Reference re Assisted Human Reproduction Act

Reference re Assisted Human Reproduction Act
Collection
Supreme Court Judgments
Date
2010-12-22
Neutral citation
2010 SCC 61
Report
[2010] 3 SCR 457
Case number
32750
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall; Cromwell, Thomas Albert
On appeal from
Quebec
Subjects
Constitutional law
Notes
SCC Case Information: 32750
Decision Content
SUPREME COURT OF CANADA
Citation: Reference re Assisted Human Reproduction Act ,
2010 SCC 61, [2010] 3 S.C.R. 457
Date: 20101222
Docket: 32750
Between:
Attorney General of Canada
Appellant
and
Attorney General of Quebec
Respondent
- and -
Attorney General of New Brunswick,
Attorney General for Saskatchewan,
Attorney General of Alberta, Michael Awad,
Canadian Conference of Catholic Bishops
and Evangelical Fellowship of Canada
Interveners
Official English Translation: Reasons of LeBel and Deschamps JJ.
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 156)
Joint Reasons for Judgment:
(paras. 157 to 281)
Reasons for Judgment:
(paras. 282 to 294)
McLachlin C.J. (Binnie, Fish and Charron JJ. concurring)
LeBel and Deschamps JJ. (Abella and Rothstein JJ. concurring)
Cromwell J.
Reference re Assisted Human Reproduction Act , 2010 SCC 61, [2010] 3 S.C.R. 457
Attorney General of Canada Appellant
v.
Attorney General of Quebec Respondent
and
Attorney General of New Brunswick,
Attorney General for Saskatchewan,
Attorney General of Alberta, Michael Awad,
Canadian Conference of Catholic Bishops
and Evangelical Fellowship of Canada Interveners
Indexed as: Reference re Assisted Human Reproduction Act
2010 SCC 61
File No.: 32750.
2009: April 24; 2010: December 22.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal for quebec
Constitutional law ― Division of powers ― Criminal law ― Assisted reproduction ― Whether ss. 8 to 19, 40 to 53, 60, 61 and 68 of Assisted Human Reproduction Act, S.C. 2004, c. 2 , exceed legislative authority of Parliament under s. 91(27) of Constitution Act, 1867 .
In 1989, the federal government established the Royal Commission on New Reproductive Technologies (the “Baird Commission”) to study assisted human reproduction. In its report, the Baird Commission expressed concern about certain practices in the field and pressed for legislation. Between 1993 and 1995, the federal government consulted with the provinces, the territories and independent groups for advice on the issue, and the result was the passage of the Assisted Human Reproduction Act in 2004. The Act contains prohibitions and other provisions designed to administer and enforce them. It is set up as follows:
(1) Sections 5 to 9 prohibit human cloning, the commercialization of human reproductive material and the reproductive functions of women and men, and the use of in vitro embryos without consent. (2) Sections 10 to 13 prohibit various activities unless they are carried out in accordance with regulations made under the Act, under licence and in licensed premises. These “controlled activities” involve manipulation of human reproductive material or in vitro embryos, transgenic engineering and reimbursement of the expenditures of donors and surrogate mothers. (3) Sections 14 to 19 set up a system of information management related to assisted reproduction. (4) Sections 20 to 39 establish the Assisted Human Reproduction Agency of Canada. (5) Sections 40 to 59 charge the Agency with administering and enforcing the Act and regulations, and authorize it to issue licences for certain activities related to assisted reproduction. (6) Sections 60 and 61 provide for penalties, (7) ss. 65 to 67 authorize the promulgation of regulations, and (8) s. 68 gives the Governor in Council power to exempt the operation of certain provisions if there are equivalent provincial laws in force that cover the field.
The Attorney General of Quebec accepted that some of the provisions were valid criminal law, but challenged the constitutionality of the balance of the Act in a reference to the Quebec Court of Appeal. According to the Attorney General of Quebec, ss. 8 to 19, 40 to 53, 60, 61 and 68 are attempts to regulate the whole sector of medical practice and research related to assisted reproduction, and are ultra vires the federal government. The Quebec Court of Appeal held that the impugned sections were not valid criminal law since their pith and substance was the regulation of medical practice and research in relation to assisted reproduction.
Held: The appeal should be allowed in part.
Sections 8, 9, 12, 19 and 60 of the Act are constitutional.
Sections 10, 11, 13, 14 to 18, 40(2), (3), (3.1), (4) and (5), and 44(2) and (3) exceed the legislative authority of the Parliament of Canada under the Constitution Act, 1867 .
Sections 40(1), (6) and (7), 41 to 43, 44(1) and (4), 45 to 53, 61 and 68 are constitutional to the extent that they relate to constitutionally valid provisions.
Per McLachlin C.J. and Binnie, Fish and Charron JJ.: The Act is essentially a series of prohibitions, followed by a set of subsidiary provisions for their administration. While the Act will have beneficial effects and while some of its effects may impact on provincial matters, neither its dominant purpose nor its dominant effect is to set up a regime that regulates and promotes the benefits of artificial reproduction. The fact that the Baird Commission may have referred to positive aspects of assisted reproduction technology in its report does not establish that these benefits were the focus of Parliament’s efforts. Furthermore, while the Act employs both a penal and regulatory form, Parliament may validly employ regulations as part of a criminal law provided it targets a legitimate criminal law purpose.
Here, the matter of the statutory scheme, viewed as a whole, is a valid exercise of the federal power over criminal law. The dominant purpose and effect of the legislative scheme is to prohibit practices that would undercut moral values, produce public health evils, and threaten the security of donors, donees, and persons conceived by assisted reproduction. While this initiative necessarily touches on provincial jurisdiction over medical research and practice, these fields are the subject of overlapping federal and provincial jurisdiction. Parliament has a strong interest in ensuring that basic moral standards govern the creation and destruction of life, as well as their impact on persons like donors and mothers. The Act seeks to avert serious damage to the fabric of our society by prohibiting practices that tend to devalue human life and degrade participants. Overlapping with the morality concerns are concerns for public health and security which may be properly targeted by criminal law. These are valid criminal law purposes.
The prohibitions in ss. 8 to 13 come within the scope of the federal criminal law power and are valid criminal law. The provisions are related to ss. 5 to 7, which are conceded to be valid criminal law. Section 8 prohibits the use of reproductive material for the artificial creation of embryos, unless the donor has consented in accordance with the regulations. This relates to the fundamental importance ascribed to human autonomy. Section 9 prohibits persons from obtaining reproductive material from underage donors, except for the purpose of preserving the sperm or ovum or for the purpose of creating a human being that the person reasonably believes will be raised by the donor. This provision seeks to protect vulnerable youth from exploitation and undue pressure. It is an absolute prohibition like ss. 5 to 7, without any accompanying regulations.
Sections 10 and 11 buttress the prohibitions in s. 5. In essence, s. 10 prohibits dealing with human reproductive material without a licence. It targets health risks and moral concerns related to the artificial creation of human life. Section 11 prohibits transgenic engineering unless permitted by the regulations and performed by a licence‑holder. By using a selective prohibition to broaden the absolute prohibitions in s. 5 on the creation of chimeras and hybrid entities, s. 11 recognizes that mixing human and non‑human genetic material can raise moral concerns long before such experiments result in the creation of a new life form. Working together, licensing and regulation provide for enforceable, tailored prohibitions, which leave the provinces free to regulate the beneficial aspects of genetic manipulation.
Section 12 prohibits reimbursement of donors and surrogate mothers except in accordance with the regulations and with a licence. This provision is rooted in the same concerns as ss. 6 and 7, which prohibit the commercialization of reproduction. Section 13 is an absolute prohibition on the performance of licensed activities in unlicensed premises, backed by a penalty. The artificial creation of human life in clandestine facilities would pose serious health risks to those involved. Ensuring that the facilities of assisted human reproduction are properly supervised also relates to Parliament’s moral concerns.
Together with ss. 5 to 7, ss. 8 to 13 form a valid prohibition regime that is consistent with the objectives of the Act as a whole. These provisions contain prohibitions, backed by penalties, and are directed in pith and substance to valid criminal law goals. Although some of the prohibitions impact on the regulation of medical research and practice, the impact is incidental to the legislation’s dominant criminal law purpose and limited to those ends. Furthermore, subject to the Act’s prohibitions, the provinces are free to enact legislation promoting beneficial practices in the field of assisted reproduction.
While not criminal law in pith and substance, the administrative, organizational, and enforcement provisions in ss. 14 to 68 are integrated into the prohibition regime set up by ss. 5 to 13. Some of these ancillary provisions are criminal in nature and do not significantly intrude on provincial powers, such as the provisions for enforcement (ss. 45 to 59), promulgation of regulations (ss. 65 to 67), and imposition of penalties (ss. 60 and 61). The organizational provisions in ss. 20 to 39 are also essentially part of the criminal prohibitions in ss. 5 to 13. The information management provisions in ss. 14 to 19 and the administrative provisions in ss. 40 to 44 represent a minor incursion on provincial powers. They generally fall under the provincial powers over property and civil rights and matters of a merely local or private nature. However, since these are very broad heads of power, the intrusion is less serious. Moreover, the provisions do not purport to create a substantive right, but function merely to assist in enforcing the Act. Without the prohibition regime in ss. 5 to 13, they would serve no purpose. Furthermore, the provisions are designed to supplement, rather than exclude, provincial legislation. Finally, Parliament has a history of administering and enforcing statutes addressing issues of morality, health and security by way of licensing bodies. Since the ancillary provisions constitute a minor incursion on provincial jurisdiction, the rational and functional connection test should be applied to determine whether they are valid under the ancillary powers doctrine.
Sections 14 to 68 support the legislative scheme in a way that is rational in purpose and functional in effect. Sections 14 to 19 define standards of consent and privacy, charge the Agency with managing personal health information, and establish rules for the medical profession. These provisions harness the flow of information, first to deal appropriately with consent and related privacy issues, and second to facilitate compliance with the Act. Sections 40 to 44 relate to the issuance of licences for controlled activities, and are directly related to prohibiting harmful and immoral conduct while excepting beneficial activity. The provisions relating to inspection and enforcement found in ss. 45 to 59 are also part and parcel of the scheme prohibiting immoral and potentially harmful uses of human reproductive material. Sections 60 and 61, which provide penal sanctions, are necessary for criminal law provisions. Finally, s. 68 permits the Governor in Council to declare provisions of the Act inapplicable in a province where a provincial law contains similar provisions, pursuant to an agreement with that province. This provision recognizes the fact that assisted human reproduction is an area of overlapping jurisdiction, and allows provincial schemes to govern exclusively where provincial laws are equivalent to the federal scheme. The ancillary provisions are thus valid under the ancillary powers doctrine.
Per LeBel, Deschamps, Abella and Rothstein JJ.: Sections 8 to 19, 40 to 53, 60, 61 and 68 of the Act exceed the legislative authority of the Parliament of Canada under the Constitution Act, 1867 . The provisions of the Act concerning controlled activities, namely those involving assistance for human reproduction and related research activities, do not fall under the criminal law power, but belong to the jurisdiction of the provinces over hospitals, property and civil rights, and matters of a merely local nature.
The first step of the constitutional analysis involves identifying the pith and substance (purpose and effects) of the impugned provisions. Those provisions must be considered separately before considering their connection with the other provisions of the Act, since the purposes and effects of a statute’s many provisions can be different. It is also important to identify the pith and substance of the impugned provisions as precisely as possible, since a vague characterization could lead not only to the dilution of and confusion with respect to the constitutional doctrines, but also to an erosion of the scope of provincial powers as a result of the federal paramountcy doctrine. If the pith and substance of the provisions falls within the jurisdiction of the other level of government, it is necessary first to assess the extent of the overflow in light of the purpose of the provisions and to weigh their effects. It must then be determined whether the provisions form part of an otherwise valid statute. Finally, the impugned provisions must be considered in the context of the entire statute in order to determine whether they are sufficiently integrated with the other provisions of the otherwise valid statute. This review must make it possible to establish a relationship between the extent of the jurisdictional overflow and the importance of the provisions themselves within the statute of which they form a part. There are two applicable concepts: functionality and necessity. The more necessary the provisions are to the effectiveness of the rules set out in the part of the statute that is not open to challenge, the greater the acceptable overflow will be. Care must be taken to maintain the constitutional balance of powers at all stages of the constitutional analysis.
In this case, the purpose and the effects of the impugned provisions relate to the regulation of a specific type of health services provided in health‑care institutions by professionals to individuals who for pathological or physiological reasons need help to reproduce. Their pith and substance is the regulation of assisted human reproduction as a health service. In the Act, substantive and formal distinctions are drawn between prohibited activities and controlled activities. This dichotomy appears clearly from Parliament’s statement of principles in s. 2 and from the titles used in the Act itself. Furthermore, whereas the category of controlled activities concerns services that are available to persons in need of assistance because of an inability to reproduce and that are used by professionals who provide the required help, the activities that are prohibited completely do not involve techniques used in assisted human reproduction. The impugned provisions do not have the same purpose as the unchallenged provisions. They were enacted to establish mandatory national standards for assisted human reproduction. As can be seen from the legislative history, this was how Parliament believed that the benefits of assisted human reproductive technologies and related research for individuals, for families and for society in general could be most effectively secured. When it decided to regulate what are called “controlled” activities, Parliament took into account the concerns expressed about the ethical and moral aspects and the safety of assisted reproductive activities. And in so doing it intended to implement a recommendation from the Baird Commission in order to ensure that Canadians could have access to assisted reproduction services. Regarding the activities that are prohibited completely, Parliament responded to what was presented to it as a consensus that they are reprehensible. Those prohibitions are therefore intended to prevent activities and the use of technologies that do not form part of the process of genetic research or assisted human reproduction.
A review of the effects of the provisions of the Act confirms that the impugned scheme seriously affects the practice of medicine and overlaps or conflicts with many Quebec statutes and regulations. The impugned provisions have a direct impact on the relationship between physicians called upon to use assisted reproductive technologies, donors, and patients. Section 8 sets out rules on consent for the removal and use of human reproductive material, even though rules on consent already exist in the Civil Code of Québec. Similarly, s. 12 implicitly authorizes surrogacy contracts, whereas the Code provides that such contracts are null. Moreover, ss. 10, 11, 13, 40(1) and 42 require researchers and physicians who engage in activities related to treatments for infertility to obtain licences from the Federal Agency even though other Quebec legislation already requires them to obtain permits. Sections 14 to 19 establish a system for the management and disclosure of information relating to assisted reproductive activities, but Quebec already has its own rules governing the use of assisted reproductive technologies by health‑care institutions and physicians, and the disclosure of confidential information is also subject to provisions of several Quebec statutes and regulations. Finally, the oversight by the Federal Agency under ss. 45 to 53 duplicates the oversight provided for in other Quebec statutes.
The impugned provisions, viewed from the perspective of their pith and substance, are not connected with the federal criminal law power. The criminal law power does not give Parliament an unconditional right to take action to protect morality, safety and public health. To be connected with this federal head of power, a law or a provision must (1) suppress an evil, (2) establish a prohibition and (3) accompany that prohibition with a penalty. It is not enough to identify a public purpose that would have justified Parliament’s action. That purpose must also involve suppressing an evil or safeguarding a threatened interest. The evil must be real and the apprehension of harm must be reasonable. This requirement constitutes an essential element of the substantive component of the definition of criminal law, and it applies with equal force where the legislative action is based on morality. Recourse to the criminal law power cannot be based solely on concerns for efficiency or consistency, as such concerns, viewed in isolation, do not fall under the criminal law. In the case at bar, although a connection can be made between the pith and substance of the absolute prohibitions and a risk of harm, the same cannot be said of the regulation of the other activities and of the regulatory scheme that is established in the Act. Nothing in the record suggests that the controlled activities should be regarded as conduct that is reprehensible or represents a serious risk to morality, safety or public health. A review of all the work of the Baird Commission and the evidence confirms that, where the impugned provisions are concerned, Parliament’s action did not have the purpose of upholding morality and was not based on a reasoned apprehension of harm, but was instead intended to establish national standards for assisted human reproduction.
The impugned provisions represent an overflow of the exercise of the federal criminal law power. Their pith and substance is connected with the provinces’ exclusive jurisdiction over hospitals, property and civil rights, and matters of a merely local nature. The impugned provisions affect rules with respect to the management of hospitals, since Parliament has provided that the Act applies to all premises in which controlled activities are undertaken. Furthermore, the fact that several of the impugned provisions concern subjects that are already governed by the Civil Code of Québec and other Quebec legislation is an important indication that in pith and substance, the provisions lie at the very core of the provinces’ jurisdiction over civil rights and local matters.
Given the extent of the overflow in this case, it cannot be found that an ancillary power has been validly exercised unless the impugned provisions have a relationship of necessity with the rest of the statute. However, the scheme established by the prohibitory provisions does not depend on the existence of the regulatory scheme. As well, it is clear from the legislative history that the prohibitory provisions were in fact always considered to stand alone and that the regulation of certain activities did not depend on the prohibition of other activities. It must be inferred from this that in setting up the regulatory scheme, Parliament’s intention was to enact legislation in relation to a matter outside its jurisdiction.
The provisions pursuant to which the Federal Agency is responsible for implementing the regulatory scheme are purely ancillary and have no independent purpose. They are invalid. Furthermore, the constitutional defects are not remedied by s. 68, which authorizes the Governor in Council to declare certain provisions inapplicable if the federal minister and the government of a province so agree, as the jurisdictional overflow remains just as great as long as regulation of the activities in question remains dependent on the will of the federal government. Finally, if the principle of subsidiarity were to play a role in the case at bar, it would favour connecting the rules in question with the provinces’ jurisdiction over local matters, not with the criminal law power.
Per Cromwell J.: The matter of the impugned provisions is regulation of virtually every aspect of research and clinical practice in relation to assisted human reproduction. The matter of the challenged provisions is best classified as relating to the establishment, maintenance and management of hospitals, property and civil rights in the province and matters of a merely local or private nature in the province. Sections 10, 11, 13, 14 to 18, 40(2), (3), (3.1), (4) and (5), and 44(2) and (3) exceed the legislative authority of the Parliament of Canada under the Constitution Act, 1867 . However, ss. 8, 9 and 12 in purpose and effect prohibit negative practices associated with assisted reproduction and fall within the traditional ambit of the federal criminal law power. Similarly, ss. 40(1), (6) and (7), 41 to 43, and 44(1) and (4) set up the mechanisms to implement s. 12 and, to the extent that they relate to provisions of the Act which are constitutional, were properly enacted by Parliament. Sections 45 to 53 , to the extent that they deal with inspection and enforcement in relation to constitutionally valid provisions of the Act, are also properly enacted under the criminal law power. The same is true for ss. 60 and 61 , which create offences. Section 68 is also constitutional, although its operation will be limited to constitutional sections of the Act. Given that the other provisions establishing the Assisted Human Reproduction Agency of Canada are not contested, there is no constitutional objection to s. 19 .
Cases Cited
By McLachlin C.J.
Referred to: General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641; Kirkbi AG v. Ritvik Holdings Inc., 2005 SCC 65, [2005] 3 S.C.R. 302; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146; Ward v. Canada (Attorney General), 2002 SCC 17, [2002] 1 S.C.R. 569; Reference re Employment Insurance Act (Can.), ss. 22 and 23, 2005 SCC 56, [2005] 2 S.C.R. 669; Attorney General of Canada v. Canadian National Transportation Ltd., [1983] 2 S.C.R. 206; Attorney‑General for Alberta v. Attorney‑General for Canada, [1947] A.C. 503; Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3; Reference re Anti‑Inflation Act, [1976] 2 S.C.R. 373; Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783; R. v. Morgentaler, [1993] 3 S.C.R. 463; R. v. Furtney, [1991] 3 S.C.R. 89; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; R. v. Hydro‑Québec, [1997] 3 S.C.R. 213; Rothmans, Benson & Hedges Inc. v. Saskatchewan, 2005 SCC 13, [2005] 1 S.C.R. 188; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Ross v. Registrar of Motor Vehicles, [1975] 1 S.C.R. 5; In re The Board of Commerce Act, 1919, and The Combines and Fair Prices Act, 1919, [1922] 1 A.C. 191; Proprietary Articles Trade Association v. Attorney‑General for Canada, [1931] A.C. 310; Reference re Validity of Section 5(a) of the Dairy Industry Act, [1949] S.C.R. 1; Boggs v. The Queen, [1981] 1 S.C.R. 49; R. v. Wetmore, [1983] 2 S.C.R. 284; R. v. Malmo‑Levine, 2003 SCC 74, [2003] 3 S.C.R. 571; R. v. Butler, [1992] 1 S.C.R. 452; Russell v. The Queen (1882), 7 App. Cas. 829; Schneider v. The Queen, [1982] 2 S.C.R. 112; Morgentaler v. The Queen, [1976] 1 S.C.R. 616; 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), 2001 SCC 40, [2001] 2 S.C.R. 241; Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), 2004 SCC 54, [2004] 3 S.C.R. 152; Siemens v. Manitoba (Attorney General), 2003 SCC 3, [2003] 1 S.C.R. 6; Global Securities Corp. v. British Columbia (Securities Commission), 2000 SCC 21, [2000] 1 S.C.R. 494; Reference re Goods and Services Tax, [1992] 2 S.C.R. 445; Papp v. Papp, [1970] 1 O.R. 331; OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2; Lord’s Day Alliance of Canada v. Attorney General of British Columbia, [1959] S.C.R. 497.
By LeBel and Deschamps JJ.
Referred to: Reference re Secession of Quebec, [1998] 2 S.C.R. 217; 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), 2001 SCC 40, [2001] 2 S.C.R. 241; Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; R. v. Morgentaler, [1993] 3 S.C.R. 463; Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3; Siemens v. Manitoba (Attorney General), 2003 SCC 3, [2003] 1 S.C.R. 6; Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372; Law Society of British Columbia v. Mangat, 2001 SCC 67, [2001] 3 S.C.R. 113; R. v. Furtney, [1991] 3 S.C.R. 89; Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board), [1987] 2 S.C.R. 59; Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161; Reference re Exported Natural Gas Tax, [1982] 1 S.C.R. 1004; Robinson v. Countrywide Factors Ltd., [1978] 1 S.C.R. 753; Attorney‑General for Ontario v. Barfried Enterprises Ltd., [1963] S.C.R. 570; Smith v. The Queen, [1960] S.C.R. 776; Attorney‑General for Ontario v. Attorney‑General for the Dominion, [1896] A.C. 348; Attorney‑General of Ontario v. Attorney‑General for the Dominion of Canada, [1894] A.C. 189; Hodge v. The Queen (1883), 9 App. Cas. 117; Papp v. Papp, [1970] 1 O.R. 331; General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641; Kirkbi AG v. Ritvik Holdings Inc., 2005 SCC 65, [2005] 3 S.C.R. 302; Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783; Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, [2010] 1 S.C.R. 721; In re The Board of Commerce Act, 1919, and The Combines and Fair Prices Act, 1919, [1922] 1 A.C. 191; Proprietary Articles Trade Association v. Attorney-General for Canada, [1931] A.C. 310; Reference re Validity of Section 5(a) of the Dairy Industry Act, [1949] S.C.R. 1; R. v. Butler, [1992] 1 S.C.R. 452; R. v. Malmo‑Levine, 2003 SCC 74, [2003] 3 S.C.R. 571; R. v. Hydro‑Québec, [1997] 3 S.C.R. 213; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Labatt Breweries of Canada Ltd. v. Attorney General of Canada, [1980] 1 S.C.R. 914; R. v. Wetmore, [1983] 2 S.C.R. 284; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; Workmen’s Compensation Board v. Canadian Pacific Railway Co., [1920] A.C. 184; Provincial Secretary of Prince Edward Island v. Egan, [1941] S.C.R. 396; Nova Scotia Board of Censors v. McNeil, [1978] 2 S.C.R. 662; Attorney General for Canada and Dupond v. City of Montreal, [1978] 2 S.C.R. 770; Schneider v. The Queen, [1982] 2 S.C.R. 112; Scowby v. Glendinning, [1986] 2 S.C.R. 226.
By Cromwell J.
Referred to: Chatterjee v. Ontario (Attorney General), 2009 SCC 19, [2009] 1 S.C.R. 624; Attorney General of Canada v. Canadian National Transportation, Ltd., [1983] 2 S.C.R. 206; General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641.
Statutes and Regulations Cited
Act respecting clinical and research activities relating to assisted procreation, R.S.Q., c. A‑5.01.
Act respecting health services and social services, R.S.Q., c. S‑4.2, ss. 9 et seq., 17 et seq., 79 et seq., 339 et seq., 413.2, 414, 437.
Act respecting medical laboratories, organ, tissue, gamete and embryo conservation, and the disposal of human bodies, R.S.Q., c. L‑0.2, s. 31.
Assisted Human Reproduction Act, S.C. 2004, c. 2 .
Assisted Human Reproduction (Section 8 Consent) Regulations, SOR/2007‑137.
Bill C‑6, An Act respecting assisted human reproduction and related research, 3rd Sess., 37th Parl., 2004.
Bill C‑13, An Act respecting assisted human reproduction, 2nd Sess., 37th Parl., 2002.
Bill C‑47, An Act respecting human reproductive technologies and commercial transactions relating to human reproduction, 2nd Sess., 35th Parl., 1996.
Bill C‑56, An Act respecting assisted human reproduction, 1st Sess., 37th Parl., 2001‑2002.
Bill C‑247, An Act to amend the Criminal Code (genetic manipulation), 1st Sess., 36th Parl., 1997.
Bill C‑336, An Act to amend the Criminal Code (genetic manipulation), 1st Sess., 37th Parl., 2001.
Canadian Charter of Rights and Freedoms, s. 1 .
Canadian Environmental Protection Act, R.S.C. 1985, c. 16 (4th Supp.), s. 34(6).
Civil Code of Québec, R.S.Q., c. C‑1991, arts. 10 to 25, 541.
Code of ethics of physicians, R.R.Q., c. M‑9, r. 4.1, ss. 20, 21, 28, 29, 49.
Constitution Act, 1867, ss. 91 , 92 .
Court of Appeal Reference Act, R.S.Q., c. R‑23.
Criminal Code, R.S.C. 1906, c. 146, ss. 207, 303, 306.
Criminal Code, R.S.C. 1927, c. 36, ss. 207, 303, 306.
Criminal Code, R.S.C. 1985, c. C‑46, ss. 52 to 56 , 62 , 156 [rep. S.C. 1980‑81‑82‑83, c. 125, s. 9], 157 [rep. S.C. 1987, c. 24, s. 4], 158 [idem], 207(1)(a), 265.
Criminal Code, S.C. 1953‑54, c. 51, ss. 150, 237.
Criminal Code, 1892, S.C. 1892, c. 29, ss. 179, 271, 272.
Medical Act, R.S.Q., c. M‑9, s. 42.
Professional Code, R.S.Q., c. C‑26.
Authors Cited
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Canada. Discussion Group on Embryo Research. Research on Human Embryos in Canada (Final Report). Ottawa: 1995.
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APPEAL from a judgment of the Quebec Court of Appeal (Gendreau, Chamberland and Rayle JJ.A.), 2008 QCCA 1167, 298 D.L.R. (4th) 712, [2008] R.J.Q. 1551, [2008] Q.J. No. 5489 (QL), 2008 CarswellQue 9848, in the matter of a reference concerning the question whether some sections of the Assisted Human Reproduction Act are ultra vires the Parliament of Canada. Appeal allowed in part.
René LeBlanc, Peter W. Hogg and Glenn Rivard, for the appellant.
Jocelyne Provost and Maude Randoin, for the respondent.
Gaétan Migneault, for the intervener the Attorney General of New Brunswick.
Graeme G. Mitchell, Q.C., for the intervener the Attorney General for Saskatchewan.
Lillian Riczu and Randy Steele, for the intervener the Attorney General of Alberta.
Written submissions only for the intervener Michael Awad.
Written submissions only by William J. Sammon, Don Hutchinson and Faye Sonier for the interveners the Canadian Conference of Catholic Bishops and the Evangelical Fellowship of Canada.
The reasons of McLachlin C.J. and Binnie, Fish and Charron JJ. were delivered by
The Chief Justice —
I. Introduction
[1] Every generation faces unique moral issues. And historically, every generation has turned to the criminal law to address them. Among the most important moral issues faced by this generation are questions arising from technologically assisted reproduction — the artificial creation of human life. Parliament has passed a law dealing with these issues under its criminal law power. The question on appeal is whether this law represents a proper exercise of Parliament’s criminal law power. I conclude that it does.
[2] Since time immemorial, human beings have been conceived naturally. Human beings have sought to enhance this process, to be sure; fertility rites, prayers and various medical and quasi-medical prescriptives to enhance fertility are part of human history. Human beings have also sought to constrain the process, through rules governing sexual conduct and marriage. These rules are deeply embedded in morality, which speaks to our conception of how human beings should behave for their own good and the greater good of society. Through morality, often abetted by the criminal law, society has traditionally found collective answers to reproductive issues. Yet, until recently, the fundamental processes by which new human beings were conceived remained largely beyond technological manipulation.
[3] This changed in the latter part of the 20th century, with the development of technology that allowed ova and sperm to be captured and united to form a zygote outside the human body. Refining the process even further, scientists found ways to disassemble and recombine genetic material within the ovum. Implantation techniques allowed couples and surrogate mothers to carry pregnancies created in a petri dish to term. At the far end of the spectrum lay the possibility of combining animal and human forms or reproducing an individual through cloning.
[4] These new techniques raise important moral, religious and juridical questions. The new questions do not fit neatly within the traditional legal frameworks that have developed in a world of natural conception. These challenges have opened a dialogue between ethicists, religious leaders and the public. Different people have taken different moral views on the issues. Fears have been expressed as to the possibility that some may abuse the new techniques in ways that might damage individuals — both existing and yet to be conceived — and ultimately society. Traditional criminal law imposed no obvious restraints and offered no clear answers to these questions.
[5] It was