That’s Right

A couple of blog posts published over the holidays seem to confirm that two Canadian appellate decisions about which I posted recently are right―not necessarily as a matter of law, about which the posts don’t tell us much―but at least as a matter of policy. I thought they’re worth pointing out.


First, at Concurring Opinions, Gaia Bernstein writes about the unintended consequences of the prohibitions on anonymous sperm or egg donations, which the BC Court of Appeal, in a decision on which I commented hererecently refused to elevate to the rank of a constitutional requirement. According to Prof. Bernstein, her research shows that

three jurisdictions, which prohibited donor gamete anonymity[,] Sweden, Victoria (an Australian state) and the United Kingdom …  share dire shortages in donor gametes accompanied by long wait-lists. The study concluded that although prohibitions on anonymity were not the sole cause of the shortages, these prohibitions definitely played a role in their creation.

Her more recent research looks at “the potential effect of the adoption of prohibitions on anonymity in the United States on the practice of surrogacy.” Because of the peculiarities of the legal regime surrounding surrogacy in the United States, surrogacy is more dependent on donor eggs there than in many other countries. So “[t]he adoption of prohibitions on anonymity in the United States could destabilize the practice of surrogacy in a way that did not occur in other countries that adopted these prohibitions.” (Prof. Bernstein explains why―there’s no point in my reproducing her argument here.)

Now I don’t know whether the legal regime for surrogacy is in Canada, or rather in the various Canadian provinces (I seem to remember from discussions with friends who do know that there might be differences, especially between common law provinces and Québec) is like that of the United States. But what I can tell is that it is another variable that ought to be taken into account when crafting the rules on donor anonymity, and that the process of judicial review, during which such “side” issues are often, perhaps inevitably, obscured. So it is for the better that the issue of anonymity is left to the legislatures. As I wrote in my earlier post, I also think that the law does not require the contrary conclusion.


The second post is by Jonathan Hafetz at Balkinization. Prof. Hafetz writes about a case, The People v. Morales, in which the New York Court of Appeals reversed the convictions for terrorism of members of a gang responsible for a shooting in which a child was killed and another bystander suffered horrible injuries. New York’s law defined terrorism as the commission of one of a range of offences with the “intent to intimidate or coerce a civilian population, influence the policy of a unit of government by intimidation or coercion, or affect the conduct of a unit of government by murder, assassination or kidnapping.” On the face of it, this might include gang violence, but that would be a very broad interpretation and the Court rejected it. As prof. Hafetz writes,

While [treating gang violence as terrorism] might enhance prosecutorial power, it could undermine other law enforcement efforts to reduce gang activity, which often involve a combination of traditional criminal sanctions and gang-prevention programs … At the same time, treating gang violence as terrorism would alter collective understandings of the type of acts—the deliberate and ideologically motivated targeting of the civilian population—viewed as terrorism, potentially diluting the exceptional stigma attached to those acts and undermining public support for anti-terrorism efforts generally.

This suggests that it is well that the Supreme Court of Canada, in its recent decision in R. v. Khawaja, 2012 SCC 69, about which I wrote here, refused to declare unconstitutional the “motive clause” in the Criminal Code’s definition of terrorism, which provides that in order to be considered terrorism, an “act or omission” must be “committed in whole or in part for a political, religious or ideological purpose, objective or cause.” While Mr. Khawaja argued that the motive clause would in effect give excessive powers of ideological surveillance to law enforcement agencies, what it really does is to limit their power by making it impossible to do what the New York prosecutors tried to do and treat “ordinary” criminal violence, however serious, as terrorism. A case such as Morales would simply not have been possible under the Criminal Code―thanks to the “motive clause.” Good thing that the Supreme Court let it stand.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

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