Ms Cindy Wasser:

I can provide a brief but perhaps very boring history for all members on this, although people like me find it very interesting and sexy to speak about constitutional law. It is my favourite interest in life.

The highest powers are given to the federal government in Ottawa, and the provinces, to connect and become one country way back, decided they needed to keep some authority and power themselves. Those were basically over cultural geographical issues because Canada is so vast from east to west. They were granted authority to legislate in areas related to this, such as vital statistics and birth registration. The federal government kept authority to legislate over areas that would have great national importance, such as criminal law, taxation and, in this area, overall health. We have universal healthcare that means everyone living in Canada is entitled to healthcare, but it is the provinces, geographically, that implement that process. We would have insurance based on the province.

These sometimes mesh, and when the areas overlap, everyone fights as children and it ends up in the Canadian Supreme Court with constitutional challenges. It is a lot more complicated than that but we had a number of rulings over the years. Many years ago, when I had the privilege of graduating from law school, the then Prime Minister Trudeau - the father of the current Prime Minister Trudeau - brought home our constitution from the United Kingdom and implemented a charter of rights, which became our law in 1985.

Under the charter of rights, there are sacrosanct provisions stipulating we have certain freedoms. The charter was meant to be written somewhat vaguely in some areas, purposely so it would be considered the tree of life. It was to grow. The charter is a growing thing. Section 7, on the right to life and liberty of all Canadians, begat a course of constitutional challenges. I refer to challenges where anyone discriminated against race, religion or sexual orientation. A government could claim in its defence that its position was justified. A common example concerns freedom of speech, which is challenged so people do not have the right to scream “Fire” in a crowded theatre or aeroplane, for example. The government kept an overreaching power called the power of peace, order and good government, which we call POGG, to allow it to make emergency orders, which it has rightly been using throughout Covid. Under those rules, the federal government has the authority to legislate with immigration and citizenship authorities regarding who is a Canadian.

The original Act stated one had to establish a genetic link as a Canadian to one's child, but because of the conditions that developed regarding surrogacy abroad - this issue was not contemplated when the laws were written - the government thought it was time to do a review, bearing in mind that the charter is a living thing. It is hard for the government to find the time to review old laws but Covid really lit a match under everybody and got it moving. One of our great silver linings was that we updated a number of our archaic laws. Once it was established that a genetic link was no longer required at federal level across countries, the provincial legislation stating it was had less authority. Since the provincial powers have less authority than the federal government, it created a problem of constitutional jurisdiction. The provinces could justify their discrimination only with a good reason. It is not unreasonable to discriminate. If they wish to argue the challenge, they will have to provide solid evidence to maintain the efficacy of discrimination concerning genetic links. That will be difficult to do for a province when the federal government has said it is a matter of parentage intention and not genetics and when every other province has changed its law. How the provincial position will be justified remains to be seen. My guess is that once the documents are filed, those concerned will say they are not mounting a challenge, and thus the two provinces will get around to changing the legislation. I do not think they maintain their position as a value; I think it is about time and the capacity to change it because Covid affected every provincial government as well as the federal government. Sadly, it is taking time for things to come around.