A Constitutional Analysis of the Proposed Ban on Non-Reproductive Human Cloning: An Unjustified Violation of Freedom of Expression?

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I. Introduction

Like all other Canadian legislation, in order to be valid law, the provisions of Bill C-13, An act respecting assisted human reproduction, (1) must be consistent with the terms of Canada's Constitution, and, in particular, must not unjustifiably infringe upon the individual rights and freedoms set out in the Canadian Charter of Rights and Freedoms. (2) With this fundamental legal principle in mind, this paper will focus on one of the many questions which may arise regarding the constitutionality of the bill: namely, does the prohibition of Non-Reproductive Human Cloning (3) unjustifiably violate freedom of expression? (4) The primary purpose of this paper is not to resolve this question but rather is to identify the main issues and concerns which are implicated by this query and to thereby determine whether a reasonable constitutional challenge could be mounted against the NRHC Ban on the basis of s. 2(b) of the Charter.

II. The Process of Charter Analysis

The structure of the Charter requires a court to undertake a two step analysis whenever legislation is challenged on the basis of an alleged Charter breach. The first step is to determine if the law in question violates a substantive Charter right. If a Charter right is not infringed, the legislation is constitutionally valid. If a Charter right is infringed, however, the court moves on to the second step of the analysis, which is to determine whether the violation is "reasonably and demonstrably justified in a free and democratic society" pursuant to s. 1 of the Charter. (5) Applying this two-step analysis to the question of whether the NRHC Ban unjustifiably violates freedom of expression, a court would have to determine:

* Whether the NRHC Ban infringes on freedom of expression, and, if so,

* Whether the NRHC Ban is a reasonable and demonstrably justified limit on freedom of expression.

III. Does the NRHC Ban In fringe Freedom of Expression? (6)

Section 2(b) of the Charter guarantees to every individual the right to freedom of expression. (7) In defining this right, the Supreme Court of Canada has held that the right is violated by any law whose purpose or effect is to restrict expression. Thus, in order to determine whether a given law violates a complainant's right to freedom of expression, a court must first find that the complainant's activity constitutes expression and second that the law in question, either by its purpose or by its effect, restricts that expression. (8)

Does NRHC Constitute Expression?

To date, the Supreme Court of Canada has not ruled on whether NRHC or any other form of scientific or medical research constitutes "expression" under s. 2(b) of the Charter. (9) In general terms, however, the Supreme Court has defined "expression" to include any activity which "conveys or attempts to convey meaning" and which is "non-violent." (10) The Court has taken this broad, content-neutral approach to the s. 2(b) right because of the Court's understanding that freedom of expression is constitutionally protected for the purpose of allowing people to seek and attain truth, to participate in "social and political decision-making", and to pursue "individual self-fulfilment and human flourishing."" As long as communicative activity relates to one of these underlying principles, the Supreme Court has held that even expression of little moral value, such as hate propaganda (12) and pornography (13), is protected under s. 2(b). Given these broad, content-neutral parameters for freedom of expression, it appears that NRHC would fall within s. 2(b)'s protection unless:

* NRHC is an non-communicative activity; or

* NRHC is an activity which is violent.

According to the s. 2(b) test established by the Supreme Court of Canada, the moral worth or value of NRHC or the content of any messages conveyed by NRHC should not be a consideration in determining whether the NRHC Ban infringes on freedom of expression. …