A constitutional analysis of the proposed ban on non-reproductive human cloning: An unjustified violation of freedom of expression?

• Author: Billingsley, Barbara
• Position: Canada

1. 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.

2. 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.

3. 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.

   1. Is NRHC an Activity which Attempts to Communicate a Meaning?

      While the Supreme Court of Canada has generally given a very broad definition to expression, the Court has recognized that not every activity will fall within this definition because not all activities are communicative. As an example, the Supreme Court has pointed out that the activity of parking a car would ordinarily not be protected under s. 2(b). If, however, a person parked a car in a particular area for the purposes of protesting a parking restriction, the activity would convey a message and therefore would constitute expression. (14) The question, then, is whether NRHC is an activity which conveys a meaning or message.

      On one hand, NRHC may be seen as a non-communicative activity because the process is devoid of any inherent meaning or ability to convey meaning. This perspective suggests that meaning, in terms of scientific results, may be derived from a completed experiment but that the physical procedure itself does not communicate a message. According to this argument, NRHC becomes expression only when the results of the experiment are written down, verbalized or otherwise disseminated. From this viewpoint, the NRHC Ban does not violate freedom of expression because the prohibition relates only to the physical act of creating a human clone (15) which is distinct from any resulting expressive act. A corollary to this argument is the notion that the NRHC Ban does not prohibit research in particular, but prohibits only one process or experiment which may be related to particular medical or scientific research. In other words, the NRHC Ban does not limit research per se, but only one element of research.

      On the other hand, however, it may be argued that, while NRHC is not always necessarily communicative, this process is inherently communicative when undertaken for the purposes of scientific or medical research (which, presumably, is the case with most NRHC). While recognizing that not all physical processes or activities convey a meaning, this approach acknowledges that research in general, and scientific research in particular, is ordinarily conducted in response to an inquiry: a hypothesis. The physical experiment or activity (in this case, the NRHC process) is undertaken for the specific purpose of resolving the inquiry or testing the hypothesis: in other words, for the purpose of communicating a meaning or a message to the researcher. The experiment conveys this information to the researcher regardless of whether the experiment's results are recorded or disseminated. Further, in the case of scientific or medical experiments, such as NRHC, the messages which a researcher seeks to convey by the physical pr ocess of experimentation arguably advances one or more of the underlying purposes of s. 2(b), such as the pursuit of truth, self-fulfilment and societal advancement. (16)

      Further, by choosing to conduct a particular type of experiment as a means of testing his or her inquiry, a scientist is arguably expressing beliefs or communicating ideas about medical or scientific matters. In this context, the NRHC process or any other scientific experiment is more than a medium of expression: it is part of the scientist's communication of ideas. If, for example, a scientist decides to test his or her hypothesis about cell growth by using only certain types of cells, the scientist may be conveying the message that the hypothesis is applicable only to certain cells, that the use of other types of cells is unethical or immoral, or that the hypothesis is most easily demonstrated by the selected cell group. In short, the experiment or process which a scientist chooses to test his or her hypothesis may itself communicate a message. In the case of NRHC, researchers employing this process may be communicating a belief that NRHC holds the key to curing particular illnesses or ailments.

      In short, although NRHC may not initially present as a communicative activity, the communicative element of this activity becomes readily apparent when NRHC is considered in the appropriate context of scientific or medical research. In any event, even if the NRHC process itself is not communicative, it may be reasonably argued that research processes, like NRHC, are logically inseparable from the obviously expressive activity of recording or disseminating the results of such procedures. Again, the key is to view the NRHC...