Thank you, Mr. Cooper.
As a point of clarification, I don't think the chief justice's opinion in the Assisted Human Reproduction Act reference is correctly described as a dissent on some aspects of the decision. There were three separate opinions. I think the most important conclusion the court reached in the case was upholding the prohibited activities provisions of the act, but striking down the regulatory provisions of the act, the licensing scheme, what the court referred to as the detailed or minute regulation of the delivery of assisted reproductive services.
That's the key distinction in the case. The court upheld the prohibited activities provisions. It struck down the detailed regulation through licensing scheme, and other measures.
I think it's important to refer to her opinion, as you have it. It is not a dissent in all aspects. Together with Justice Cromwell's decision, it made up the majority for upholding the prohibited activities sections.
I don't understand the objection, frankly, to sections 3 through 7 on the grounds that they're not seeking to promote public health, which is one of the legitimate purposes of the criminal law power. It seems clear that the ultimate objective is to encourage people to undergo genetic testing because it has great value from the point of view of their health and our health care system as a whole. It also seems clear that we're concerned they will be discouraged from doing so if they don't have control over when to undergo genetic testing and what happens with their results.
The arguments against it remind me very much of some of the arguments that were made by the tobacco industry in the RJR-MacDonald case. The Tobacco Act prohibits advertising and other marketing practices related to the sale of tobacco products. The argument was made, “That's not targeting a social evil. What's evil about advertising? It's a lawful product. We're just seeking to promote it, and therefore, it falls outside the criminal law power.”
What the court said was that it's legitimate for Parliament to consider the various ways of promoting public health, and that given the addictive nature of tobacco products, it's very difficult to target consumption itself, so it would instead prohibit advertising and other marketing practices in an effort to deter the consumption of tobacco in the interest of promoting health.
I think what's going on with sections 3 through 7 is something very similar. Regarding the practices that can deter people from undergoing genetic testing and benefiting from the amazing amount of information one can obtain through genetic testing, which is related to taking preventative measures regarding health care and other health benefits, we believe we have to deter those practices in order to promote public health, just as we had to prohibit tobacco advertising for similar reasons.