Attorney General of Canada Appellant v. Attorney General of Quebec, 2010 SCC 61

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, t he 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. T hese 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 withinspection and enforcement in relation to constitutionally valid provisions of the Act, are also properly enacted under the criminal lawpower. The same is true for ss. 60 and 61, which create offences.

Section 68 is also constitutional, although its operation will be limitedto constitutional sections of the Act. Given that the other provisions establishing the Assisted Human Reproduction Agency of Canadaare 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, (SCC), [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., (SCC), [1983] 2 S.C.R. 206; Attorney-General for Alberta v. Attorney-Generalfor Canada, (UK JCPC), [1947] A.C. 503; Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3;Reference re Anti-Inflation Act, (SCC), [1976] 2 S.C.R. 373; Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1S.C.R. 783; R. v. Morgentaler, (SCC), [1993] 3 S.C.R. 463; R. v.

Furtney, (SCC), [1991] 3 S.C.R. 89;RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1995] 3 S.C.R. 199; R. v. Hydro-Québec, (SCC), [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), (SCC), [1989] 1 S.C.R. 927; Ross v. Registrar of Motor Vehicles, (SCC),[1975] 1 S.C.R. 5; In re The Board of Commerce Act, 1919, and The Combines and Fair Prices Act, 1919, (UK JCPC),[1922] 1 A.C. 191; Proprietary Articles Trade Association v. Attorney-General for Canada, (UK JCPC), [1931] A.C.310; Reference re Validity of

Section 5(

a) of the Dairy Industry Act, (SCC), [1949] S.C.R. 1; Boggs v. The Queen, (SCC), [1981] 1 S.C.R. 49; R. v. Wetmore, (SCC), [1983] 2 S.C.R. 284; R. v. Malmo-Levine, 2003 SCC 74,[2003] 3 S.C.R. 571; R. v. Butler, (SCC), [1992] 1 S.C.R. 452; Russell v. The Queen (1882), 7 App. Cas. 829;Schneider v. The Queen, (SCC), [1982] 2 S.C.R. 112; Morgentaler v. The Queen, (SCC), [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), 2003SCC 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, (SCC), [1992] 2 S.C.R. 445; Papp v. Papp, (ON CA), [1970] 1O.R. 331; OPSEU v. Ontario (Attorney General), (SCC), [1987] 2 S.C.R. 2; Lord’s Day Alliance of Canada v. AttorneyGeneral of British Columbia, (SCC), [1959] S.C.R. 497. By LeBel and Deschamps JJ. Referred to: Reference re Secession of Quebec, (SCC), [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 SCC22, [2007] 2 S.C.R. 3; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2S.C.R. 146; RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1995] 3 S.C.R. 199; R. v. Morgentaler, (SCC), [1993] 3 S.C.R. 463; Friends of the Oldman River Society v. Canada (Minister of Transport), (SCC), [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, (SCC), [1991] 3 S.C.R. 89; Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board), (SCC), [1987] 2S.C.R. 59; Multiple Access Ltd. v. McCutcheon, (SCC), [1982] 2 S.C.R. 161; Reference re Exported Natural Gas Tax, (SCC), [1982] 1 S.C.R. 1004; Robinson v. Countrywide Factors Ltd., (SCC), [1978] 1 S.C.R. 753;Attorney-General for Ontario v. Barfried Enterprises Ltd., (SCC), [1963] S.C.R. 570; Smith v. The Queen, (SCC), [1960] S.C.R. 776; Attorney-General for Ontario v.

Attorney-General for the Dominion, [1896] A.C. 348; Attorney-Generalof 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, (ON CA), [1970] 1 O.R. 331; General Motors of Canada Ltd. v. City National Leasing, (SCC),[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 SCC31, [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 CommerceAct, 1919, and The Combines and Fair Prices Act, 1919, (UK JCPC), [1922] 1 A.C. 191; Proprietary Articles TradeAssociation v. Attorney-General for Canada, (UK JCPC), [1931] A.C. 310; Reference re Validity of

Section 5(

a) of theDairy Industry Act, (SCC), [1949] S.C.R. 1; R. v. Butler, (SCC), [1992] 1 S.C.R. 452; R. v.Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571; R. v. Hydro-Québec, (SCC), [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.), (SCC), [1990] 1S.C.R. 1123; Labatt Breweries of Canada Ltd. v. Attorney General of Canada, (SCC), [1980] 1 S.C.R. 914; R. v.Wetmore, (SCC), [1983] 2 S.C.R. 284; Eldridge v. British Columbia (Attorney General), (SCC),[1997] 3 S.C.R. 624; Workmen’s Compensation Board v. Canadian Pacific Railway Co., (UK JCPC), [1920] A.C. 184;Provincial Secretary of Prince Edward Island v. Egan, (SCC), [1941] S.C.R. 396; Nova Scotia Board of Censors v.McNeil, (SCC), [1978] 2 S.C.R. 662; Attorney General for Canada and Dupond v. City of Montreal, (SCC), [1978] 2 S.C.R. 770; Schneider v.

The Queen, (SCC), [1982] 2 S.C.R. 112; Scowby v. Glendinning, (SCC), [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., (SCC), [1983] 2 S.C.R. 206; General Motors of Canada Ltd. v. City NationalLeasing, (SCC), [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 Baylis, Françoise. Expert Report. The Regulation of Assisted Human Reproductive Technologies and Related Research: A Public Health, Safety and Morality Argument . August 2006. Beaudoin, Gérald-A., en collaboration avec Pierre Thibault.

La Constitution du Canada: institutions, partage des pouvoirs, Charte canadienne des droits et libertés , 3 e éd. Montréal: Wilson & Lafleur, 2004. Bissonnette, François. Rapport d’expertise. La procréation médicalement assistée au Canada et au Québec ― Survol et enjeux . Avril 2006. Bordet, Sylvie, Sabrina Feldman and Bartha Maria Knoppers. “Legal Aspects of Animal-Human Combinations in Canada” (2007), 1 M.H.L.P . 83. Brun, Henri, Guy Tremblay et Eugénie Brouillet. Droit constitutionnel , 5 e éd. Cowansville, Qué.: Yvon Blais, 2008.

Campbell, Angela. “Defining a Policy Rationale for the Criminal Regulation of Reproductive Technologies” (2002), 11 Health L. Rev. 26. Canada. Discussion Group on Embryo Research. Research on Human Embryos in Canada (Final Report). Ottawa: 1995. Canada. Health Canada. News Release 1995-57. Health Minister Calls for Moratorium on Applying Nine Reproductive Technologies and Practices in Humans , July 27, 1995. Canada. Health Canada. Proposals for Legislation Governing Assisted Human Reproduction: An Overview , May 2001. Canada. House of Commons.

Evidence of the Standing Committee on Health , No. 013, 1st Sess., 37th Parl., May 3, 2001 (online: http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=1040776&Mode=1&Parl=37&Ses=1&Language=E). Canada. House of Commons. Evidence of the Standing Committee on Health , No. 013, 2nd Sess., 37th Parl., December 9, 2002 (online: http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=628385&Mode=1&Parl=37&Ses=2&Language=E).

Canada. House of Commons. Evidence of the Standing Committee on Health , No. 016, 1st Sess., 37th Parl., May 17, 2001 (online: http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=1040839&Mode=1&Parl=37&Ses=1&Language=E). Canada. House of Commons. House of Commons Debates , vol. 137, No. 188, 1st Sess., 37th Parl., May 21, 2002. Canada. House of Commons. House of Commons Debates , vol. 137, No. 192, 1st Sess., 37th Parl., May 27, 2002. Canada. House of Commons. House of Commons Debates , vol. 138, No. 047, 2nd Sess., 37th Parl., January 28, 2003. Canada. House of Commons.

House of Commons Debates , vol. 138, No. 072, 2nd Sess., 37th Parl., March 18, 2003, p. 4335. Canada. Royal Commission on New Reproductive Technologies. Proceed with Care: Final Report of the Royal Commission on New Reproductive Technologies . Ottawa: Minister of Government Services Canada, 1993. Côté-Harper, Gisèle, Pierre Rainville et Jean Turgeon. Traité de droit pénal canadien , 4 e éd. Cowansville, Qué.: Yvon Blais, 1998.

Gaudreault-DesBiens, Jean-François. “The Irreducible Federal Necessity of Jurisdictional Autonomy, and the Irreducibility of Federalism to Jurisdictional Autonomy”, in Sujit Choudhry, Jean-François Gaudreault-DesBiens and Lorne Sossin, eds., Dilemmas of Solidarity: Rethinking Redistribution in the Canadian Federation . Toronto: University of Toronto Press, 2006, 185. Great Britain. Scottish Home Department. Report of the Departmental Committee on Human Artificial Insemination . London: Her Majesty’s Stationery Office, 1960.

Healy, Patrick. “Statutory Prohibitions and the Regulation of New Reproductive Technologies under Federal Law in Canada” (1995), 40 McGill L.J. 905. Hogg, Peter W. Constitutional Law of Canada , 5th ed. Supp. Scarborough, Ont.: Thomson/Carswell, 2007 (loose-leaf updated 2009, release 1). Lederman, W. R. “Mr. Justice Rand and Canada’s Federal Constitution” (1979-1980), 18 U.W.O. L. Rev. 31. Mundell, D. W. “Tests for Validity of Legislation under the British North America Act: A Reply to Professor Laskin” (1955), 33 Can. Bar Rev. 915. Nisker, Jeff. Expert Report.

Quebec Challenge to Assisted Human Reproduction Act ― Response to the Report by François Bissonnette MD FRCSC . August 2006. Sheldon, S., and S. Wilkinson. “Should selecting saviour siblings be banned?” (2004), 30 J. Med. Ethics 533. Somerville, Margaret. “Reprogenetics: Unprecedented Challenges to Respect for Human Life” (2005), 38 Law/Tech. J. 1. Tremblay, André. Les Compétences législatives au Canada et les Pouvoirs provinciaux en Matière de Propriété et de Droits civils . Ottawa: Université d’Ottawa, 1967.

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 against this background that Parliament decided to act. It did not act precipitously. Rather, it established the Royal Commission on New Reproductive Technologies (the “Baird Commission”) to study the matter and make recommendations.

The Baird Commission expressed concern about certain practices in the field of new reproductive technologies and pressed the government to pass legislation to limit their use: see Proceed with Care: Final Report of the Royal Commission on New Reproductive Technologies (1993) (the “Baird Report”). [ 6 ] Between 1993 and 1995, the federal government consulted with the provinces, the territories and independent

groups, including researchers, men and women dealing with infertility problems, persons with disabilities, religious denominations and physicians. It also asked a group of experts in philosophy, sociology, anthropology, medicine and law for their advice on the issue of human embryo research.

The result of these consultations was the ultimate passage of the Assisted Human Reproduction Act , S.C. 2004, c. 2 (also referred to as the “Act”), enacted in March 2004, as an exercise of the federal criminal law power under s. 91(27) of the Constitution Act, 1867 . [ 7 ] The Act contains a prohibition regime, supported by provisions designed to administer and enforce its prohibitions. The Attorney General of Quebec accepted that some of the prohibitions 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 were attempts to regulate the whole sector of medical practice and research related to assisted reproduction, including the doctors and hospitals involved. In June 2009, Quebec passed its own law on the subject, entitled the Act respecting clinical and research activities relating to assisted procreation , R.S.Q., c. A-5.01 . [ 8 ] On June 19, 2008, the Quebec Court of Appeal accepted the argument of the Attorney General of Quebec that the impugned sections were not valid criminal law: 2008 QCCA 1167 , 298 D.L.R. (4th) 712.

The Court of Appeal held that their real character — their pith and substance — was the regulation of medical practice and research in relation to assisted reproduction. Parliament’s purpose, it concluded, was not only to prohibit wrongful acts, but also to assure that desirable aspects of assisted reproduction were encouraged and correctly regulated.

The provisions were thus declared unconstitutional. [ 9 ] The Attorney General of Canada now appeals to this Court. [ 10 ] My colleagues LeBel and Deschamps JJ. conclude that the impugned sections of the Act, in pith and substance, constitute an attempt to regulate hospitals and medical research, and thus are ultra vires the federal Parliament. I respectfully disagree. The prohibitions in ss. 5 to 7 are conceded to be valid criminal legislation. In my view, the remaining prohibitions in ss. 8 to 13 are also valid criminal law.

Although some of these prohibitions impact on the regulation of medical research and practice, all matters within provincial jurisdiction, the impact is incidental to the legislation’s dominant criminal law purpose and limited to those ends. Finally, while not criminal law in pith and substance, the administrative, organizational, and enforcement provisions in ss. 14 to 68 are integrated into this prohibition regime, and hence they are valid under the ancillary powers doctrine. I would therefore allow the appeal. II. The Legislation [ 11 ] The prohibitions are of two types.

Sections 5 to 9 are cast in absolute terms. In those sections, the Act prohibits: (

a) human cloning (s. 5(1)( a )) and the use, manipulation and transplantation of reproductive material of a non-human life form, chimera or hybrid, in order to create a human being (s. 5(1)(

g) to ( j )); (

b) the creation of an in vitro embryo for any purpose other than creating a human being or improving or providing instruction in assisted reproduction procedures (s. 5(1)( b )); (

c) the creation of an embryo from a cell taken from an embryo or foetus (s. 5(1)( c )) or the maintenance of such an embryo outside of the body after the fourteenth day of its development (s. 5(1)( d )); (

d) the determination of an embryo’s sex for non-medical reasons (s. 5(1)( e )); (

e) the alteration of the genome of an in vitro embryo or cell of a human being such that the alteration is capable of being transmitted to descendants (s. 5(1)( f )); (

f) the commercialization of the reproductive functions of women and men, particularly the payment of consideration to surrogate mothers (s. 6) and the purchase and sale of in vitro embryos or the purchase of human reproductive material (s. 7); (

g) any use of in vitro embryos unless the donor has given written consent, as well as the use and posthumous removal of human reproductive material unless the donor has given written consent, when the purpose of the use or removal is the creation of an embryo (s. 8); and (

h) the removal or use of sperm or ova from a donor under 18 years of age, except for the purpose of preserving the sperm or ova or for the purpose of creating a human being where it is reasonable to believe that the human being will be raised by the donor (s. 9). [ 12 ] Other prohibitions, referred to in the Act as “controlled activities”, are found in ss. 10 to 13. These sections prohibit various activities, unless they are carried out in accordance with regulations made under the Act, under licence, and in licensed premises. The activities in question involve: (

a) altering, manipulating, treating, obtaining, storing, transferring, destroying, importing and exporting human reproductive material or in vitro embryos for certain purposes (s. 10); (

b) combining any part of the human genome with any part of the genome of another species (s. 11); (

c) reimbursing a donor for an expenditure incurred in the course of donating sperm or ova and a surrogate mother for an expenditure incurred by her in relation to her surrogacy (s. 12); (

d) undertaking a controlled activity in an unlicensed facility (s. 13). [ 13 ] The prohibition regime is followed by provisions that do not in themselves purport to create criminal offences, but are directed to administering and enforcing the primary criminal law prohibitions. These include a mechanism for gathering and storing information related to assisted reproduction procedures, the establishment of an administrative agency (the Assisted Human

Reproduction Agency of Canada (“Agency”)), the power of the Governor in Council to make regulations respecting the Act (s. 65), andthe power of the Governor in Council to exempt the operation of certain provisions if there are equivalent provincial laws in force thatcover the field (s. 68). [14] Only the validity of certain sections of the Act is at issue in this appeal. With the exception of the regulations unders. 8, no regulations have yet been promulgated. III. The Issues [15] The Attorney General of Quebec concedes that the absolute prohibitions found in ss. 5 to 7 are valid criminal law. This leaves the following issues:

(1) The validity of the legislative scheme as a whole

(2) The validity of the “controlled activities” prohibitions

(3) The validity of the administrative provisions under the ancillary powers doctrine IV. Analysis A. The Validity of the Legislative Scheme as a Whole [16] Since the Attorney General of Quebec is challenging individual provisions of the federal scheme, this Court mustexamine the whole scheme and the impugned provisions separately (General Motors of Canada Ltd. v. City National Leasing, (SCC), [1989] 1 S.C.R. 641, at p. 666). Ordinarily, this Court would begin by examining the impugned provisions in orderto determine if and to what extent they intrude on the provincial sphere of competence: see Kirkbi AG v.

Ritvik Holdings Inc., 2005 SCC65, [2005] 3 S.C.R. 302, at para. 21; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC31, [2002] 2 S.C.R. 146, at para. 58. The advantage of this order of analysis is that if the impugned provisions are not found to intrude atall, “then the investigation need go no further” (General Motors, at p. 667). While courts may nonetheless examine the whole scheme insuch cases, we have tended to end the analysis if the individual provisions are not found to be problematic: see Ward v.

Canada(Attorney General), 2002 SCC 17, [2002] 1 S.C.R. 569. [17] However, in the case at bar it is necessary to examine the whole scheme first before we can make sense of thechallenged provisions. This Court has often underlined that the impugned provisions must be considered in their proper context (see,e.g., Reference re Employment Insurance Act (Can.), ss. 22 and 23, 2005 SCC 56, [2005] 2 S.C.R. 669, at paras. 17-35). In this case, theAttorney General of Quebec is challenging the bulk of the Assisted Human Reproduction Act.

While it concedes that ss. 5 to 7 of the Actare valid, it challenges almost all the remaining operative provisions. Under these circumstances, it is impossible to meaningfullyconsider the provisions at issue without first considering the nature of the whole scheme. [18] Therefore, the first question is whether the matter of the statutory scheme, viewed as a whole, is a valid exercise offederal power. The second question is whether its individual provisions are also valid.

If the scheme as a whole is valid, but some of itsprovisions invalid, the invalid provisions are severed, leaving the remaining provisions intact. As Dickson J. (as he then was) explainedin Attorney General of Canada v. Canadian National Transportation, Ltd., (SCC), [1983] 2 S.C.R. 206, at p. 270, “[i]t isobvious at the outset that a constitutionally invalid provision will not be saved by being put into an otherwise valid statute”.

Severancemay not be possible if bad provisions are so inextricably bound up with good provisions that the legislature would not have enacted onewithout the other: Attorney-General for Alberta v. Attorney-General for Canada, (UK JCPC), [1947] A.C. 503 (P.C.),at p. 518.

(1) Characterizing the Legislative Scheme [19] There are two steps to determining whether a law is valid: characterization and classification. First the dominant“matter” or “pith and substance” of the law must be determined: Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, atpara. 25. Once the “matter” is thus characterized, the second step is to determine if it falls under a head of power assigned to the enactingbody: Kitkatla Band, at para. 52.

In this case, the enacting body is federal, and the Attorney General of Canada has decided to limit hisarguments on the validity of the Act to a single head of jurisdiction: the criminal law power in s. 91(27) of the Constitution Act, 1867. Ifthe scheme, properly characterized, falls within that power, it is valid, subject to a closer look at particular provisions. If not, it isinvalid. See Reference re Anti-Inflation Act, (SCC), [1976] 2 S.C.R. 373, at p. 450; Kitkatla Band. [20] The parties disagree on the proper characterization of the Assisted Human Reproduction Act.

The Attorney Generalof Canada says that 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. The AttorneyGeneral of Quebec, focussing mainly on the effects of the Act, says that its dominant characteristic is the regulation of reproductivemedicine and research. These different characterizations of the scheme lead to different results at the second step.

The Attorney Generalof Canada says the law is valid federal legislation under the criminal law power, while the Attorney General of Quebec says it is anillegal scheme to regulate health concerns that fall under provincial powers. [21] The issue is as follows: Is the Assisted Human Reproduction Act properly characterized as legislation to curtailpractices that may contravene morality, create public health evils or put the security of individuals at risk, as the Attorney General ofCanada contends?

Or should it be characterized as legislation to promote positive medical practices associated with assistedreproduction, as the Attorney General of Quebec contends? In pith and substance, what is this legislation about? Controlling andcurtailing the negative impacts associated with artificial human reproduction? Or establishing salutary rules to govern the practice ofmedicine and research in this emerging field? [22] To determine which characterization is correct, one must consider the purpose and effect of the legislative scheme.

One must ask, “[w]hat in fact does the law do and why?”: D. W. Mundell, “Tests for Validity of Legislation under the British North America Act: A Reply to Professor Laskin” (1955), 33 Can. Bar Rev . 915, at p. 928. [ 23 ] I turn first to purpose. The Attorney General of Canada, as stated, says that the purpose of the Act is to prohibit improper practices associated with assisted reproduction — practices that may undermine fundamental moral precepts, lead to public health evils and threaten the security of individuals.

By contrast, the Attorney General of Quebec argues that the purpose of the Act is to legislate on health, a matter generally within provincial jurisdiction. The question at this point is therefore whether the dominant purpose of the Act is to prohibit reprehensible conduct, as the Attorney General of Canada alleges, or to regulate health, as the Attorney General of Quebec alleges. [ 24 ] The text of the Act suggests that its dominant purpose is to prohibit inappropriate practices, rather than to promote beneficial ones.

It is true that the Act establishes a scheme to control assisted reproduction on a national level, and this initiative necessarily touches on provincial jurisdiction over medical research and practice. However, the dominant thrust of the Act is prohibitory, and the aspects that concern the provision of health services do not rise to the level of pith and substance. As s. 2 of the Act explains, the purpose of the Act is to safeguard against practices that may offend fundamental values and rights and harm human health, safety and dignity.

The emphasis is on preventing practices that offend these values and produce this harm. [ 25 ] The Act accomplishes its purpose of prohibiting reprehensible conduct by imposing sanctions. The Act is essentially a series of prohibitions, followed by a set of subsidiary provisions for their administration. [ 26 ] The Attorney General of Quebec concedes that the prohibitions in ss. 5 to 7 of the Act are valid criminal law. In my view, the prohibitions in ss. 8 to 13 advance the same criminal law purpose. Sections 8 to 13, viewed in context, are not aimed at promoting the beneficial aspects of assisted reproduction.

While they distinguish the beneficial from the reprehensible, it is only for the purpose of carving out the latter. In this sense, the prohibitions in ss. 5 to 13 all advance a common purpose, but do so in a manner tailored to the conduct that they address. Conduct that is always reprehensible is prohibited absolutely (ss. 5 to 9 ). Conduct that is reprehensible in particular situations is prohibited selectively; thus, ss. 10 to 13 prohibit only the harmful aspects of the conduct at issue. In other words, they prohibit conduct, subject to exceptions for practices that Parliament does not consider to be harmful.

These prohibitions do not prevent the provinces from enacting legislation promoting beneficial practices in the field of assisted reproduction. Subject to the Act’s prohibitions, the provinces are free to regulate these practices. The scheme of the Act is to carve out from the broader field of assisted reproduction conduct that Parliament considers criminal.

These prohibitions give the Act its content and define its purpose. [ 27 ] In support of the Attorney General of Quebec’s position that the Act should be characterized as health legislation, LeBel and Deschamps JJ. argue that the Act has a two-fold purpose: (1) the prohibition of reprehensible practices; and (2) the promotion of beneficial practices. Criminal law, they argue, is concerned with prohibiting undesirable conduct, and cannot extend to promoting the beneficial aspects of assisted reproduction.

In their view, Parliament’s desire to promote beneficial practices proves that the Act is intended to create a national scheme for the regulation of assisted reproductive technologies. [ 28 ] My colleagues rely on the Baird Report as proof of Parliament’s intention to impose national medical standards under the guise of criminal law, e.g., at para. 206: It is clear that the Baird Commission wanted certain activities to be denounced and prohibited because, in its view, there was a consensus that they were reprehensible.

But the Commission also wanted assisted human reproduction and related research activities to be regulated for the purpose of establishing uniform standards that would apply across Canada.

Thus, it can be seen that the distinction drawn in the [Act] between prohibited activities and controlled activities corresponds to the two distinct categories of activities for which the Baird Commission recommended two distinct approaches with different purposes . [Emphasis added.] Prohibition, the argument continues, may be the proper domain of the criminal law, but the promotion of beneficial health practices is the domain of the provinces. The Act impermissibly gathers both purposes under the broad umbrella of the criminal law.

On the argument advanced by my colleagues, it follows that large parts of the Act are invalid. [ 29 ] The first response to this argument is to note that it treats the Baird Report as proof of the purpose behind the Assisted Human Reproduction Act . But that is to ignore what the Baird Report was about. The Baird Commission was writing a policy analysis (not a constitutional law paper) on a subject thought to raise serious issues of morality.

Its enquiry into moral issues surrounding assisted reproduction established the validity of these concerns and impelled Parliament to adopt the Act, as discussed more fully below. However, the fact that the Baird Commission may have referred to positive aspects of assisted reproduction technology — benefits all acknowledge — does not establish that these benefits were the focus of Parliament’s efforts. [ 30 ] The second response to this argument is that it rests on an artificial dichotomy between reprehensible conduct and beneficial practices.

The Act certainly employs both a penal and regulatory form , however Parliament may validly employ regulations as part of a criminal law provided they target a legitimate criminal law purpose. Prohibiting or regulating bad conduct may in fact produce benefits. This is a common consequence of many criminal laws. What matters for purposes of constitutionality is not whether a criminal law has beneficial consequences, but whether its dominant purpose is criminal. The Assisted Human Reproduction Act does not have two objects , the first to prohibit reprehensible conduct, the second to promote beneficial effects.

It targets conduct that Parliament has found to be reprehensible. In so doing, it incidentally permits beneficial practices through regulations . But that does not render it unconstitutional. [ 31 ] Turning to the effects of the Act, this legislation clearly has an impact on the regulation of medical research and practice, and hospital administration.

Researchers, practitioners and hospitals will be subject to both the Act and the regulations it contemplates. [ 32 ] However, the doctrine of pith and substance permits either level of government to enact laws that have “substantial impact on matters outside its jurisdiction”: P. W. Hogg, Constitutional Law of Canada (5th ed. Supp.), at p. 15-9. The issue in such cases is to determine the dominant effect of the law. Viewed as a whole, the dominant effect of the Act is to prohibit a number of practices

which Parliament considers immoral and/or which it considers a risk to health and security, not to promote the positive aspects of assistedreproduction.

The dominant effect of the prohibitory and administrative provisions is to create a regime that will prevent or punishpractices that may offend moral values, give rise to serious public health problems, and threaten the security of donors, donees, andpersons not yet born. [33] In sum, while the Act will have beneficial effects — one hopes all criminal laws will have beneficial effects — andwhile some of its effects may impact on provincial matters, neither its dominant purpose nor its dominant effect is to set up a regime toregulate and promote the benefits of artificial reproduction in hospitals and laboratories. [34] I conclude that the pith and substance of the Act is properly characterized as the prohibition of negative practicesassociated with assisted reproduction.

(2) Does the Matter of the Act Come Within Section 91(27)? [35] Having characterized the matter to which the Act relates, the next question is whether it comes within the scope ofthe federal criminal law power under s. 91(27) of the Constitution Act, 1867.

In order to answer this question, we must consider whetherthe matter satisfies the three requirements of valid criminal law: (1) a prohibition; (2) backed by a penalty; (3) with a criminal lawpurpose: Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783 (“Firearms Reference”), at para. 27. [36] As already discussed, the Act, properly characterized, imposes prohibitions backed by penalties, thereby fulfillingthe first two requirements of a valid criminal law. Admittedly, some of the provisions permit exceptions. However, the criminal lawdoes not require absolute prohibitions: R. v.

Morgentaler, (SCC), [1993] 3 S.C.R. 463; R. v. Furtney, (SCC), [1991] 3 S.C.R. 89; RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1995] 3 S.C.R. 199. To besure, a large portion of the scheme is regulatory. However, it is open to Parliament to create regulatory schemes under the criminal lawpower, provided they further the law’s criminal law purpose. The complexity of modern problems often requires a nuanced schemeconsisting of a mixture of absolute prohibitions, selective prohibitions based on regulations, and supporting administrative provisions.

Such schemes permit flexibility, vital in a field of evolving technologies, and they have repeatedly been upheld as valid criminal law:RJR-MacDonald; R. v. Hydro-Québec, (SCC), [1997] 3 S.C.R. 213. To take but one example, the list of toxicsubstances capable of harming the populace is ever-changing. It is unrealistic to expect Parliament to enact new laws every time achange occurs, and the criminal law power does not require it to do so.

The same logic applies to the present case. [37] My colleagues LeBel and Deschamps JJ. take issue with the provisions of the Act that prohibit activities unlessconducted in accordance with federal regulations. As noted above, they argue that these provisions are designed to promote beneficialpractices, while I view them as carve-outs from prohibition.

They further argue that since the doctrine of paramountcy allows federallegislation to prevail over provincial legislation in the case of conflicts, finding the regulatory provisions intra vires would effectivelyoust provincial power over health. [38] In my view, the requirement that a criminal law contain a prohibition prevents Parliament from undermining theprovincial competence in health. The federal criminal law power may only be used to prohibit conduct, and may not be employed topromote beneficial medical practices.

Federal laws (such as the one in this case) may involve large carve-outs for practices thatParliament does not wish to prohibit. However, the use of a carve-out only means that a particular practice is not prohibited, not that thepractice is positively allowed by the federal law. This has important implications for the doctrine of federal paramountcy. If a provinceenacted stricter regulations than the federal government, there would be no conflict in operation between the two sets of provisions sinceit would be possible to comply with both.

Further, there would be no frustrations of the federal legislative purpose since federal criminallaws are only intended to prohibit practices. A stricter provincial scheme would complement the federal criminal law. See Rothmans,Benson & Hedges Inc. v. Saskatchewan, 2005 SCC 13, [2005] 1 S.C.R. 188, at para. 22; Irwin Toy Ltd. v. Quebec (Attorney General), (SCC), [1989] 1 S.C.R. 927, at pp. 964-65; and Ross v. Registrar of Motor Vehicles, (SCC), [1975] 1S.C.R. 5. There may be a conflict between a criminal law and a less strict provincial scheme.

However, in such a case, Parliament’sstricter scheme would be acting as a prohibition. In this way, the prohibition requirement for criminal laws acts as a major limitation onthe effect of s. 91(27).

(3) Does the Act Serve a Valid Criminal Law Purpose? [39] Having determined that the Act imposes prohibitions backed by penalties, it remains to be determined whether itdoes so in the service of a criminal law objective. The Attorney General of Canada asserts that the Act serves broad criminal lawpurposes centred around morality, health, and security. The Attorney General of Quebec suggests that the real purpose of the law is notcriminal, but regulatory — namely, to establish a system to regulate assisted reproduction.

In turn, it contends that such a scheme isprovincial turf. [40] Much judicial ink has been spilled in attempting to elucidate a precise definition of a valid criminal law purpose. The early cases swung from the extreme of a precisely defined “domain” of criminal law (In re The Board of Commerce Act, 1919, andThe Combines and Fair Prices Act, 1919, (UK JCPC), [1922] 1 A.C. 191 (P.C.), at pp. 198-99), to the opposite extremeof any “act prohibited with penal consequences” (Proprietary Articles Trade Association v.

Attorney-General for Canada, (UK JCPC), [1931] A.C. 310 (P.C.), at p. 324). [41] The modern conception of a valid criminal law objective is grounded in the Reference re Validity of

Section 5(

a) ofthe Dairy Industry Act, (SCC), [1949] S.C.R. 1 (the “Margarine Reference”), where Rand J. decided that a criminalprohibition must serve “a public purpose” like “[p]ublic peace, order, security, health, morality” (p. 50), stopping short of pure economicregulation. It has been held that highway regulation bearing no relation to public safety falls beyond the scope of the federal criminallaw power: Boggs v. The Queen, (SCC), [1981] 1 S.C.R. 49.

On the other hand, prohibitions aimed at combatting the“public health evil” of tobacco consumption have been found to fall within the ambit of the criminal law power (RJR-MacDonald, atparas. 32-33), as have prohibitions directed at protecting the public from environmental hazards (Hydro-Québec), dangerous andadulterated food and drug products (R. v. Wetmore, (SCC), [1983] 2 S.C.R. 284), illicit drugs (R. v. Malmo-Levine, 2003

SCC 74, [2003] 3 S.C.R. 571), and firearms (Firearms Reference). [42] The Attorney General of Canada relies on these cases to argue that prohibiting the detrimental aspects of assistedreproduction constitutes a valid criminal law purpose under the objectives of morality, health, and security, including the protection ofvulnerable groups.

The Attorney General of Quebec criticizes this approach, arguing that it represents a virtually unlimited extension ofthe criminal law power, which would threaten the constitutional division of powers between the federal and provincial governments. [43] There is merit in both positions. On the one hand, the jurisprudence properly recognizes that confining the criminallaw power to precise categories is impossible. The criminal law must be able to respond to new and emerging matters of public concernthat go to the health and security of Canadians and the fundamental values that underpin Canadian society.

A crabbed, categoricalapproach to valid criminal law purposes is thus inappropriate. On the other hand, a limitless definition, combined with the doctrine ofparamountcy, has the potential to upset the constitutional balance of federal-provincial powers. Both extremes must be rejected. Toconstitute a valid criminal law purpose, a law’s purpose must address a public concern relating to peace, order, security, morality, health,or some similar purpose.

At the same time, extensions that have the potential to undermine the constitutional division of powers shouldbe rejected. [44] Whether a federal law falls within Parliament’s criminal law power under s. 91(27) of the Constitution Act, 1867, isa question of which level of government has jurisdiction to enact this law. This question relates to the powers of one level of governmentvis-à-vis the other, and it is resolved by determining the law’s pith and substance. The degree to which the Act may impact onindividual liberties is not relevant to this inquiry.

The Attorney General of Quebec has not challenged the Assisted Human ReproductionAct on the basis that it constitutes an unjustified infringement of individual liberty. That would raise the question of whether any level ofgovernment could enact this law, an issue which turns on the state’s authority vis-à-vis the individual: see R. v. Butler, (SCC), [1992] 1 S.C.R. 452, and Malmo-Levine.

Rather, the Attorney General of Quebec challenges the Act on the basis that it wreststurf from the provinces. [45] It follows that this case does not require us to balance the impact of the Act on liberty against the importance ofParliament’s legislative objective. The only question is whether the Act comes within the scope of s. 91(27). In this respect, I differfrom my colleagues LeBel and Deschamps JJ., who argue that there is insufficient societal consensus to justify the restrictions that theAct imposes on individual liberties.

With respect, the language of justification has no place in the pith and substance analysis. [46] Criminal law objectives, such as peace, order, security, morality, and health do not occupy separate watertightcompartments. The question in each case is whether the matter of the legislation at issue relates to one or more of the recognizedcriminal law purposes, or a similar objective.

Criminal laws will often engage more than one objective, and the objectives may overlapwith each other. [47] In this case, the Attorney General of Canada relies mainly on the objectives of upholding morality and avoiding orcontaining potential public health evils. Mingled with these are overtones of security insofar as the practices may harm participants andoffspring. It has been recognized that morality, public health evils and security are, in principle, capable of supporting criminal laws.

We are not therefore confronted with the need to determine whether a new type of objective can be recognized as a valid criminal lawpurpose. The question is simply whether the legislative scheme falls within the ambit of the objectives that the Attorney General ofCanada has identified. [48] I turn now to consider the scope of the criminal law purposes that Parliament has identified. I conclude thatupholding morality is the principal criminal law object of the Act.

What is at stake is not merely two competing health schemes, butParliament’s power to enact general norms for the whole of Canada to meet the pressing moral concerns raised by the techniques ofassisted reproduction. The objects of prohibiting public health evils and promoting security play supporting roles with respect to someprovisions. Taken together, these objects confirm that the Act serves valid criminal law purposes. In reaching this conclusion,moreover, I do not intend to broaden the scope of the criminal law power, but rather apply this Court’s jurisprudence. (

a) Morality [49] Morality has long been recognized as a proper basis for the exercise of the criminal law power. In one of the firstcases to consider the ambit of s. 91(27), Sir Montague E. Smith wrote that the criminal law power includes laws “designed for thepromotion of public order, safety, or morals”: Russell v. The Queen (1882), 7 App. Cas. 829 (P.C.), at p. 839.

Similarly, in theMargarine Reference, Rand J. included morality in his famous definition of valid criminal law purposes. [50] Criminal law may target conduct that Parliament reasonably apprehends as a threat to our central moral precepts:Malmo-Levine, at para. 78. Moral disapprobation is itself sufficient to ground criminal law when it addresses issues that are integral tosociety. Different people hold different views about issues such as the artificial creation of human life.

However, under federalismanalysis, the focus is on the importance of the moral issue, not whether there is societal consensus on how it should be resolved. Parliament need only have a reasonable basis to expect that its legislation will address a moral concern of fundamental importance, evenif hard evidence is unavailable on some points because “the jury is still out”: Malmo-Levine, at para. 78. Whether the law violates theCanadian Charter of Rights and Freedoms guarantees of individual liberty is another issue. [51] In

summary, morality constitutes a valid criminal law purpose. The role of the courts is to ensure that such acriminal law in pith and substance relates to conduct that Parliament views as contrary to our central moral precepts, and that there is aconsensus in society that the regulated activity engages a moral concern of fundamental importance. (

b) Health [52] Health is a jurisdiction shared by both the provinces and the federal government. In order to preserve the balance ofpowers, Parliament’s ability to pass criminal laws on the basis of health must be circumscribed. To this end, criminal laws for theprotection of health must address a “legitimate public health evil”: RJR-MacDonald, at para. 32; see also Schneider v. The Queen, (SCC), [1982] 2 S.C.R. 112, at p. 142.

[53] It has proven difficult to articulate a precise definition of a legitimate public health evil. It has been held that thefederal criminal law power encompasses the regulation or prohibition of threats as diverse as tobacco (RJR-MacDonald); dangerous andadulterated food and drug products (Wetmore); illicit drugs (Malmo-Levine); gun control (Firearms Reference); and environmentaldegradation (Hydro-Québec). [54] Behind the diversity in the cases that have upheld criminal laws on the basis of public health evils lie three constantfeatures.

In each of these cases, the criminal law was grounded in (1) human conduct (2) that has an injurious or undesirable effect (3)on the health of members of the public. [55] Human conduct causing harm is the fundamental stuff of the criminal law. The element of harmful human conducttransforms a public health problem, like cancer, into a public health evil, like tobacco. The criminalization of public health evilsrecognizes that criminal liability is not confined to crimes like murder and fraud, where human conduct is coupled with injury to aspecific person.

Parliament is entitled to target conduct that elevates the risk of harm to individuals, even if it does not always crystallizein injury. For example, Parliament may criminalize dangerous driving, despite the fact that it creates only a risk of injury, not acertainty. Where human conduct may cause injurious or undesirable effects on the health of members of society, Parliament mayprohibit it as a public health evil. [56] No constitutional threshold level of harm, as such, constrains Parliament’s ability to target conduct causing theseevils.

It is not apparent that the criminal law may only regulate the severest risks to individual’s health and safety, and not also prohibitless severe harms that are of public concern. In RJR-MacDonald, La Forest J. emphasized that the harm of tobacco consumption was“dramatic and substantial” (para. 32). However, this observation does not constrain the test he applied for whether Parliament mayregulate a risk to health: “. . . the criminal law power may validly be used to safeguard the public from any injurious or undesirableeffect.

The scope of the federal power to create criminal legislation with respect to health matters is broad, and is circumscribed only bythe requirements that the legislation must contain a prohibition accompanied by a penal sanction and must be directed at a legitimatepublic health evil” (para. 32 (emphasis added; internal quotation marks omitted)).

This said, the need to establish a reasonableapprehension of harm means that conduct with little or no threat of harm is unlikely to qualify as a “public health evil”: Malmo-Levine, atpara. 212, per Arbour J., dissenting, but not on this point. [57] My colleagues LeBel and Deschamps JJ. argue that there is little to distinguish assisted reproduction from any otheremerging field of medical practice. All medical practices come with risks. This, they argue, does not bring those practices within thefederal criminal law power.

The answer to this argument, confirmed by the cases, is that, provided it is not a colourable intrusion uponprovincial jurisdiction (i.e. one not supported by a valid criminal law purpose), Parliament is entitled to use the criminal law power tosafeguard the public from conduct that may have an injurious or undesirable effect on the health of members of the public,notwithstanding the provinces’ general right to regulate the medical profession.

Health is subject to overlapping federal and provincialjurisdiction, and the provinces’ power to legislate in this field does not exclude Parliament’s authority to target conduct that constitutes apublic health evil: RJR-MacDonald, at para. 32. (

c) Security [58] Security is relied on only peripherally in this case. Yet the Attorney General of Canada raises morality and healthconcerns that have significant implications for personal security. It is beyond dispute that one of the most fundamental purposes ofcriminal law — indeed its most fundamental purpose — is the protection of personal security. To preserve human life and security is thestate’s most fundamental concern. Traditionally, the criminal law has played a central role in the pursuit of this objective.

This extendsto life before birth; control over the termination of pregnancy has long been recognized as a valid criminal law subject: see Morgentalerv. The Queen, (SCC), [1976] 1 S.C.R. 616. It is beyond the scope of the present appeal to decide whether such lawsinfringe individual liberties in a manner that is unconstitutional. In the context of the federalism analysis, it suffices that the protectionof vulnerable groups has been recognized as a valid criminal law purpose. (

d) Is the Legislative Scheme Grounded in a Valid Criminal Law Purpose? [59] As discussed earlier, the purposes of the criminal law overlap. Morality, public health evils and security may focuson the same concerns. In exercising its criminal law power, Parliament is not confined to a single purpose or a given combination ofpurposes. What is required is that the legislation, properly characterized and considered in lig

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