Mr. Justice Bastarache speaks on SCC’s decision in the Schmeiser case
Duke University’s The Chronicle reports that the Honourable Mr. Justice Michel Bastarache, of the Supreme Court of Canada, criticized that court for the 2004 decisions in the Monsanto Canada Inc. v. Schmeiser case, which he said implies that a higher life form is patentable.
Duke University School of Law held an ABA Animal Law Conference over the weekend which featured numerous speakers and group sessions for lawyers and scientists to explore and discuss the evolution and development of laws relating to the use of animals in bioengineering. Mr. Justice Bastarache was one of the speakers.
Mr. Justice Bastarache, along with Iacobucci, Arbour and LeBel JJ., dissented in the Schmeiser case wherein the Supreme Court ruled that genes and cells are patentable subject matter, but which also confirmed its earlier ruling (in the Harvard Mouse case) that higher life forms cannot be patented [para. 21]. The majority in the Schmeiser case ruled that Mr. Schmeiser infringed a patent with claims to genes and cells, but having no claims to higher life forms such as the canola plant, by “using” the patented seeds to grow the higher life form (i.e. the canola plants) [para. 97].
What is interesting is that, in Canada, judges have traditionally declined to speak out in public on anything relating to substantive legal issues; so as to better assure their independence. In fact, many still think it unwise for judges to speak except through their judgments. Others, however, advocate freedom to speak out even where there is no necessity, arguing that there is much to gain from improving public understanding of the task judges face and how they go about it. See the remarks of the Right Honourable Beverley McLachlin, Chief Justice of the Supreme Court of Canada, in her speech entitled The Role of Judges in Modern Society.
As such, I think it very interesting that Mr. Justice Bastarache decided to comment on his views surrounding the patentability of higher life forms in a forum outside of dissent in the Schmeiser case. I would have liked to have been there.