada noted they found to be of benefit. That, in turn, was something we appreciated, especially considering that one of the federal government’s lawyers, Peter Hogg, literally wrote the book on Canadian constitutional law that has remained the standard through five editions over more than 30 years.

During the course of the hearing, several justices asked pointed questions that reflected the national public interest concerns distinctly raised in our written argument – i.e. assisted human reproduction is an artificial means of pursuing procreation of what is uniquely human life and Canadians have an interest in the morality and ethics of how such artificial procreation is pursued. Justice Charron asked a particularly directed series of questions to counsel for Quebec about the issues noted at paragraph 28 of the EFC’s written presentation, namely that the legislation is about more than a medical treatment and must be concerned with the consequences of not having potential criminal penalties for undesirable behaviour (commodification of human beings; designer babies; sex selection; “saviour” babies) in regard to assisted human reproduction. As counsel for Canada put it at one point, the Act is about dealing with the purity of human genetic material and its use rather than about the regulation of how to make jam. The regulation of how to make jam, by the way, being uncontested by the provinces as federal jurisdiction under the Food and Drug Act.

In his closing remarks, Rene Leblanc (one of the lawyers for Canada), did a nice job of tying up the day’s arguments by walking through the combination of prohibitions and regulations in the Act that would come into play once a medical diagnosis was made to artificially assist a couple to procreate. His brief demonstration gave practical consideration to how the challenged sections of the Act work intricately with the unchallenged sections to prevent potential violations of the unique dignity of human life.

The justices reserved their decision on the matter. This means we wait, usually several months, for written reasons to be issued by the court.

Leaving the courtroom, we felt a good sense of the key issues having been heard and a hopefulness that the court will rule in favour of the legislation remaining intact.

Of course, much more was presented that day but this brief reflection is a reminder that the role of the Christian faith perspective remains important in Canadian life, law and society – especially when voiced in the language of the chosen forum so that it might be heard, in this case through reasoned legal argument with a foundation in Biblical principle.

The one thing all counsel and judges in the courtroom agreed on that day was that criminal law is about the morality and standards of a society. At issue was whether that morality is enforceable in regard to a procedure some regard as simply medical and others, the EFC included, as a matter of life. Uniquely, human life.

Don Hutchinson is Vice-President and General Legal Counsel with The Evangelical Fellowship of Canada. He is also Director of the EFC’s Centre for Faith and Public Life located in Ottawa.




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