A Constitutional Defence of the Federal Ban on Human Cloning for Research Purposes

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Human Cloning, Research, Freedom of Expression, Charter of Rights and Freedoms, Assisted Human Reproduction Act


Parliament's prohibition on cloning in the Assisted Human Reproduction Act has led to divergent views on the validity of the legislation. This article responds to an article in volume 29, no. 2 of this journal by Barbara Billingsley and Timothy Caulfield, who suggested that the federal ban would likely not survive a Charter challenge. Billingsley and Caulfield argued that scientific experiments are expressive acts, deserving of protection under section 2(b) of the Charter, which guarantees freedom of expression. In their view, both the breadth of the legislative objective and the proportionality of the measure would preclude the courts from finding the ban to be saved under section 1.

Downie, Llewellyn and Baylis challenge Billingsley and Caufield's thesis on a number of grounds. The first is the classification of scientific experiments as expressive acts. Using the criteria for a section 2(b) challenge outlined in Irwin Toy, the authors argue first that the act of experimentation is not an act of expression, and the fact that it produces potentially expressive results is not sufficient to bring it within the protection of the Charter.

The authors then argue that even if the ban is a violation of section 2(b) rights, it is demonstrably justified within the meaning of section 1 of the Charter. The objective of the ban -- to protect the health and safety of the public and to prevent unethical activity -- is pressing and substantial. There is a rational connection between the legislative objective and the ban, such that a ban is necessary to achieve that objective, and the ban impairs freedom of expression as little as is reasonably possible. Finally, the authors argue that the deleterious effects of the ban are balanced by its salutary effects.