January 17, 2011
Archbishop Richard Smith

Archbishop Richard Smith


OTTAWA — A deeply divided Supreme Court of Canada has delivered an opinion that could pave the way for transgenic research combining human genomes with those of other species.

“It’s a gross affront to human dignity, that kind of experiment,” said Edmonton Archbishop Richard Smith, vice-president of the Canadian Conference of Catholic Bishops (CCCB).

“It’s not a matter of health care but a fundamental issue of human dignity that must rest on national law.”

The Dec. 22 decision split 4-4-1 also leaves a legal void that could lead to the uncontrolled destruction of human life as embryos. At the best, it may result in a patchwork of varying provincial regulations.

“We’re talking about a fundamental question of life itself and dignity of human life, this is a consideration that transcends provincial and national boundaries,” said Smith.

The court’s opinion was a response to a reference from the Province of Quebec that questioned where sections of the 2004 Assisted Human Reproduction Act violated provincial jurisdiction and were therefore unconstitutional.


The Quebec Court of Appeal had ruled aspects of the act were health matters under provincial control.

Ottawa lawyer Bill Sammon, who represented the CCCB in the intervention, called the decision “troubling.”

“Given the nature of the issue involved it was appropriate to have a national standard,” Sammon said.


“When you are dealing with a new and emerging area where we don’t know all the consequences and can’t control all the consequences, it seems to me that it’s a matter the federal government can legislate on,” he said.

Though four justices, in a decision written by Chief Justice Beverley McLachlin, agreed the contested sections of the act properly fell under the federal power over criminal law, four others argued they were health matters under provincial jurisdiction. Justice Thomas Cromwell agreed mostly with the latter four.

The CCCB intervened jointly with the Evangelical Fellowship of Canada (EFC) when the court heard arguments in April 2009.

In their joint intervention of April 2009, the CCCB and the EFC argued assisted human reproduction is not merely a health matter but one involving “the common good, the sanctity of human life, and the protection of the vulnerable.”

They also argued for control of biotechnology because of the broad moral, ethical and social implications, including the “serious potential to devalue human life and to undermine the principles of human dignity.”


EFC legal counsel and vice-president Don Hutchinson called the Dec. 22 court ruling “regrettable.”

“The federal government has to move quickly to criminalize transgenics and genetic manipulation and the destruction of human embryos under certain conditions,” Hutchinson told journalists.

McLachlin’s decision echoed the concerns raised by both the CCCB and the EFC.

She wrote that “assisted reproduction raises weighty moral concerns.”

“The creation of human life and the processes by which it is altered and extinguished, as well as the impact this may have on affected parties, lie at the heart of morality,” she said.

“Parliament has a strong interest in ensuring that basic moral standards govern the creation and destruction of life, as well as their impact on persons like donors and mothers.”

“Taken as a whole, the act seeks to avert serious damage to the fabric of our society by prohibiting practices that tend to devalue human life and degrade participants,” McLachlin said.