 Hi there. I'm Sheila Wildman, Associate Director of the Health Law Institute, welcoming you to the sixth lecture in this year's Health Law and Policy 7R series. Mary Ellen Trappell Vaughn, who was originally scheduled for this date, was unfortunately unable to make it. But happily, Dave Snow was available to share his important work with us. So Dave Snow was born and raised in Fredericton, New Brunswick, where he completed a VA in political science at St. Thomas University. Then he completed an MA and PhD in political science at the University of Calgary, specializing in assisted reproductive technology policy and constitutional law. He's currently at Killen Post-Doctoral Fellow at Noble Tech Abix in the Faculty of Medicine here at Dalhousie. And beginning in July, he'll join the Department of Political Science at the University of Wales. So beyond his work in the area of assisted reproduction law and policy, his research has addressed social policy issues including homelessness and the regulation of liquor sales, as well as central features of Canadian constitutional democracy, like the little used Section 33 override. So without any further ado, let's give you an override. Time for Dave to override me. Can everyone hear me okay without the mic? Yeah. Yeah, okay. I tend to not use mics. Thank you, Sheila, for that lovely introduction. And thanks to all of you for coming here. I'm really excited to have an opportunity to share with you some of my research that I've been working on for too many years to count and get some feedback from a legal audience on the legal aspect of my research. So the title of my talk is assisted reproductive technology policy. Can we get past the roadblocks? And what I'm going to be looking at is what I've called Canada's ART policy puzzle. I'm going to mention right now that for me it's second nature to see ART and think assisted reproductive technologies. I realize for many people I'm not talking about ART policy and you're going to see that acronym a lot. And I call it a puzzle because what happened is after ten years in the making Canada passed extremely comprehensive assisted reproductive technology legislation in 2004 and six years later it was struck down by the Supreme Court of Canada and I'm going to tell a lot of that story for violating provincial jurisdiction over health. And four plus years later every province except Quebec has done virtually nothing in terms of policy making in this field. So it's a puzzle because it's very evidently what I've turned a policy failure and that doesn't mean that it's bad policy although many in fact most think it is but that federal policy makers and federal politicians tried to do something and what we've ended up with is something very different. So beyond the obvious answer to the question of why do we end up with this policy the obvious answer is well because the Supreme Court struck down the law for violating these provisions in the Constitution. So back and I look at a number of primary documents in the history and the lead up to the passage of this policy to understand why this policy failure occurred and what it means for future policy making both in this field and in others. And my answer has to do with this growing field in public policy and political science and even in legal analysis called policy framing which I'll talk more about and particularly this concept I've developed called jurisdictional framing about how governments frame a particular policy as properly belonging to one level of government rather than another in a federation. And so having explained all that and having given some history explanation of why this policy failure has occurred I then I'm going to talk a little bit and invite questions on this question of what can be done. And so the title of my talk can we get past the roadblocks the vast majority is going to be explaining what the current roadblocks are and why they exist and then I'll open it to you and I'll give some preliminary suggestions as to why or what can be done to get past the roadblocks and just as a spoiler pretty pessimistic that anything can be done to get past the roadblocks. So what is assisted reproductive technology policy? The literature regardless of the field is heavily divided on what's meant by this policy field. The definition I offer is a broad one. So it's the rules which is to say rules that come down from government or from organizations that are delegated authority by government such as self-regulating medical organizations for the use of human reproductive materials. This is primarily human eggs, human sperm, human embryos for two purposes. First being non-coital or non-sexual reproduction. So when we think of what goes on in fertility clinics, when we think of surrogacy, when we think of all the rules related to licensing and storage of human reproductive material those rules fit within assisted reproductive technology policy but also beyond that the use of human reproductive material for scientific research. So here we get into rules for genetic manipulation for pre-implantation genetic diagnosis which is embryonic diagnosis, fetal diagnosis, prenatal diagnosis and even all the way to human cloning and embryonic stem cell research. So this is an extremely broad field and this is a broad definition. Some exclude that second category from it but it certainly is the definition that Canadian policymakers use throughout the entire process. And a couple of important things to note about this field. First of all, it's relatively new. The first child born through in vitro fertilization which is fertilization outside of a woman's uterus and in the lab which is then transferred into a woman's uterus was Louise Brown, she was born in 1978. So the first child, that's frequently the point that's identified as sort of the beginning moment when governments around the world said huh, maybe we've got to do some regulation in this area. It's less than 40 years ago. Which makes it easy for scholars to identify when policy began in a given jurisdiction. And the other thing is that it has enormous political implications as we would expect from a broad field. If people are involved, institutions, advocacy groups, arms of government that have anything to do with just some of these areas that I've mentioned here, then assisted reproductive technology is going to affect those areas. So it's a policy field that is attracted scholars from a lot of different disciplines and attracted a lot of interdisciplinary work. A brief word on what I mean by policy framing because this is the theoretical framework I use to explain. Policy framing is a concept that's growing in the especially political science and public policy literature but I would also argue in the legal literature even though the term isn't always used. A lot of legal analysis looks at the way politicians interest groups, sort of political elites if you will, frame the way a given policy area, or frame a policy area to the public. So it's about structuring political debate, creating a simplified image of otherwise complex policy options. I'll use a controversial example of abortion, right? Abortion policy, we're familiar with groups or political elites who will frame it and say this policy area is fundamentally about a women's right to choose. Or other groups, this policy area is fundamentally about the rights of the unborn. Another maybe less controversial, maybe equally controversial policy field, think of the oil sands in Alberta and think of what different political parties how they frame that debate. The federal government and indeed Alberta's current progressive conservative government frame the oil sands as fundamentally being about growing Canadian economy or making Canada an energy superpower. Whereas the federal NDP is far more likely to frame environmental degradation and contributing to climate change. So it's about taking an issue and simplifying the image to make it more saleable to the public or indeed more saleable to other politicians. And it's especially important in a new field because if a new policy field develops, if new technologies develop such as occurred with assisted reproductive technologies and there's sort of an information vacuum in the public and even among elites, then the definition of the situation at the outset that prevails is going to be extremely important in affecting future public policy. One of the problems I've identified with the policy framing literature, here's my Marco Rubio moment for anyone who remembers that, is that I study federations and I study federalism. And the policy framing literature has been all about substance. But in my years of studying Canadian law, I recognize that politicians and interest groups and parliamentarians and bureaucrats even will frame issues as not just being about a particular substance but also as properly belonging to one government rather than the other. And there's been little in the literature about this way that we frame in terms of jurisdictional competence. So I developed this sort of dichotomy between substantive framing, which is policy framing as traditionally known on the one hand, and then what I call jurisdictional framing. So jurisdictional framing, as I define it, is describing a policy as properly belonging to one government rather than the other. And it contains two components that are related but that are different and have different implications for the policymaking process. And the first we could think of any policy area is the normative question, the ought question. Why should a government act? So we'll frequently see the federal government say this is an issue of concern to all Canadians and we must act. Think of, for example, the way that the liberal government or liberal governments in the past make care policy, right? That's an ought question. The federal government ought to act. We need uniformity across the country. The second is the more procedural element, be probably of more interest to a legal audience, which is explaining why it is that the government has the legal capacity to act. And this is not something that's pitched at the public so much as it is at fellow lawmakers. So they're interrelated, they're easily conflated, but they are different. So a diagram to help simplify all this. The second is the substantive framing. This policy is fundamentally about X. Oil sands are fundamentally about growing the Canadian economy, right? The two aspects to jurisdictional framing, the normative, the federal government must act. And then the procedural, we have the authority under section 9127 of the Constitution Act 1867. Far less sexy kind of policy frame, but one that nevertheless remains important. That collectively is jurisdictional framing. So on to the Canadian story. I've sort of explained my theoretical framework. Just about everyone and with good reason who studies sister reproductive technology policy in Canada, identifies the start of the policymaking process with the Royal Commission on New Reproductive Technologies. Now the Royal Commission was struck by Prime Minister Brian Mulroney in 1989, and he commissioned a group of experts to study, and he gave them a mandate for examining the social, ethical, legal and economic implications of what were then known as new reproductive technologies. Sweeping mandate. It took them four years to report. 283 recommendations. Over a thousand page document, millions of dollars spent on consultations with interest groups and Canadians across the board. And those two 83 recommendations, I will sum up as falling into three categories. First, that the federal government ought to create a number of criminal prohibitions. There were certain activities and behaviors that were so beyond the pale that they ought to be criminally prescribed with the threat of jail time or severe fines. Second, a regulatory structure. So these are the more beneficial aspects of assisted reproductive technologies, which the commission still felt required government oversight. The commission was by no means sort of pro-market, let the market decide, let the medical organizations do what they want. The commission's argument was that they needed government oversight even for those beneficial aspects and then third, that there be a national agency. That this all needed to be done by the federal government at the national level. Very few of its 283 recommendations applied to provincial governments or medical organizations. So it was very much framed as a national issue. Now the most important study of the Royal Commission on Reproductive Technologies in my mind, and I'm including my own studies here, is Francesca Scala's work, especially in 2002, but subsequent work, on the Royal Commission, she's a political scientist at Concordia University, and she used a policy framing approach as well to explain why it is the Royal Commission came to its recommendations. What were the influences on the commission's final recommendation? And she identifies two frames that were prominent in the late 80s and early 90s surrounding what were then known as new reproductive technologies because they were new. And the first, and this is common to a lot of literature on sort of moral issues, is what she calls the medical scientific frame, which saw reproductive technologies as being neutral and necessary as transforming the patient into a client. This is privileging the idea of scientific progress, and sociologist Peter Conrad defines when assisted reproductive technologies are defined in medical terms, they are to be treated with medical intervention. And you'll not be surprised to know that it was medical organizations and scientific research organizations that most pushed this medical scientific view of reproductive technologies were. Interestingly, Scala also found that the vast majority of legal organizations largely subscribed to the medical scientific view. Not all, but the vast majority. She also identifies another frame, a more amorphous frame, and she doesn't give it a name, but I call it the moral frame. And so part of the reason that she doesn't name it and part of the reason it's so difficult to define is it encompasses different groups that don't often agree on a lot of policy fields. There are many organizations on the one hand and a lot of social and religious conservative organizations as well agreeing that these technologies were harmful to society for a number of different reasons. But what they had in common was a broader critique of science and medicine, and they would frequently make use of the language of commodification, so treating women and children as commodities to be bought and sold, of exploitation of vulnerable women, and of the commercialization but of reproduction women primarily as being harmful. Also language of afference to human dignity, those sorts of things. And what Scala and others found, and it's certainly the dominant conception in the literature, is that the Royal Commission was far more influenced by the medical scientific frame, and that its recommendations and its language reflect the medical scientific frame. So this stuff didn't win the day according to the dominant conception of the Royal Commission on new reproductive technologies. So using this table, again, this is not to say that Scala left out jurisdictional framing because it's a term that I've invented in the last couple of years, but in terms of policy framing, she said it was primarily medical scientific, and there's a number of reasons that I'm not going to go into about just the organizational structure of the commission itself. Happy to talk about those in Q&A. I say this is largely true, but there is one important qualification which renders itself increasingly important as we look at the trajectory of policy beyond the Royal Commission, and that has to do with those criminal prohibitions that I mentioned. The Royal Commission said that there were certain practices that conflict so sharply with the values of Canadians that they must be prohibited, and these included just about any and all commercial activities involving human reproductive material, so they recommended a prohibition on payment for human sperm, eggs, embryos, and surrogacy for certain forms of embryonic research, certain forms of genetic research and genetic manipulation, and of course, human cloning. Not just the content of those recommendations is what's important though, because the framing is also crucial, and when we look at the language that the commission used to frame the criminal prohibitions, it's very much in keeping with the moral frame, dehumanizing effects, criticism of the market, commercial exchanges undermining dignity and leading to commodification of women and children. Not only is this in keeping with the moral way of framing these technologies, but it also certainly doesn't correspond to the medical scientific frame. This sort of language and these sorts of prohibitions don't privilege technological values or unlimited notions of positive progress. They're neither neutral nor client centered, and they were opposed by and continue to be opposed by the medical profession in Canada then and now. So rather than saying that the Royal Commission was uniformly medical scientific in terms of its framing and its recommendations, I argue that there's actually some linguistic ambivalence built in here, and the colors here aren't any mistake, right? Light green means go, dark red means stop. The beneficial aspects of assisted reproduction were framed according to the medical scientific view, and the prohibitions were framed morally. And this isn't to say by using the word ambivalence that the commissioners didn't know what they wanted or what they were talking about. This is an enormous field of public policy. So it makes sense that you're going to think, well some of these things can be beneficial, and some of these things can be harmful. But I think it is important to note that that linguistic ambivalence was built in. So here's the Scala view I mentioned before, and I'm using Scala as a bit of a lightning rod because her work is the best before a number of legal scholars, primarily legal scholars and political scientists who subscribe to this view of policy framing. And here's my slight change. I'm snow. Medical scientific, moral and we've got some ambivalence. So that's part of the story. The next part of the story has to do with jurisdictional framing. Because in my reading of the Royal Commission, they didn't just frame this issue in terms of policy substance, but they also framed it in terms of who ought to have the authority. Before going on to that, I'm going to say a brief word about Canadian federalism and healthcare. This will not be new information to anyone in this room who has taught or taken a class on Canadian constitutionalism. This is a simplification. I don't know if it constitutes a gross simplification. But it is a simplification, but one that I think is nevertheless largely true, that healthcare is largely provincial jurisdiction in Canada. Because of a number of provisions here in the Constitution and because of jurisprudence from the Judicial Committee of the Privy Council and then the Supreme Court of Canada after it, making health policy, making policy for the regulation of medicine is largely provincial jurisdiction. It is true that the federal government has some authority. There is something called the Canada Health Act, there is something called the Canada Health Transfer, but mostly that authority comes with financial policymaking in terms of giving money to the provinces and attaching conditions to that funding. But there are times in which the federal government can make health policy and the constitutional mechanisms by which they can, the reasons in the Constitution the federal government can do that, there's two of them. The first is the peace order and good government clause. So this is an original residual clause at the beginning of section 91 of the Constitution. Most people are familiar, this is the Constitution Act 1867, with the phrase peace order and good government. It's come to be sort of a Canadian mantra that separates us from the United States. But in terms of constitutional law, the Judicial Committee and then the Supreme Court of Canada have whittled down Pog to being useful to the federal government. That is to say the federal government can say we can legislate in this otherwise provincial field based on peace order and government in one of two instances. The first is in an instance of a national emergency. What's by its definition is temporary and sweeping. The second has to do when there's an issue of national concern. This is an issue that goes beyond provincial boundaries, that cannot be contained by provincial governments and has inherent national dimensions, to use another word the Supreme Court uses in its jurisprudence. Now even among those who are extremely critical of assisted reproductive technologies in the early 90's, no one was seriously arguing that they constituted a national emergency. So really the only constitutional instrument available to the Royal Commission from peace order and good government in making its framing recommendations was that national concern component of Pog. But I said there were two instruments and the other is the criminal law power. Now the federal government in Canada has the authority to define the criminal law to say what is and is not a crime and it also has the authority to attach regulations to those criminal prohibitions to help implement and better implement those criminal prohibitions and those can obviously touch on fields of health care. Just think of how prohibitions on drugs impact health care policy that would seek to use those drugs to help people for various reasons. So there is some federal involvement. These are the two instruments that are available to the federal government if they're going to participate in the field of health. With respect to assisted reproductive technologies those criminal prohibitions were likely going to be valid. Now they might not withstand charter scrutiny but in terms of whether or not the federal government has the ability to act. If the federal government makes something a crime attaches a criminal penalty, has a criminal law purpose then likely it's going to be upheld as valid criminal law. It's been generally by the Supreme Court of Canada interpreted as a quite broad power but the regulatory authority attached to those criminal prohibitions was less clear. So the Royal Commission was operating in an area which by no means had certainty over the federal government's ability to fully legislate according to its recommendations and that's why it needed to frame the policy according to jurisdictional framing. So how did it do that? Normatively speaking in terms of what the federal government should do its argument was one based on national intervention and I'd say better national importance national uniformity is being a goal. The first chapter of the Royal Commission was titled a comprehensive response to issues of national importance. That gives away the punchline of who they thought should be the main actor in this field. They saw a national strategy as the only feasible response they saw assisted reproductive technologies as too serious to be delayed, fragmented or tentative and that is to say policy made by provincial governments or medical organizations and of course this covered all the aspects for which they had recommended. The beneficial aspects of assisted reproduction and those things which ought to be criminally prohibited. So there's your normal frame. Procedurally they relied most heavily on that national concern branch of peace order and good government. For those of you who are familiar with pog jurisprudence, a lot of these terms will be familiar to you. Genuine national concern, singleness, distinctiveness and invisibility, relatedness, profound importance, maybe not profound importance so much. These terms are lifted right out of Supreme Court jurisprudence that had in the past been used to uphold or to explain why it is that peace order and good governments, when it is that peace order and good government can apply. So the commission knew what it was doing and it said these terms, this language applies to assisted reproductive technologies because of their unique nature. Uniqueness was another term that was used quite frequently. They did recognize the commissioners and the commission that the criminal law power was available to parliament but they spoke about it very briefly and said, yeah, for the criminal prohibitions obviously we've got the criminal law power. For everything else, we've got peace order and good government because these are issues of inherent national concern. So, here's my updated policy framing diagram. We've got this medical moral ambivalence in terms of substantive framing. We've got normative framing of national uniformity and national importance. Why should the federal government act rather than other governments? And procedurally, primarily peace order and good government and secondarily, the criminal law power but mostly Pog, mostly national concern. The criminal law power of course corresponds quite simply to those moral frames which were used for criminal prohibitions. Pog and national uniformity in terms of being an apt procedural justification was less clear. Now, the grunt work of a lot of this, the most boring stuff which I'm not going to talk about that much, of this research project involved my examination of sort of all the federal policymaking process starting with the Royal Commission right up to the passage of legislation in 2004. This includes committee hearings and answer debates in parliament for four attempted pieces of legislation only the fourth one ended up passing. A hugely influential planning committee on health report that heard all sorts of committee hearings and then reported in 2001 health Canada report other stakeholder reports that eventually resulted in the assisted human reproduction. And one of my arguments is that these frames were for the most part maintained nearly identically throughout this entire 11 year process even as assisted reproductive technologies developed and became normalized in society. And part of the reason for that is that the Royal Commission was operating one of those information vacuums. And so there's a term in the economics and political science literature called path dependence that when you sort of initiate policy in a vacuum there's a stickiness to these ideas and from the evidence I've seen they certainly stuck through the policymaking process which I'll get to more in a moment. But what is the assisted human reproduction act? What is this piece of legislation now 11 years old that was passed by the federal government? Well at one time it was called by health Canada the most comprehensive frameworks in the world for assisted reproductive technologies. I think in terms of on paper that's largely true that sort of if implemented and if fully regulated it may have been one of the most comprehensive frameworks in the world. It fit with that broad definition of assisted reproduction I gave at the beginning albeit not addressing parentage policy. But what's fascinating is in terms of its content it largely followed the Royal Commission. It had criminal prohibitions and criminal prohibitions on most of the things the Royal Commission recommended prohibiting. Payment for human reproductive material payment for surrogacy these are banned in Canada beyond expenses. Human cloning, animal human chimeras all sorts of genetic manipulation criminally prohibited. You can go to GL for up to 10 years or pay a $500,000 fine if caught doing these activities. Controlled activities largely fit with what the Royal Commission recommended for regulations. So these are activities that are prohibited unless done in accordance with regulations in a license. And most of these activities you'll see listed here relate to sort of the day to day work of governing fertility clinics, right? Rules for donor consent, patient consent licensing, keeping of patient records rules for clinical practice and I should say as well it was more a regulatory structure with the idea that Health Canada is going to create the regulations later after the passage of legislation which isn't uncommon federally. And third it created this national agency, assisted human reproduction Canada. Sometimes known as the assisted human reproduction agency of Canada. So in terms of content I've studied other Royal Commissions. There are all sorts of Royal Commissions that spend same number of taxpayer dollars, same number of years, same number of recommendations and just don't get implemented by governments. And so at least on paper this was a very successful Royal Commission in terms of being implemented largely into legislation. Its frames were also recreated. So the medical scientific frame, here's a number of quotes from health ministers, different health ministers because it took 11 years, you had different health ministers. Alan Rock and Anne McClellan. Did I read the other day that Anne McClellan is now Chancellor of Dalhousie University? So here's a couple quotes from her, I assume she's somewhere in the audience today, right? Enormous potential and great hope that Canadians can benefit from the research associated with assisted reproduction. Speaks to one of the most fundamental desires, having a family. And in the Standing Committee Report, it was called building families, right? There's great merit in research in this field. So clearly the federal government and parliamentarians viewed some aspects of assisted reproduction as being scientifically beneficial and as creating hope for people who previously could not have families to have families. So there's that medical frame. But when it came to the prohibited activities, prohibited technologies, say moral framing that we saw from the commission. Here are quotes from Alan Rock and McClellan and committee chairperson Bonnie Brown. Higher notion than science alone. This one, activities that Canadians simply will not countenance because they offend shared values. That's very similar to the wording the Royal Commission used. And the intent of the legislation of the criminal prohibition specifically is to eliminate commodification and eliminate commercialization. So again, this linguistic ambivalence is continued lockstep from the Royal Commission. In terms of its normative jurisdictional frame we also see continuation of national uniformity, of national intervention, of national importance. Here's Alan Rock again. An area where federal leadership is needed. National issues that reflect national values. Pan-Canadian approach that doesn't follow the patchwork of the United States. Frequent reference made to the United States as always occurs with healthcare and social policy in Canada as a road that you don't want to go down. Information needs to be collected on a national basis and the goal is summarized by one witness to develop uniform legislation across the country. And I think that's largely true that that was the primary goal of this legislation. Procedurally though, is where we see the shift. And this is where the story takes an important twist. Procedurally, the government started justifying it on behalf of the criminal law power. So here's a federal official and Department of Justice talking at committee that saying the basis on which we're proposing to legislate and regulate is the criminal law power. So beneficial and negative aspects. Here's Alan Rock, former lawyer at the time Minister of Health, satisfied as a minister as a person and as a lawyer that will be upheld as criminal. And speaking to a former civil servant, he told me that the Department of Justice was not persuaded by the argument that it could be done under peace order and good government. My question is what changed? What happened between 1993 and early 2000's into 2004 that persuaded the government to shift away from the Royal Commission's procedural recommendation while maintaining its recommendations in terms of content and indeed its frames in terms of substance and normative why the federal government ought to act. Two reasons. The first is that even in 1993 the Pog argument wasn't particularly strong. So we've got eminent legal scholars, Pat Healy and Alison Harvison Young, both judges subsequently, arguing in the 1990's that peace order and good government provided a weak basis for which there was little jurisprudential support. Yes, the Royal Commission lifted that language of singleness, indivisibility and distinctiveness from Supreme Court jurisprudence, but it didn't explain why the content of those cases, say the environment of something that clearly goes beyond provincial boundaries or even fighting inflation. Why that ought to apply to assisted reproductive technologies. Why they couldn't be contained by suitable provincial regulation, for example. And in fact, their only reference the Royal Commission to a quote-unquote clear precedent was radio broadcasting being governed by the federal government. So it was relatively speaking a poor justification in 1993. In the Commission's defense, what it couldn't have known was the way that Supreme Court jurisprudence shifted during the exact time that federal parliamentarians were debating using the Royal Commission's recommendations to debate and create assisted human reproduction legislation from 1995 right up to the early 2000's. Let me explain. Four cases here, some of you may be familiar with. Each of these cases they deal with tobacco, the environment, firearms and marijuana. In each of these cases, contemporaneous to federal government debating assisted reproductive technology policy we've got a federal law that has a criminal prohibition and impunes at least in theory on an aspect of provincial legislation in most cases but not all cases health. So we've got a federal law banning tobacco, federal law banning I believe it was the dumping of pesticides I could be wrong but it was the Canadian Environmental Protection Act, federal law with the firearms registry, federal law banning marijuana. In each case there are regulations attached to that criminal prohibition and in each case the Supreme Court of Canada sometimes divided, upholds the federal legislation. So this is a winning streak for the federal government but it's a winning streak with a less broad tool can't think of a good analogy but peace order in government is broader than the criminal law power and the criminal law power in each of these instances is the mechanism that the Supreme Court uses to uphold the legislation and we see this language don't find it necessary, not necessary unnecessary, leave this question for another day as to whether or not if the criminal law power had failed that this legislation even in an area like the environment that clearly has a sort of national dimension to it that goes beyond provincial boundaries. The Supreme Court said we're going to answer that peace order in good government question and Supreme Court does not always not answer questions that it doesn't need to. There are many instances where Supreme Court and other courts say we don't need to answer this question but we will anyway just just just for future reference, for clarity in the future but in each of these cases the Supreme Court moves away from peace order in good government so there's very good reasons why the federal government would say that peace order in good government recommendation, national concern wasn't very good in 1993 even worse now. We're doing this all under the criminal law and it's worth noting that expert opinion agreed with the federal government. Here is a sampling of some quotes at committee in Parliament talking about the legislation Pat Healy later a judge Tim Caulfield law professor at the University of Alberta Brent Wintwick on behalf of the Canadian Bar Association and these are just a sampling of different law professors and legal experts saying yes the federal government has the authority to legislate and regulate and license under the criminal law authority confident that it will be upheld allay any concerns about constitutional justification of all the legal witnesses who came in to speak on the constitutionality of the law and there were over a dozen, only one suggested that the law might get struck down for federalism reasons. So this is a lesson not trust the experts on anything but especially constitutional law that includes me. Here's the table, the Royal Commission's policy framing from before here's the change in the assisted human reproduction act everything stays the same including the normative frame that's crucial but criminal law becomes the sole justification and now this was going to be a problem in fact the government of Quebec was always opposed to the non-criminal aspects of the assisted human reproduction act Quebec's view is essentially you know what ban all you want, you want to criminalize something go ahead and do it, that's your prerogative you start regulating medicine you start regulating healthcare then you're imputing on provincial jurisdiction and liberal and PQ governments alike in Quebec wrote letters to the federal government saying if you regulate in this area we're going to challenge you in court the Canadian alliance members as well frequently made statements saying this is going to violate the constitution over healthcare and in 2007 Quebec, true to its word launches a reference case in its court of appeal which asks essentially, this is again a simplification of the question, I don't think the entire question would fit on the whole page are the non-criminal aspects of the assisted human reproduction act ultra-virus that is to say outside the legal authority of Canada, non-criminal aspects again remember ban all you want and they won 3-0 unanimously in the court of appeal in 2008 but it was quickly appealed and everyone knew that this was going to go to the Supreme Court of Canada so in 2010 the Supreme Court finally rules after 18 months I believe of between hearing and the actual case which I think is around three times the average limit so it was heavily divided court and again the question is do the non-criminal sections of the assisted human reproduction act this is my paraphrasing of the question violate provincial jurisdiction over healthcare small asterisks there because there were certain minor prohibitions that Quebec said that's not actually a prohibition that's really regulation but essentially it was all the criminal stuff Quebec left alone and it said everything else licensing, privacy information everything mostly that goes on at the fertility clinics enforcement of what goes on fertility clinics that's all traditionally provincial healthcare jurisdiction federal government you can't do that and the Supreme Court rules December 23 2010 they split 5-4 in favor of the provinces Quebec wins it's actually a 4-4 one decision I'll go through each in total yes it's a reference opinion yes it's not legally binding but as anyone here studies reference opinions knows governments treat them as legally binding and this government did as well it's a 163 page decision many doctrinal disagreements in the modern era in the McLaughlin court I would go as far as saying this is one of the sharpest and some of the attacks the most personal between the groups of justices in terms of disagreement at 1.1 group said to another group that their approach was contrary to the normal form of constitutional analysis fundamentally though the disagreement between the two groups having read the decision about a million times comes down to whether or not the purpose of the impugned provisions is the non-criminal aspects of the legislation are designed to regulate a good to promote good things or to eliminate evil to stop harms Chief Justice McLaughlin for herself and three other justices she wrote the opinion she said that the impugned provisions remember this is not the criminal aspects this is everything else target evils and I'm not being hyperbolic and nor is she this is common supreme court language when determining what the limits of criminal law power she said the purpose of those regulations of that regulatory of that administrative authority is to prohibit practices that would undercut moral values produce public health evils and threatened security and that the regulations this is crucial were ancillary or necessary to the achievement of the criminal prohibitions and so the act as a whole according to these four justices was valid criminal law jurisdiction they agreed with the legal experts who said that the whole act will be upheld so long as you've got some criminal prohibitions in there justices LaBelle and Deschamps for their part interestingly to Quebec justices said that the impugned provisions target goods they recognized that the prohibitions targeted evils remember the prohibitions mostly weren't challenged but that those prohibitions didn't depend on the existence of the regulatory scheme in fact they were able to stand alone regardless of whether or not the regulations existed and they pointed to the fact that at the time only one regulation had actually been passed by health Canada and yet the criminal prohibitions remained very much in place and so the way I've characterized this is saying that LaBelle and Deschamps said that the provinces and the federal government have a division of labor with respect to assisted reproductive technologies where the federal government can ban all the bad stuff but once you get to promoting and regulating the good stuff medicine health care that's provincial health care jurisdiction so we've got a 4-4 standoff and at the time the most rookie justice on the court justice Cromwell from Nova Scotia who I believe is now the third longest standing justice on the court which shows how much turnover there's been in the last four and a half years he made a slight alteration when I happened to actually agree with which said that actually those prohibitions that Quebec says aren't prohibitions they are prohibitions but everything else he agreed with LaBelle and Deschamps at some point very brief opinion something like 10 paragraphs he says I agree substantially for the reasons offered by LaBelle and Deschamps so essentially he says all the criminal prohibitions constitutional, virtually everything else unconstitutional I said that the major disagreement here was about legislative history it was sorry that it was about whether or not it was a good or an evil the impugned provisions why did the justices diverge into opinions on this my view is it's because of how they read and the weight they gave to legislative and royal commission history and Chief Justice McLaughlin and here I'm showing my hand and telling you who I feel was in the right in this decision largely ignored that legislative history she said the royal commission was merely policy analysis which it of course wasn't the benefits were not the focus of parliament's efforts that the dominant thrust of the act was prohibitory and the act was essentially a series of prohibitions this is not grounded in the legislative history from my reading of committee hearings ministerial statements and I'll point you again to this slide from earlier from ministers of health talking about the enormous potential the great benefits the great merit and research the fact that the standing committee report on the legislation was called building families that's not language used to justify an act that's dominant thrust is prohibitory by contrast Justice LaBelle and Deschamps where their opinion was heavily informed by legislative history they made frequent reference to the royal commission and frequent reference to ministerial statements talking about how important the royal commission was to the development of legislation and they quoted these ministerial and public and sort of deputy ministerial civil servants statements and they found that the unifying purpose of the legislation was not the promotion of good things nor the elimination of evils but the true purpose of the legislation was national intervention national importance national uniformity to have the same system in place across the country for assisted reproductive technologies and in my reading that's largely true and that's a good thing for many people I bet most people in this room would agree yeah having national uniformity in this sort of field would be a good thing for many people in this room if not most but the problem and this is perhaps the most important quotation from the decision is that LaBelle and Deschamps said neither a desire for uniformity nor the very novelty of a medical technology can serve as the basis for an exercise of the federal criminal law power importance and a desire for uniformity that sounds like peace order and good government language but that's not why the criminal law power exists to have this important issue be the same across the country we're a constitutional federation that empowers the constitution and the governments must adhere to the rules of the game and of course the way that the courts have interpreted the rules of the game according to my language you can have a normative frame about why you ought to intervene all you want but it requires that coherence procedural justification the irony and this is an overused term but I think I'm using it correctly here the irony of all this is that the most faithful reading of legislative history justices use that legislative history to actually strike most of this legislation down again I know reference opinion not technically struck down essentially struck down so here's the way the assisted human reproduction act was framed here's what Chief Justice McLaughlin needed to do in order to make the frames align she needed to say no no no really the legislation was all about moral outrage its dominant thrust was prohibitory it was designed to eliminate a number of activities whereas LaBelle and Deschamps more informed by legislative history said no the act is actually about national uniformity national consistency and the criminal law power beyond the prohibitions can't apply to regulations designed to promote beneficial behavior the result of the reference opinion Quebec wins of course and so all of this stuff that belongs mostly speaking to fertility clinics the before during and after of people going to fertility clinics becomes or some would say remains because the federal government never actually regulated in this field they just said they would remains provincial jurisdiction and for those desiring whether it be national regulation or provincial regulation just some regulation beyond criminal law of assisted reproductive technologies this is not a happy ending because Quebec passed a law in 2004 they passed an updated or they sorry they drafted an updated law in late sorry Quebec passed a law in 2010 they've drafted an updated law which will likely pass in the fall of 2014 just a few months ago but outside of Quebec the provinces have done virtually nothing in the four plus years in this field so this is why I say policy failure the royal commission and the federal government in the 1990s and indeed the federal opposition parties thought something ought to be done and beyond criminal prohibitions and in the province of Quebec little has been done by governments and that's why this is a policy failure a slight addendum that I think tells an interesting story going forward for the development of federalism jurisprudence and how federal governments ought to react and anticipate different Supreme Court rulings is when the federal government finally amended the assistant human reproduction act and it's 2012 omnibus budget legislation so you can be forgiven for not remembering this because sort of they packed this in I think it was section 700 and something of the omnibus budget legislation but what the federal government did when it amended the assistant human reproduction act it largely implemented the supreme court's ruling according to its own interpretation closed down that national agency subsumed its remaining functions which are very little into health Canada removed the controlled activities that's all those sort of regulated activities and all the licensing requirements and most interestingly it replaced section 10 which had been struck down it was a controlled activity on the use of human reproductive material so this was you can't use sperm eggs and embryos unless done in accordance with regulation and license regulations and licenses hadn't been created yet and they put in a new much more detailed section 10 which is also a qualified prohibition right so the federal government says all we can do is ban stuff now we've just got to prohibit we can't attach regulations that was one approach but they didn't do that they actually introduced another qualified prohibition in effect what was another controlled activity even though they took that word out but they did something I've never seen before there are a lot of legal experts in the room before or the room right now and you can tell me if you've seen this before in any event if it does happen it's quite rare I'm familiar with legislative preambles I'm familiar with statutory declarations the beginning of legislation I've never seen a government introduce a subsection at the beginning of one section and say the purpose of this section is to reduce the risk to human health and safety including the risk and the transmission of disease this is a direct response to the supreme court of Canada which says if you want to attach a regulation to a criminal prohibition you've got to show us the evil that you're eliminating and you've got to show us how you're going to eliminate and the federal government says okay here it is and sort of you think oh this is the federal government really pushing back they really want to regulate this area but this section is not yet enforced because the regulations haven't been created yet they do another 45 minutes on why the regulations haven't been created yet but suffice it to say that's the federal government showing that if you do the same thing but you frame it in a different way they think at least that you're going to have a higher likelihood of success so what are some of the implications of this ruling for Canadian law and politics on the judicial side this is a majority ruling yes it's 4-4-1, yes it's tentative yes there have been subsequent federalism cases but none that have dealt with this type of jurisprudence really legislative history becomes more important legislative history has become increasingly important in charter decisions but the majority went back and they looked at what happened in parliament and they said no this doesn't matter what the attorney general saying now look at what the government said this is the purposes of the legislation on parliament side there is an incentive as they did with their amendment to the assisted in human reproduction act to emphasize the evils right to introduce the Supreme Court I didn't talk about this but the majority introduced this concept from charter analysis of a reasoned apprehension of harm which is to say show us the harm you're trying to eliminate and show us directly how you're going to do it you just can't say where this all has to do with criminal prohibitions because there are six criminal prohibitions in there right and so we see there is an incentive to emphasize evils and I would even go so far as to say had parliament passed the exact same legislation that it did but all of the government's statements the dominant thrust of this act is prohibitory it's all about eliminating harmful things there's nothing beneficial here of assisted reproductive technologies that that same legislation would have had a much higher likelihood of being upheld in court counterfactual but it's kind of what we do and finally the further marginalization of peace order and good government the royal commission's dominant legislative or constitutional instrument in 1993 the federal government doesn't even bother using it as a secondary argument in the 2008 or 2010 cases in Quebec and the Supreme Court of Canada and the Quebec Court of Peel I should note said even if you'd used peace order and good government you couldn't use it anyway it wouldn't work if Pog's national concern clause is not dead it is hanging on for dear life and if the federal government wants to legislate in terms of national concern this must now reflect national condemnation it can't be national concern about something beneficial it has to be condemning an evil activity in order for the federal government to legislate at least in terms of health care policy so that's how we got to our blocked road what are some of the current institutional roadblocks first of all we have a completely uninterested national government and I would say an uninterested national opposition as well the only time that the ending was said virtually nothing about assisted reproduction the federal government amended the decision but they never talked about it and I don't think any health minister has ever uttered the words national reproduction and the only time that the NDP has got up in arms about national reproduction is about the lack of regulations and really about financial mismanagement at the former agency assisted human reproduction Canada this is not going to be an election issue in the election this year no political party wants to touch this for a variety of different reasons quite obvious why certain parties wouldn't want to be seen as legislating reproduction assisted or otherwise so we have political parties that are for a variety of reasons loathe to touch this issue Health Canada yes the federal government has control over health Canada but oftentimes it develops its regulations somewhat independent less so with this government of government recommendations and it is completely uninterested in developing the regulations for the few remaining categories for assisted reproduction over which it has authority and in spite of repeated calls and requests for why aren't you regulating why aren't you regulating Health Canada is just saying we've got it up on our website it's fine and so they have limited regulatory authority and they're not exercising that authority anyway maybe that will change with the change of government who knows we have uninterested provincial governance outside of Quebec I didn't talk about the Quebec legislation happy to in the Q&A outside of Quebec no government wants to touch this and Quebec legislated in 2010 it brought in funding for IVF and it introduced regulations for embryo transfer it has now introduced legislation pulling back that funding for IVF and it is getting absolutely slammed by medical organizations no provincial government is going to look at Quebec and say yeah legislating for assisted human reproduction we should put this at the top of our election platform in the next election Years ago I wrote because I study Australia as well and I spent some time down there looking at how state governments in Australia have collaborated around assisted reproduction in order to create somewhat uniform imperfect but somewhat uniform public policy and I argued that Canada can do the same and ought to do the same through various existing institutions I'm far less optimistic having looked at it a little more closely because state governments don't have a history of intergovernmental collaboration in these sorts of ways in these sorts of fields we have a lot more financial intergovernmental collaboration this is a collaboration between provincial governments we certainly don't have federal leadership the way they do in Australia to get the provinces together to regulate so I think that that is another institutional roadblock and we have medical organizations that are very powerful national specialist organizations and provincial colleges of physicians and surgeons and anytime you do anything they could be seen as potentially introducing a penalty as influencing clinical practice they, as we've seen in Quebec are going to jump out and say this is an affront to Canadian healthcare, this is an affront to doctor patient confidentiality and so long as their self-regulation remains competent I'm not saying that self-regulation on assisted reproductive technologies is perfect, my supervisor would kill me if I said that but so long as it's competent and we're not getting an octo-mom situation every day we're getting crazy stories of cowboy doctors transferring 13 embryos at a time and hyper-stimulating every woman who comes in then provincial governments are going to say you know what, they're doing fine we're not going to touch this so for those of us in this room who think there ought to be some government regulation as a political scientist who studies institutions and thinks institutions matter I show you a number of roadblocks why I think that is not going to be the case and it's going to be a very very long time outside of Quebec before we see any regulation in this particular field and so the hope must rest that the medical organizations continue to update their policy continue to make good public policy because they're the only ones who are actually de facto creating regulations beyond the federal prohibitions in this field with that, thank you for listening and I invite your questions going to hand here to your donations in Canada in February 2016 because that's the year on from when the decision happens right my hunch is and this is certainly not as familiar with the field, I've read the decision but with medical, my hunch is that provincial medical organizations are going to collaborate with provincial governments in this time in order to sort of create a policy framework within those provinces. I think it's already happening in Quebec if I'm not mistaken and maybe British Columbia but so I think that this is an issue that's more touchable you know, poll after poll shows Canadians are in favour especially those who have experienced it are in favour of some form of physician assisted dying and in terms of the federal level I don't think this government is going to legislate but in October this government may not be the government anymore I just heard this clip on the news the other day so I don't know if it's true but last week I heard that the Liberals were planning on introducing a motion into parliament did they actually do that? it shows at least that the opposition parties are not saying as they have with assisted reproduction, none of us want to touch this hot potato. The opposition parties are saying we're willing to take this issue and we're willing to do some sort of federal to amend the criminal code as it exists I'm unclear about what the federal government will do but I think by February of 2016 we'll see far more provincial policymaking in concert with medical organizations on assisted dying than we will see on assisted human aid production that'll be my prediction Sandra so in the absence of the octo-moms and the migrostinulation, what is the new for regulation? that is what many would say here's an example of why perhaps regulation is a good thing medical organizations across the country particularly the Society of Obstructions Obstructions of Gynecologists of Canada and the Canadian Fertility and Andrology Society those are the sort of the organizations, the fertility and obstetrical organizations that come together create policy documents and say this is best clinical practice in the country and they're largely followed in clinics. I have a colleague who can tell you more about the few cowboy clinics who sort of don't always follow the rules but generally speaking because the community is so small they tend to be followed and they've recommended implementing single embryo transfer for women under the age of 35 who are healthy and double embryo transfer for older women for certain conditions those recommendations have been happening and embryo transfer rates and twin rates have been falling across the country Quebec introduces its regulations in 2010 and Quebec's twin rates plummet so there's something about being forced to do it by government that has made Quebec physicians more likely to do it and one of the tricks there is that Quebec government said okay you've got to decrease your twin rates you've got to decrease your embryo transfer rates and they were stricter than the federal guidelines for other provinces but they also said at the same time oh we're going to fund IVF which means way more work for all of you and so now I've said for years and I'm not the only one to say this those two things are independent of one another whether you fund IVF or both or neither and now that the Quebec government is saying we're keeping those rules for embryo transfer and we're defunding IVF the Quebec physician organizations are somewhat getting away with saying the funding of IVF has been responsible for the drop in twin rates I can't believe you're taking away this funding of IVF so it'll be interesting to see if this law passes in Quebec and IVF is defunded and those embryo transfer regulations remain in place if Quebec rates go back up I highly doubt it so that's just an instance of if that happens because the patient doesn't if I don't have to pay for IVF then I'm happy to single in the event I think if you have to pay I mean I have not been a patient at IVF but I think if you have to pay for IVF even if you don't have to pay for it and I've witnessed this in infertility clinics when I've sat in patients ask can you transfer more even more than the two that's permitted and I mean this is when they're paying for it yes but patients want to increase their chance of pregnancy and if you say ah you might be more likely to have twins there's these medical complications will my pregnancy rate go up? yes it will go up a little bit patients will say that they want it more that's my hunch I've read elements of IVF have a strong opinion but for each element there are usually large variations of opinion and a substantial at least a substantial minority who believe one way or another how is it that the Royal Commission said that there were shared values when in fact the country there may not be shared values in fact the commission leadership itself suggests that there are no shared values for the first time in any Royal Commission history there were a few commissioners at three or four who were far more partial to that moral view of assisted reproductive technologies to recommend more criminalization and to say that these are problematic and they had such disagreement with the chairperson and with the chairperson staff that the Royal Commission or Patricia Baird asked the Prime Minister for permission, got the permission and fired four of the commissioners on the Royal Commission it might have been three of the commissioners who disagreed with her and replaced them so there's a lot of evidence that the Royal Commission sought to eliminate dissent and this is certainly not the first instance in Canada or elsewhere of a government ascribing a national consensus or national values to anything I've done some work and just as frequently say there is a national consensus against commercialization in Canada we don't pay for things we don't pay for organs, we don't pay for sex we don't pay for human reproductive material it's just something we don't do this doesn't exactly correspond with polling data but it's a nice rhetorical strategy especially when you compare us to the United States and so I think it was a successful rhetorical strategy on the part of the commissioners to say that we've talked to Canadians and we've got a national consensus against these sorts of behaviors I mean there were some things there was certainly a national consensus against human cloning and a number of other more extreme genetic manipulation factors and I should add as well that one commissioner wrote a dissenting report on some aspects Suzanne Scorsoni I think was her name and she just recommended that certain things be a little more criminalized and a little more tightly regulated but in the real world it's hardly surprising that the provincial that's a very political party seemed an intro in terms of that I think there's a literature on what are known as sort of moral policies or morality policies which just in the Canadian context especially political parties you just don't win by legislating for them interestingly enough assisted dying fits into this category and sort of this willingness of provinces to make legislation sort of goes against the norm but assisted reproduction certainly fits into that category especially in Canada where we have such a strong Supreme Court and so many of these issues end up making their way to the courts anyway and the Supreme Court is a supremely popular institution in Canada and its opinions have weight so when courts do rule federal governments don't want to do anything frequently not always that are seen as pushing back against that Supreme Court decision in such morally contentious areas and this is a particular government that not just assisted reproduction but reproduction more generally I remember sort of stifling debate within the Conservative Party itself on sort of fetal personhood it wasn't even a bill it was sort of that word resolution for very good reason the Conservatives have a history especially as the Alliance Party in the early years of the Conservative Party of having MPs speak up and say things about the issues of majority of Canadians on women's reproduction so if I were Stephen Harper I would not want to touch this with a ten foot pool either especially in the election year Reflecting on your study of of capitalism generally in this area of social policy and others as well what do you think about the kind of trend toward eroding the cog basis of justification in terms of federal power is it a good thing or is it a strength of use I mean I think it depends on one's view of federalism and of the role of the provinces if you favor a strong federal government then you're going to think that this is unfortunate if you think that provincial variation the thing about provincial variation is at the moment it's never it's never optimal it's when you look back and you say oh yeah, Alberta had this really successful policy regarding X or Ontario had this really successful policy regarding Y that the other provinces subsequently adopted that it looks better in retrospect so I think that I mean I think healthcare innovation is going to be extremely important in the coming decades and so in that sense if we've got variation then that can be a good thing and I'll point to assisted reproduction in Quebec I am not in favor of funding in vitro fertilization from the federal government I think there are more valuable and there are more valuable things any aspect in the healthcare system I understand that those suffering with IVF disagree with me very strongly but I think healthcare dollars are better spent elsewhere and I think the Quebec experiment has shown other provinces that costs can balloon the people who don't necessarily need IVF will nonetheless use it and that this is a policy that perhaps ought not to be adopted so this is an example where provincial experimentation has perhaps shown other provinces that this is not a particularly good policy I have a quick follow up so there's something about the combination between what seems to be a kind of manipulability of the discourse as between promoting good and preventing evil so that on the one hand and also something about what looks to me like a sort of re-education of legislative intent that's happening in the analysis of jurisdiction that makes me uneasy and so can I comment a little bit on that? I will submit that the good bad dichotomy is a bit of a false one that certainly in order to promote something that's good you are sometimes simultaneously eliminating something that's bad I think in this particular instance the McLaughlin argument which was the Attorney General of Canada's argument that she accepted was particularly weak to say that this huge piece of legislation was essentially a vast array of prohibitions which it wasn't, it was four or five prohibitions and then a huge regulatory structure in terms of legislative intent I mean especially when it's so recent when the cases in 2010 and these statements were made in 2001 I think it certainly at least deserves some weight and we've all seen newspaper columns on this most recent assisted dying decision and others saying basically the Supreme Court decide laws according to whatever they want to I don't believe that, I think doctrine is constraining jurisprudence constraining I think legislative intent matters but I think to the extent that we ignore legislative intent then we move farther down that road of the Supreme Court just being able to pick whatever they want having said that I picked out the quotes that made my argument yesterday and both sets of Supreme Court justices did the exact same thing and picked out the quotes so it is difficult just as in response to your question of asserting okay these are the values of Canadians it's also difficult to say this is the intent of the government over an 11 year period where they had several different health ministers where they had different leaders Paul Martin was in power by the time they passed the legislation so I do take that point but I think I would worry about throwing the baby out with the bathwater so I in that sense I think it's nice to at least have legislative intent be part of the conversation remember the BC Motor Vehicles case this is one of my favorites where Justice LaMaire a few years after the Charter's past was talking about what it is that this Deputy Minister had said this is what we mean by this section of the Charter this is what we mean by this interpretation of fundamental justice and Justice LaMaire said oh that statement should be given minimal weight I think this is a key part of the disclaimer of the Charter saying this is exactly what we mean and it's like four years ago that's the sort of thing that I would hope to avoid so I think it's worth having at least a bit of weight Thank you today before I do I just want to make an announcement about the next session that we have coming up so Fiona Martin from the Department of Sociology and Social Anthropology talked on Friday, March 13th and it's entitled On Becoming a Mother and Disengaging from Injection Drug Use so let me just thank Dave then for his rigorous and rigorous talk that not only gave me and I think you as well a lot of rich insights into assisted human reproduction technology policy but also goes a pretty long way toward making federalism sexy Thanks Dave