Constitutional Law – Division of Powers –
Federal Jurisdiction Over Criminal Law – Provincial
Jurisdiction over Property and Civil Rights
On December 22, 2010, the Supreme Court of Canada rendered a
divided 4-4-1 decision in Reference re Assisted Human
Reproduction Act. At issue was whether the impugned
provisions, sections 8 to 19, 40 to 53, 60, 61 and 68 of the
Assisted Human Reproduction Act, S.C. 2004, c.2, exceeded
Parliament's authority to enact criminal law under s. 91(27) of
the Constitution Act, 1867. The impetus for the
legislation in question was the 1989 Royal Commission on New
Reproductive Technologies (the "Baird Commission"), a
report which made recommendations for federal legislation to
address the concerns about certain practices in the field of
assisted human reproduction. While conceding that the legislation
contained certain provisions that were valid criminal law, the
Attorney General of Quebec challenged the bulk of the legislation
as being health legislation in pith and substance and encroaching
on provincial jurisdiction. The Quebec Court of Appeal held that
the impugned sections were not valid criminal law as their pith and
substance, i.e. their real character, was the regulation of medical
practice and research in relation to assisted reproduction.
At the Supreme Court, Chief Justice McLachlin, joined by Binnie,
Fish and Charron JJ. would have upheld the entire legislation as
valid criminal law. Lebel and Deschamps JJ. joined by Abella and
Rothstein JJ., would have struck the entire legislation down after
finding the impugned provisions were in pith and substance a matter
of health law. In the end, Justice Cromwell decided the difference
and allowed the appeal in part.
The first question raised was whether the statutory scheme is a
valid exercise within the scope of federal criminal law power under
s. 91(27) of the Constitution Act, 1867. There are three
requirements of a valid criminal law: prohibition, backed by a
penalty, with a criminal law purpose.
The court split on the issue of the pith and substance of the
legislation. According to the Chief Justice, the dominant purpose
and effect of the legislative scheme is to prohibit practices that
would undercut moral values, produce public health evils and
threaten security of donors, donees, and persons conceived by
assisted reproduction. Parliament may validly regulate in its
criminal legislation to target a legitimate criminal law purpose,
with the incidental effect of producing beneficial practices by
prohibiting reprehensible conduct. This does not render the law
unconstitutional. If the legislative scheme is a valid exercise of
federal power but some of its provisions are invalid, the invalid
provisions can be severed to leave the remaining provisions
According to Lebel and Deschamps JJ., the Act has the two-fold
purpose of: 1) prohibition of reprehensible practices; and, 2)
promotion of beneficial practices. The impugned provisions
regulated assisted human reproduction as a health service. The
Baird Commission report is evidence of Parliament's intent to
impose national medical standards, rather than uphold morality
based on a reasoned apprehension of harm. In their view, the
provisions of the Act which regulate human reproduction and
research activities do not fall under the federal criminal law
power, but under the provincial jurisdiction over hospitals,
property and civil rights, and matters of a merely local nature.
Justice Cromwell held that the impugned provisions regulate
virtually every aspect of research and practice of assisted human
reproduction. To that end, sections 10, 11, 13, 14 to 18, 40(2),
(3), (3.1), (4) and (5), sections 44(2) and (3) exceed the
legislative authority of Parliament. However, he held that sections
8, 9 and 12 prohibited negative practices associated with assisted
reproduction (such as donor consent and reimbursement for medical
surrogacy expenses) and thus upheld them as valid criminal law.
Sections 40(1), (6) and (7), 41 to 43, 44(1) and (4) are provisions
implementing s. 12, and are thus constitutional. Sections 45 to 53,
60, 61 and 68 are constitutional provisions as they relate to
inspection, enforcement and offences provisions.
This decision has been a long-awaited ruling on the
constitutionality of the impugned provisions in the Assisted
Human Reproduction Act. With many provisions of the
legislation struck, it would be interesting to see how Parliament
responds to regulate reproductive technologies in the future.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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