Reference Re Assisted Human Reproduction Act, (2010) 410 N.R. 199 (SCC)

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: April 24, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2010), 410 N.R. 199 (SCC);2010 SCC 61

Ref. Re Assisted Human Reproduction Act (2010), 410 N.R. 199 (SCC)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2010] N.R. TBEd. DE.034

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 (intervenors)

(32750; 2010 SCC 61; 2010 CSC 61)

Indexed As: Reference Re Assisted Human Reproduction Act

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.

December 22, 2010.

Summary:

In March 2004, Parliament passed the Assisted Human Reproduction Act, as an exercise of the federal criminal law power under s. 91(27) of the Constitution Act, 1867. The Act dealt with such matters as the use of embryos and other human reproductive material. 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.

The Quebec Court of Appeal, in a decision reported 298 D.L.R.(4th) 712 and with neutral citation 2008 QCCA 1167, held that the impugned sections were not valid criminal law. The court held that the pith and substance of the impugned sections 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. The Attorney General of Canada appealed and the following constitutional question was posed:

"1. Do ss. 8 to 19, 40 to 53, 60, 61 and 68 of the Assisted Human Reproduction Act, S.C. 2004, c. 2, exceed, in whole or in part, the legislative authority of the Parliament of Canada under the Constitution Act, 1867?"

The Supreme Court of Canada allowed the appeal in part. In the result, ss. 8, 9, 12, 19 and 60 were found to be constitutional. Sections 10, 11, 13, 14 to 18, 40(2), (3), (3.1), (4) and (5) and ss. 44(2) and (3) exceeded 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 were constitutional to the extent that they related to constitutionally valid provisions. This conclusion resulted from three separate opinions of the court.

McLachlin, C.J.C. (Binnie, Fish and Charron, JJ., concurring), opined that all the impugned provisions were valid. They held that the prohibitions in ss. 8 to 13 fell within the federal criminal law power under s. 91(27) of the Constitution Act, 1867, and the remaining sections were ancillary to that criminal law scheme. McLachlin, C.J.C., therefore, would allow the appeal and answer the constitutional question in the negative.

LeBel and Deschamps, JJ., in joint reasons (Abella and Rothstein, JJ., concurring), opined that the constitutional question should be answered in the affirmative (i.e., all the impugned provisions were ultra vires Parliament), except to the extent that the offences provided for in ss. 60 and 61 related to provisions that were not in dispute. LeBel and Deschamps, JJ., opined that the provisions of the Act concerning controlled activities, namely those involving assistance for human reproduction and related research activities, did not fall under the criminal law power, but belonged to the jurisdiction of the provinces over hospitals, civil rights and local matters. They would uphold the conclusion of the Quebec Court of Appeal that the impugned provisions were ultra vires Parliament and dismiss the appeal.

Cromwell, J., disagreed with the results proposed by both McLachlin, C.J.C., and by Justices LeBel and Deschamps. Cromwell, J., answered the above constitutional question as follows: "With respect to ss. 10, 11, 13, 14 to 18, 40(2), (3), (3.1), (4) and (5) and ss. 44(2) and (3) I would answer yes. With respect to ss. 8, 9, 12, 19 and 60, I would answer no. With respect to ss. 40(1), (6) and (7), 41 to 43, 44(1) and (4), 45 to 53, 61 and 68, to the extent they relate to constitutionally valid provisions, I would also answer no."

Constitutional Law - Topic 5.1

General principles - Unwritten constitutional principles - Federalism - In March 2004, Parliament passed the Assisted Human Reproduction Act, as an exercise of the federal criminal law power (Constitution Act, 1867, s. 91(27)) - A constitutional reference ensued - The Supreme Court of Canada, per LeBel and Deschamps, JJ. (Abella and Rothstein, JJ., concurring), reviewed the applicable constitutional principles and doctrines - See paragraphs 182 to 197 - They noted that there were certain principles that shaped Canadian Federalism - In Reference re Secession of Quebec (SCC 1998) the court identified four principles that underlie the Constitution as a whole and its evolution: constitutionalism and the rule of law, democracy, the protection of minorities, and federalism - LeBel and Deschamps, JJ., stated that of particular interest in the case at bar was federalism - According to that principle, the powers of the different levels of government in a federation were co-ordinate, not subordinate, powers - Federalism implied that a government does not encroach on the powers of the other level of government - See paragraph 182.

Constitutional Law - Topic 5.1

General principles - Unwritten constitutional principles - Federalism (incl. principle of subsidiarity)) - The Supreme Court of Canada, per McLachlin, C.J.C. (Binnie, Fish and Charron, JJ., concurring) discussed the principle of subsidiarity, noting that the idea behind that principle was that power was best exercised by the government closest to the matter - See paragraphs 69 to 72.

Constitutional Law - Topic 5.1

General principles - Unwritten constitutional principles - Federalism (incl. principle of subsidiarity) - In March 2004, Parliament passed the Assisted Human Reproduction Act, as an exercise of the federal criminal law power (Constitution Act, 1867, s. 91(27)) - The Act dealt with such matters as the use of embryos and other human reproductive material - A constitutional reference ensued - The Supreme Court of Canada, per McLachlin, C.J.C. (Binnie, Fish and Charron, JJ., concurring), opined that the Act, as a whole, was valid criminal legislation - See paragraphs 16 to 64 - McLachlin, C.J.C., thereafter addressed the arguments relied on by LeBel and Deschamps, JJ. (Abella and Rothstein, JJ., concurring), in support of their view that the criminal law had to be circumscribed to prevent trenching on provincial powers to regulate health - McLachlin, C.J.C., disagreed with the reliance placed by LeBel and Deschamps, JJ., on the principle of subsidiarity (i.e., the idea that power was best exercised by the government closest to the matter) - See paragraphs 69 to 72.

Constitutional Law - Topic 5.1

General principles - Unwritten constitutional principles - Federalism (incl. principle of subsidiarity) - In March 2004, Parliament passed the Assisted Human Reproduction Act, as an exercise of the federal criminal law power (Constitution Act, 1867, s. 91(27)) - The Act dealt with such matters as the use of embryos and other human reproductive material - A constitutional reference ensued - The Supreme Court of Canada, per LeBel and Deschamps, JJ. (Abella and Rothstein, JJ., concurring), noted that in Reference re Secession of Quebec (SCC 1998) the court commented that the proper operation of Canadian federalism sometimes required the application of a principle of subsidiarity in the arrangement of relationships between the legislative powers of the two levels of government - According to that principle, legislative action was to be taken by the government that was closest to the citizen and was thus considered to be in the best position to respond to the citizen's concerns - See paragraph 183.

Constitutional Law - Topic 5.1

General principles - Unwritten constitutional principles - Federalism - In March 2004, Parliament passed the Assisted Human Reproduction Act, as an exercise of the federal criminal law power (Constitution Act, 1867, s. 91(27)) - The Act dealt with such matters as the use of embryos and other human reproductive material - A constitutional reference ensued - The Supreme Court of Canada, per McLachlin, C.J.C. (Binnie, Fish and Charron, JJ., concurring), opined that the Act, as a whole, was valid criminal legislation - McLachlin, C.J.C., thereafter addressed the arguments relied on by LeBel and Deschamps, JJ. (Abella and Rothstein, JJ., concurring), in support of their view that the criminal law had to be circumscribed to prevent trenching on provincial powers to regulate health - See paragraphs 65 to 77 - McLachlin, C.J.C., stated that "... I cannot subscribe to the picture of Canadian federalism painted by my colleagues, where the federal criminal law power would be circumscribed by provincial competencies. I share their view that the criminal law cannot be used to eviscerate the provincial power to regulate health. Our Constitution prevents this from occurring, however, by requiring that criminal laws further a valid criminal law objective, and that they adopt the form of a prohibition. These requirements allow for the nationwide criminal norms that the Constitution intended, while ensuring adequate space for provincial regulation" - See paragraph 77.

Constitutional Law - Topic 1581

Extent of powers conferred - Double aspect doctrine - General - In March 2004, Parliament passed the Assisted Human Reproduction Act, as an exercise of the federal criminal law power (Constitution Act, 1867, s. 91(27)) - A constitutional reference ensued - The Supreme Court of Canada, per LeBel and Deschamps, JJ. (Abella and Rothstein, JJ., concurring), reviewed the applicable constitutional principles and doctrines, including the double aspect doctrine and the ancillary powers doctrine and the approach to be used in their application - See paragraphs 184 to 197.

Constitutional Law - Topic 1581

Extent of powers conferred - Double aspect doctrine - General - The Supreme Court of Canada, per LeBel and Deschamps, JJ. (Abella and Rothstein, JJ., concurring), stated that "The double aspect doctrine can be viewed at three different levels: (1) that of the facts themselves regardless of their legal characterization; (2) that of the legal perspectives represented by the legislative rules; and (3) that of the power in the context of the constitutional division of powers. The double aspect relates primarily to the second level, that is, to the different normative perspectives that make it possible to understand certain corresponding facts at the first level. When the doctrine applies, these rules at the second level are connected, on the basis of their pith and substance, with different powers at the third level, one of which may come under federal authority while the other comes under provincial authority" - The justices thereafter elaborated on those levels - See paragraphs 268 to 273.

Constitutional Law - Topic 1581

Extent of powers conferred - Double aspect doctrine - General - In March 2004, Parliament passed the Assisted Human Reproduction Act, as an exercise of the federal criminal law power (Constitution Act, 1867, s. 91(27)) - The Act dealt with such matters as the use of embryos and other human reproductive material - A constitutional reference ensued - The Supreme Court of Canada, per McLachlin, C.J.C. (Binnie, Fish and Charron, JJ., concurring), opined that the Act, as a whole, was valid criminal legislation - See paragraphs 16 to 64 - McLachlin, C.J.C., thereafter addressed the arguments relied on by LeBel and Deschamps, JJ. (Abella and Rothstein, JJ., concurring), in support of their view that the criminal law had to be circumscribed to prevent trenching on provincial powers to regulate health - See paragraphs 65 to 77 - McLachlin, C.J.C., stated that "In holding that the double aspect doctrine does not apply to this field of double occupancy, my colleagues assert a new approach of provincial exclusivity that is supported by neither precedent nor practice. Canadian constitutional jurisprudence has consistently granted wide latitude to the federal criminal law power, despite the fact that much of the criminal law has a provincial regulatory counterpart ..." - See paragraph 67 - LeBel and Deschamps, JJ. (Abella and Rothstein, JJ., concurring), in addressing McLachlin, C.J.C.'s remarks, stated that "... we must clarify a point regarding the double aspect doctrine, since the Chief Justice suggests that our approach represents a constitutional innovation. With all due respect, we must point out that she is not really considering the double aspect doctrine, because if she were, she would have to conclude that it applies to the absolute prohibitions, but not to the impugned provisions" - See paragraph 267.

Constitutional Law - Topic 1701

Extent of powers conferred - Ancillary doctrine - General - The Supreme Court of Canada, per McLachlin, C.J.C. (Binnie, Fish and Charron, JJ., concurring), discussed the ancillary powers doctrine: "The ancillary powers doctrine holds that legislative provisions which, in pith and substance, fall outside the jurisdiction of the government that enacted them, may be upheld on the basis of their connection to a valid legislative scheme. This doctrine addresses the reality in federal states that one level of government will often be unable to legislate effectively on matters within its jurisdiction without trenching on subjects that belong to the other level of government. At the same time, however, the doctrine of ancillary powers seeks to maintain the basic division of federal and provincial powers established by the Constitution Act, 1867. The Court has developed a rational, functional test to describe the required connection, with the caveat that a test of necessity will apply where the encroachment on the jurisdiction of the other level of government is substantial ... The idea of proportionality underlies the idea of a rational and functional standard for some cases and standard of necessity for others. The more an ancillary provision intrudes on the competency of the other level of government, the higher the threshold for upholding it on the basis of the ancillary powers doctrine ... In General Motors, Dickson, C.J., noted a number of factors that would determine the severity of an extrajurisdictional incursion" - McLachlin, C.J.C., thereafter summarized those factors - See paragraphs 126 to 132.

Constitutional Law - Topic 1701

Extent of powers conferred - Ancillary doctrine - General - [See first Constitutional Law - Topic 1581 ].

Constitutional Law - Topic 2950

Determination of validity of statutes or acts - Pith and substance or matter - General principles - In March 2004, the Parliament of Canada passed the Assisted Human Reproduction Act (AHRA) as an exercise of the federal criminal law power (Constitution Act, 1867, s. 91(27)) - The AHRA dealt with such matters as the use of embryos and other human reproductive material - A constitutional reference ensued respecting the validity of ss. 8 to 19, 40 to 53, 60, 61 and 68 - The Supreme Court of Canada, per LeBel and Deschamps, JJ. (Abella and Rothstein, JJ., concurring), opined that the purpose of the impugned provisions was to establish mandatory national standards for assisted human reproduction - The effects or consequences of those provisions seriously affected the practice of medicine and overlapped or conflicted with many Quebec Statutes and regulations - Thus the pith and substance of the provisions had to be characterized as the regulation of assisted human reproduction as a health service - There was a lack of a connection between the pith and substance of the impugned provisions and the federal criminal law power - Here, the impugned provisions were closely connected to and fell under various provincial heads of power (Constitution Act, s. 92(7) (hospitals), s. 92(14) (property and civil rights) and s. 92(16) (local matters)) - The impugned provisions constituted an overflow of the exercise of the federal criminal law power - If any doubt remained, the principle of subsidiarity would favour connecting the rules in question with the provinces' jurisdiction over local matters, not with the criminal law power - The ancillary powers doctrine was not applicable - Therefore, LeBel and Deschamps, JJ., opined that all the impugned provisions except ss. 60 and 61 (offence provisions), were unconstitutional - See paragraphs 199 to 281.

Constitutional Law - Topic 2950

Determination of validity of statutes or acts - Pith and substance or matter - General principles - In March 2004, Parliament passed the Assisted Human Reproduction Act, as an exercise of the federal criminal law power (Constitution Act, 1867, s. 91(27)) - The Act dealt with such matters as the use of embryos and other human reproductive material - A constitutional reference ensued - The Supreme Court of Canada, per McLachlin, C.J.C. (Binnie, Fish and Charron, JJ., concurring), concluded that the pith and substance of the Act was properly characterized as the prohibition of negative practices associated with assisted reproduction - The dominant thrust of the Act was prohibitory and the aspects that concerned the provision of health services did not rise to the level of pith and substance - The Act accomplished its purpose of prohibiting reprehensible conduct by imposing sanctions - The Act was essentially a series of prohibitions, followed by a set of subsidiary provisions for their administration - As to the effects of the Act, the legislation impacted the regulation of medical research and practice, and hospital administration; however, the doctrine of pith and substance permitted either level of government to enact laws that had "substantial impact on matters outside its jurisdiction" - The issue in such cases is to determine the dominant effect of the law - Viewed as a whole, the dominant effect of the Act was to prohibit a number of practices which Parliament considered immoral and/or which it considered a risk to health and security, not to promote the positive aspects of assisted reproduction - The dominant effect of the prohibitory and administrative provisions was to create a regime that would prevent or punish practices that might offend moral values, give rise to serious public health problems, and threaten the security of donors, donees, and persons not yet born - See paragraphs 19 to 34.

Constitutional Law - Topic 2950

Determination of validity of statutes or acts - Pith and substance or matter - General principles - In March 2004, the Parliament of Canada passed the Assisted Human Reproduction Act (AHRA) as an exercise of the federal criminal law power (Constitution Act, 1867, s. 91(27)) - The AHRA dealt with such matters as the use of embryos and other human reproductive material - A constitutional reference ensued respecting the validity of ss. 8 to 19, 40 to 53, 60, 61 and 68 - The Supreme Court of Canada, per Cromwell, J., opined that "... the essence of the impugned provisions ... is regulation of virtually every aspect of research and clinical practice in relation to assisted human reproduction" - Cromwell, J., disagreed with McLachlin, C.J.C., that the matter of the legislation was "the prohibition of negative practices associated with assisted reproduction" - Cromwell, J., was also of the opinion the essence of the legislation went far beyond that proposed by Lebel and Deschamps, JJ. (i.e., the purpose and effects of the challenged provisions were not limited, as they would hold, to "the regulation of assisted human reproduction as a health service") - See paragraphs 282 to 286.

Constitutional Law - Topic 2950

Determination of validity of statutes or acts - Pith and substance or matter - General principles - In March 2004, the Parliament of Canada passed the Assisted Human Reproduction Act (AHRA) as an exercise of the federal criminal law power (Constitution Act, 1867, s. 91(27)) - The AHRA dealt with such matters as the use of embryos and other human reproductive material - A constitutional reference ensued respecting the validity of ss. 8 to 19, 40 to 53, 60, 61 and 68 - The Supreme Court of Canada, per Cromwell, J., opined that "... the essence of the impugned provisions ... is regulation of virtually every aspect of research and clinical practice in relation to assisted human reproduction" - Cromwell, J., substantially for the reasons given by LeBel and Deschamps, JJ., agreed that the "matter" was best classified with reference to the Constitution Act, 1867, as being in relation to three areas of provincial legislative competence, i.e., hospitals (s. 92(7)), property and civil rights (s. 92(14)) and local matters (s. 92(16)) - The "matter" of the challenged provisions could not be characterized as serving any criminal law purpose recognized by the court's jurisprudence - Cromwell, J., unlike LeBel and Deschamps, JJ., opined however the above conclusion did not end the matter - Rather, in this case not each of the impugned provisions shared the constitutional characterization which attached to the "matter" of the impugned provisions viewed as a whole (e.g., ss. 8, 9 and 12) - See paragraphs 282 to 288.

Constitutional Law - Topic 6440

Federal jurisdiction (s. 91) - Criminal law - General - The Supreme Court of Canada, per McLachlin, C.J.C. (Binnie, Fish and Charron, JJ., concurring), noted that there were three requirements of a valid criminal law: (1) a prohibition; (2) backed by a penalty; (3) with a criminal law purpose - McLachlin, C.J.C., discussed what constituted a "valid criminal law purpose" in this context - McLachlin, C.J.C., opined, inter alia, that morality constituted a valid criminal law purpose - Because jurisdiction over health was shared between the provinces and federal government, Parliament's ability to pass criminal laws on the basis of health was circumscribed - To that end, criminal laws for the protection of health had to address a "legitimate public health evil" - McLachlin, C.J.C., also noted that one of the most fundamental purposes of criminal law was the protection of personal security - In the context of the federalism analysis, the protection of vulnerable groups was recognized as a valid criminal law purpose - See paragraphs 40 to 58.

Constitutional Law - Topic 6440

Federal jurisdiction (s. 91) - Criminal law - General - The Supreme Court of Canada, per LeBel and Deschamps, JJ. (Abella and Rothstein, JJ., concurring), discussed the scope of the federal criminal law power (Constitution Act, 1867, s. 91(27)) - They opined that the constituent elements of the federal criminal law power had two components, one formal (i.e., that the provision establish a prohibition and accompany it with a penalty) and the other substantive (i.e., that the provision have a justifiable criminal law purpose) - Three criteria had to be met to connect a law or a provision with that federal head of power, namely that it suppressed an evil, established a prohibition and accompanied that prohibition with a penalty - The evil had to be real and there had to be a connection between the apprehended harm and the evil in question - The requirement of a concrete basis and a reasoned apprehension of harm applied with equal force where the legislative action was based on morality - LeBel and Deschamps, JJ., disagreed with the opinion of McLachlin, C.J.C., that to justify having recourse to the criminal law by relying on morality, Parliament need only have a reasonable basis to expect that its legislation would address a concern of fundamental importance - They stated that McLachlin, C.J.C.'s approach in effect totally excluded the substantive component that served to delimit the criminal law - They opined that this went further than any previous judicial interpretation - That "limitless definition" had to be rejected because it jeopardized the constitutional balance of the federal-provincial division of powers - See paragraphs 230 to 246.

Constitutional Law - Topic 6440

Federal jurisdiction (s. 91) - Criminal law - General - The Supreme Court of Canada, per LeBel and Deschamps, JJ. (Abella and Rothstein, JJ., concurring), discussed the scope of the federal criminal law power (Constitution Act, 1867, s. 91(27)) - They stated, inter alia, that the fact that certain provisions of a statute had a connection with the criminal law did not mean that the entire statute could be justified in the same manner and on the same basis - See paragraph 242.

Constitutional Law - Topic 6440

Federal jurisdiction (s. 91) - Criminal law - General - The Supreme Court of Canada, per LeBel and Deschamps, JJ. (Abella and Rothstein, JJ., concurring), discussed the scope of the federal criminal law power (Constitution Act, 1867, s. 91(27)) - They stated, inter alia, that "Although a reasoned apprehension of harm necessarily constitutes a criminal law purpose, health, ethics and morality do not automatically arouse such an apprehension in every case. For an activity to fall under the criminal law, it must be found that there is an evil to be suppressed or prevented and that the pith and substance of the provisions in issue is the suppression of that evil or the elimination of that reasoned risk of harm. When Parliament exercises a power assigned to it, it can establish national standards. However, administrative efficiency alone cannot be relied on to justify legislative action by Parliament ... The action must be taken within the limits of an assigned head. Recourse to the criminal law power cannot therefore be based solely on concerns for efficiency or consistency, as such concerns, viewed in isolation, do not fall under the criminal law. The three criteria of the criminal law must be met" - See paragraphs 242 to 244.

Constitutional Law - Topic 6440

Federal jurisdiction (s. 91) - Criminal law - General - The Supreme Court of Canada, per LeBel and Deschamps, JJ. (Abella and Rothstein, JJ., concurring), discussed the scope of the federal criminal law power (Constitution Act, 1867, s. 91(27)) - They stated, inter alia, that "the subjects set out in the lists of federal and provincial powers represent an organizational framework for constitutional powers that is designed to establish a federal scheme and enable the scheme to develop in accordance with its fundamental structures. As the Court noted in the Firearms Reference, Canada's constitutional balance of powers requires each level of government to respect the other's jurisdiction ... The principles underlying the balance of Canadian federalism themselves require that rules that relate in pith and substance to the criminal law power be distinguished from those that, although having a regulatory aspect, are intended to govern fields falling under other - exclusive or concurrent - federal or provincial powers" - See paragraphs 245 and 246.

Constitutional Law - Topic 6440

Federal jurisdiction (s. 91) - Criminal law - General - In March 2004, Parliament passed the Assisted Human Reproduction Act, as an exercise of the federal criminal law power (Constitution Act, 1867, s. 91(27)) - The Act dealt with such matters as the use of embryos and other human reproductive material - The Supreme Court of Canada, per LeBel and Deschamps, JJ. (Abella and Rothstein, JJ., concurring), discussed the scope of the federal criminal law power in this context - They stated, inter alia, that "In the end, if we were to adopt the Attorney General of Canada's interpretation and accept that the fact that a technology is 'novel' justifies, on its own, resorting to the criminal law power, nearly every new medical technology could be brought within federal jurisdiction. This view of the criminal law is incompatible with the federal nature of Canada; it not only upsets the constitutional balance of powers in the field of health, but also undermines the very definition of federalism. We cannot, therefore, accept the argument that the criminal law power gives Parliament an unconditional substantive right to take action to protect morality, safety and public health. The Attorney General of Canada has in the alternative invoked no other powers that could serve as a basis for the exercise of Parliament's legislative authority. As we explained above, in determining whether a provision is valid, the court must examine, inter alia, the overflow from the exclusive jurisdiction of the government that enacted it. Often, the overflow is proved by demonstrating that the rules fall within the jurisdiction of the other level of government, and the Attorney General of Quebec has in fact done so in the instant case" - See paragraphs 256 to 258.

Constitutional Law - Topic 6440

Federal jurisdiction (s. 91) - Criminal law - General - In March 2004, Parliament passed the Assisted Human Reproduction Act, as an exercise of the federal criminal law power (Constitution Act, 1867, s. 91(27)) - The Act dealt with such matters as the use of embryos and other human reproductive material - A constitutional reference ensued - The Supreme Court of Canada, per McLachlin, C.J.C. (Binnie, Fish and Charron, JJ., concurring), opined that the Act, as a whole, was valid criminal legislation - See paragraphs 16 to 64 - McLachlin, C.J.C., thereafter addressed the arguments relied on by LeBel and Deschamps, JJ. (Abella and Rothstein, JJ., concurring), in support of their view that the criminal law had to be circumscribed to prevent trenching on provincial powers to regulate health - McLachlin, C.J.C., could not accept her colleagues' argument that recognition of the Act as valid criminal law would "place us on a slippery slope leading to federal dominion over a vast array of risky medical practices" - See paragraph 73 - Nor could she accept her colleague's suggestion that the beneficial aspects of assisted reproduction ousted the possibility of a valid criminal law purpose - See paragraph 75.

Constitutional Law - Topic 6440

Federal jurisdiction (s. 91) - Criminal law - General - In March 2004, Parliament passed the Assisted Human Reproduction Act, as an exercise of the federal criminal law power (Constitution Act, 1867, s. 91(27)) - The Act dealt with such matters as the use of embryos and other human reproductive material - A constitutional reference ensued - The Supreme Court of Canada, per McLachlin, C.J.C. (Binnie, Fish and Charron, JJ., concurring), opined that the Act, as a whole, was valid criminal legislation - McLachlin, C.J.C., thereafter addressed the arguments relied on by LeBel and Deschamps, JJ. (Abella and Rothstein, JJ., concurring), in support of their view that the criminal law had to be circumscribed to prevent trenching on provincial powers to regulate health - See paragraphs 65 to 77 - McLachlin, C.J.C., stated that "I do not share the view that the Act can be characterized as legislation in relation to the positive aspects of assisted reproduction. However, my colleagues' argument on this point raises a more fundamental issue. Their reasoning, with respect, substitutes a judicial view of what is good and what is bad for the wisdom of Parliament. Similar arguments have been rejected in other contexts. In Malmo-Levine, for example, it was argued that use of marijuana benefits many Canadians and not just those in medical need. My colleagues break new ground in enlarging the judiciary's role in assessing valid criminal law objectives. It is ground on which I respectfully decline to tread" - See paragraph 76.

Constitutional Law - Topic 6440

Federal jurisdiction (s. 91) - Criminal law - General - [See third and fifth Constitutional Law - Topic 5.1 ].

Constitutional Law - Topic 6504

Federal jurisdiction (s. 91) - Criminal law - Respecting particular matters - Assisted human reproduction - In March 2004, Parliament passed the Assisted Human Reproduction Act as an exercise of the federal criminal law power (Constitution Act, 1867, s. 91(27)) - The Act contained a prohibition regime, supported by provisions designed to administer and enforce its prohibitions, relating to such matters as use of embryos and other human reproductive material - The following constitutional question was posed on a reference: "Do ss. 8 to 19, 40 to 53, 60, 61 and 68 of the Assisted Human Reproduction Act, S.C. 2004, c. 2, exceed, in whole or in part, the legislative authority of the Parliament of Canada under the Constitution Act, 1867?" - The Supreme Court of Canada held that ss. 8, 9, 12, 19 and 60 were constitutional - Sections 10, 11, 13, 14 to 18, 40(2), (3), (3.1), (4) and (5) and ss. 44(2) and (3) exceeded Parliament's legislative authority under the Constitution Act, 1867 - Sections 40(1), (6) and (7), 41 to 43, 44(1) and (4), 45 to 53, 61 and 68 were constitutional to the extent that they related to constitutionally valid provisions - This conclusion resulted from three separate opinions of the court - See paragraphs 1 to 294.

Constitutional Law - Topic 6504

Federal jurisdiction (s. 91) - Criminal law - Respecting particular matters - Assisted human reproduction - In March 2004, Parliament passed the Assisted Human Reproduction Act, as an exercise of the federal criminal law power (Constitution Act, 1867, s. 91(27)) - The Act dealt with such matters as the use of embryos and other human reproductive material - A constitutional reference ensued - At issue was, inter alia, whether certain provisions of the Act were ultra vires the federal criminal law power - The Supreme Court of Canada, per Cromwell, J., opined that ss. 8 (prohibition on use of reproductive material without consent), 9 (prohibition respecting ovum and sperm obtained from minors), and 12 (controls on reimbursements for expenditures respecting donations of reproductive material, surrogacy, etc.) were validly enacted under Parliament's criminal law power (i.e., they were in purpose and effect prohibited negative practices associated with assisted reproduction and they fell within the traditional ambit of the federal criminal law power) - Cromwell, J., stated further that "As I would affirm the constitutionality of s. 12 of the Act, I would also uphold the constitutionality of provisions which set up the mechanisms to implement it. I therefore conclude that ss. 40(1), (6) and (7), 41 to 43 and 44(1) and (4), to the extent that they relate to provisions of the Act, which are constitutional, were properly enacted by Parliament in accordance with the federal criminal law power. I similarly conclude that ss. 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. I agree with the Chief Justice's analysis and conclusion at paras. 152-54 of her reasons that s. 68 is constitutional, although its operation will of course be limited to constitutional sections of the Act. As for s. 19 of the Act, I can see no constitutional objection to it given that the other provisions establishing the Assisted Human Reproduction Agency of Canada are not contested" - See paragraphs 282 to 294.

Constitutional Law - Topic 6504

Federal jurisdiction (s. 91) - Criminal law - Respecting particular matters - Assisted human reproduction - In March 2004, Parliament passed the Assisted Human Reproduction Act, as an exercise of the federal criminal law power (Constitution Act, 1867, s. 91(27)) - The Act dealt with such matters as the use of embryos and other human reproductive material - A constitutional reference ensued - The Supreme Court of Canada, per McLachlin, C.J.C. (Binnie, Fish and Charron, JJ., concurring), opined that the Act, as a whole, was valid criminal legislation - See paragraphs 16 to 64.

Constitutional Law - Topic 6504

Federal jurisdiction (s. 91) - Criminal law - Respecting particular matters - Assisted human reproduction - [See fifth Constitutional Law - Topic 5.1, third Constitutional Law - Topic 1581 and all Criminal Law - Topic 8302 ].

Constitutional Law - Topic 6505

Federal jurisdiction (s. 91) - Criminal law - Respecting particular matters - Health - [See third, fourth and fifth Constitutional Law - Topic 5.1 , third Constitutional Law - Topic 1581 , first, second and third Constitutional Law - Topic 2950 , first, fourth, sixth, seventh and eighth Constitutional Law - Topic 6440 and first Constitutional Law - Topic 6504 ].

Constitutional Law - Topic 7204

Provincial jurisdiction (s. 92) - Property and civil rights - General - Extent of power or subject matter - [See Constitutional Law - Topic 7501 ].

Constitutional Law - Topic 7501

Provincial jurisdiction (s. 92) - Matters of local or private nature - General - The Supreme Court of Canada, per LeBel and Deschamps, JJ. (Abella and Rothstein, JJ., concurring), discussed the scope of the provincial legislative powers over property and civil rights (Constitution Act, 1867, s. 92(14) and local matters (s. 92(16)) - See paragraphs 262 to 266.

Criminal Law - Topic 8302

Assisted human reproduction - Legislation (incl. history and validity) - In March 2004, Parliament passed the Assisted Human Reproduction Act, as an exercise of the federal criminal law power (Constitution Act, 1867, s. 91(27)) - The Act dealt with such matters as the use of embryos and other human reproductive material - A constitutional reference ensued - The Supreme Court of Canada, per McLachlin, C.J.C. (Binnie, Fish and Charron, JJ., concurring), opined that the pith and substance of the Act was properly characterized as the prohibition of negative practices associated with assisted reproduction - Further, the matter of the Act came within s. 91(27) (i.e., came within the scope of the federal criminal law power) - The Act, properly characterized, imposed prohibitions, backed by penalties, thereby fulfilling the first two requirements of a valid criminal law - Further, the Act served a valid criminal law purpose - Upholding morality was the principal criminal law objective of the Act - The objects of prohibiting public health evils and promoting security played supporting roles with respect to some provisions - Taken together, those objects confirmed that the Act served valid criminal law purposes - See paragraphs 35 to 60.

Criminal Law - Topic 8302

Assisted human reproduction - Legislation (incl. history and validity) - The Supreme Court of Canada, per LeBel and Deschamps, JJ. (Abella and Rothstein, JJ., concurring), reviewed the history of the Assisted Human Reproduction Act (AHR Act) - See paragraphs 160 to 163 - They also reviewed the structure and content of the Act, noting that ss. 5 to 9 listed prohibited activities, while ss. 10 to 13 set out controlled activities - LeBel and Deschamps, JJ., opined that substantive and formal distinctions were to be drawn between prohibited activities and controlled activities - "In sum, the substantive and formal distinctions between controlled activities and activities that are prohibited completely stem from the legislative history, from the nature of the activities and from how they are presented in the AHR Act. The Chief Justice [in her separate opinion] interprets the AHR Act very differently. She disregards its legislative history, even criticizing us for attaching importance to the Baird Report. She takes no account of the distinction the Commission drew in its report between prohibited activities and controlled activities. In this regard, she asserts that the fact that the Commission recognized the positive aspects of assisted human reproduction does not mean that Parliament shared the Commission's concerns. We can only emphasize that there is no factual basis whatsoever for the Chief Justice's interpretation. Her approach is contrary to the usual approach to constitutional analysis ... We therefore prefer to keep the legislative history and the distinctions between prohibited and controlled activities in mind" - See paragraphs 164 to 177.

Criminal Law - Topic 8302

Assisted human reproduction - Legislation (incl. history and validity) - The Assisted Human Reproduction Act (2004), was enacted by Parliament as an exercise of the federal criminal law power (Constitution Act, 1867, s. 91(27)) - A constitutional reference ensued - At issue was, inter alia, whether s. 8 of the Act was ultra vires the federal criminal law power - Section 8 prohibited the use of reproductive material for the artificial creation of embryos, unless the donor had consented in accordance with the regulations - It was backed by penalties, specified in s. 60 of the Act - The Supreme Court of Canada, per McLachlin, C.J.C. (Binnie, Fish and Charron, JJ., concurring), held that s. 8 was grounded in valid criminal law purposes, in particular a morality interest - McLachlin, C.J.C., stated that "At the heart of s. 8 lies the fundamental importance that we ascribe to human autonomy. The combination of the embryo's moral status and the individual's interest in his or her own genetic material justify the incursion of the criminal law into the field of consent. There is a consensus in society that the consensual use of reproductive material implicates fundamental notions of morality. This confirms that s. 8 is valid criminal law" - See paragraphs 89 and 90 - Cromwell, J., for his own reasons, agreed that s. 8 was constitutional - See paragraphs 289 to 291.

Criminal Law - Topic 8302

Assisted human reproduction - Legislation (incl. history and validity) - The Assisted Human Reproduction Act (2004), was enacted by Parliament as an exercise of the federal criminal law power (Constitution Act, 1867, s. 91(27)) - A constitutional reference ensued - At issue was, inter alia, whether s. 9 of the Act was ultra vires the federal criminal law power - Section 9 absolutely prohibited a person from obtaining sperm or ova from donors under 18 years of age, except for the purpose of preserving the sperm or ova or for the purpose of creating a human being that the person reasonably believed would be raised by the donor - It was backed by penalties set out in s. 60 - The Supreme Court of Canada, per McLachlin, C.J.C. (Binnie, Fish and Charron, JJ., concurring), held that s. 9 was within the scope of criminal law - McLachlin, C.J.C., stated that "The Attorney General of Canada argues that the purpose of s. 9 is to protect vulnerable youth from exploitation and undue pressure to donate reproductive material for the benefit of third parties. The protection of vulnerable groups is a long-standing concern of the criminal law: Malmo-Levine, at para. 76; Morgentaler. Coupled with the moral interest in controlling the use of one's genetic material, this places the s. 9 prohibition securely within the scope of the criminal law" - See paragraphs 91 and 92 - Cromwell, J., for his own reasons, agreed that s. 9 was constitutional - See paragraphs 289 to 291.

Criminal Law - Topic 8302

Assisted human reproduction - Legislation (incl. history and validity) - The Assisted Human Reproduction Act (AHRA), was enacted by Parliament as an exercise of the federal criminal law power (Constitution Act, 1867, s. 91(27)) - A constitutional reference ensued - At issue was, inter alia, whether s. 10 of the AHRA was ultra vires the federal criminal law power - Section 10 in essence prohibited dealing with human reproductive material without a licence - The Supreme Court of Canada, per McLachlin, C.J.C. (Binnie, Fish and Charron, JJ., concurring), opined that s. 10 targeted a number of serious health risks (public health evils) - The health aspects of s. 10 were buttressed by morality concerns - Section 10 was valid criminal legislation - See paragraphs 96 to 105 - However, Lebel and Deschamps, JJ. (Abella and Rothstein, JJ., concurring), opined that s. 10 exceeded the legislative authority of the Parliament of Canada under the Constitution Act - The pith and substance of the provisions was the regulation of assisted human reproduction as a health service - There was a lack of a connection between the pith and substance of the impugned provisions and the federal criminal law power - Here, the impugned provisions were closely connected to and fell under various provincial heads of power - See paragraphs 199 to 281 - Cromwell, J., for his own reasons, agreed that s. 10 exceeded the legislative authority of Parliament - See paragraph 294.

Criminal Law - Topic 8302

Assisted human reproduction - Legislation (incl. history and validity) - The Assisted Human Reproduction Act (2004), was enacted by Parliament as an exercise of the federal criminal law power (Constitution Act, 1867, s. 91(27)) - A constitutional reference ensued - At issue was, inter alia, whether s. 11 of the Act was ultra vires the federal criminal law power - Section 11 prohibited a person from combining the human genome with the genomes of other species (transgenic engineering) unless permitted by regulations and licence - The prohibition was backed by penalties set out in s. 61 of the Act - The Attorney General of Canada argued that "transgenic science 'could result in a combination of genes that would make it possible to create an entity with both human and animal characteristics' ... This, it argues, has 'profound ethical and moral implications ... for our idea of what a human being is and the integrity of intrinsic human characteristics' ..." - The Supreme Court of Canada, per Lebel and Deschamps, JJ. (Abella and Rothstein, JJ., concurring), and Cromwell, J., in separate reasons, held that s. 11 exceeded the legislative authority of the Parliament of Canada - See paragraphs 199 to 294 - McLachlin, C.J.C. (Binnie, Fish and Charron, JJ., concurring), opined that s. 11 was valid criminal law - See paragraphs 106 to 109.

Criminal Law - Topic 8302

Assisted human reproduction - Legislation (incl. history and validity) - The Assisted Human Reproduction Act (2004), was enacted by Parliament as an exercise of the federal criminal law power (Constitution Act, 1867, s. 91(27)) - A constitutional reference ensued - At issue was, inter alia, whether s. 12 of the Act was ultra vires the federal criminal law power - Section 12 prohibited reimbursing donors for expenditures incurred in the course of donating sperm or ova, for the maintenance or transport of an in vitro embryo, or for expenditures incurred by a surrogate mother, except in accordance with the regulations and a licence - The section also prohibited reimbursement for expenditures without receipts, and the reimbursement of surrogate mothers for the loss of work-related income without medical certification that work might pose a risk to her health or that of the embryo - The prohibitions in s. 12 were backed by the penalties in s. 61 - The Supreme Court of Canada, per McLachlin, C.J.C. (Binnie, Fish and Charron, JJ., concurring), noted that s. 12 was complementary to ss. 6 and 7 (prohibitions on the commercialization of reproduction) which were conceded to be valid criminal law - Section 12 was rooted in the same concerns as ss. 6 and 7 and was valid criminal law - See paragraphs 110 to 112 - Cromwell, J., for his own reasons, agreed that s. 12 was constitutional - See paragraphs 290 to 292.

Criminal Law - Topic 8302

Assisted human reproduction - Legislation (incl. history and validity) - The Assisted Human Reproduction Act (2004), was enacted by Parliament as an exercise of the federal criminal law power (Constitution Act, 1867, s. 91(27)) - A constitutional reference ensued - At issue was, inter alia, whether s. 13 of the Act was ultra vires the federal criminal law power - Section 13 was an absolute prohibition on the performance of licensed activities in unlicensed premises, backed by a penalty set out in s. 61 - The Supreme Court of Canada, per Lebel and Deschamps, JJ. (Abella and Rothstein, JJ., concurring), and Cromwell, J., in separate reasons, held that s. 13 exceeded the legislative authority of the Parliament of Canada - See paragraphs 157 to 294 - McLachlin, C.J.C. (Binnie, Fish and Charron, JJ., concurring), opined that s. 13 addressed serious harms both to society and the individuals involved in assisted reproduction procedures and was valid criminal law - See paragraphs 113 to 121.

Criminal Law - Topic 8302

Assisted human reproduction - Legislation (incl. history and validity) - In March 2004, Parliament passed the Assisted Human Reproduction Act, as an exercise of the federal criminal law power (Constitution Act, 1867, s. 91(27)) - The Act dealt with such matters as the use of embryos and other human reproductive material - A constitutional reference ensued - At issue was, inter alia, whether the administrative provisions of the Act were ultra vires the federal criminal law power - Sections 14 to 19 set up a system of information management - The Supreme Court of Canada, per McLachlin, C.J.C. (Binnie, Fish and Charron, JJ., concurring), opined that all the impugned provisions were valid - The prohibitions in ss. 8 to 13 fell within the federal criminal law power and the remaining sections were ancillary to that criminal law scheme, on the basis of the application of the rational and functional connection test - In particular ss. 14 to 19 were closely tied to the valid criminal prohibitions in ss. 5 to 13 - Those prohibitions filled a gap by addressing the practical considerations inherent in the functioning of the legislative scheme - Because they did so in a tailored manner, they constituted a proper exercise of ancillary powers - See paragraphs 124 to 146 - Cromwell, J., for his own reasons, agreed that s. 19 was constitutional - See paragraph 293 - However, LeBel and Deschamps, JJ. (Abella and Rothstein, JJ., concurring), and Cromwell, J., held that ss. 14 to 18 exceeded the legislative authority of Parliament - See paragraphs 157 to 281 and 294.

Criminal Law - Topic 8302

Assisted human reproduction - Legislation (incl. history and validity) - [See first and second Constitutional Law - Topic 6504 ].

Statutes - Topic 1641

Interpretation - Extrinsic aids - Legislative history - General - [See second Criminal Law - Topic 8302 ].

Cases Noticed:

City National Leasing Ltd. v. General Motors of Canada Ltd., [1989] 1 S.C.R. 641; 93 N.R. 326; 32 O.A.C. 332, refd to. [paras. 16, 187, 288].

Kirkbi AG et al. v. Ritvik Holdings Inc. et al., [2005] 3 S.C.R. 302; 341 N.R. 234; 2005 SCC 65, refd to. [paras. 16, 187].

Kitkatla Indian Band et al. v. British Columbia (Minister of Small Business, Tourism and Culture) et al., [2002] 2 S.C.R. 146; 286 N.R. 131; 165 B.C.A.C. 1; 270 W.A.C. 1; 2002 SCC 31, refd to. [paras. 16, 184].

Ward v. Canada (Attorney General) et al., [2002] 1 S.C.R. 569; 283 N.R. 201; 211 Nfld. & P.E.I.R. 125; 633 A.P.R. 125; 2002 SCC 17, refd to. [para. 16].

Reference Re Employment Insurance Act, [2005] 2 S.C.R. 669; 339 N.R. 279; 2005 SCC 56, refd to. [para. 17].

Canadian National Transportation Ltd. et al. v. Canada (Attorney General), [1983] 2 S.C.R. 206; 49 N.R. 241; 49 A.R. 39, refd to. [paras. 18, 288].

Alberta (Attorney General) v. Canada (Attorney General), [1947] A.C. 503 (P.C.), refd to. [para. 18].

Canadian Western Bank et al. v. Alberta, [2007] 2 S.C.R. 3; 362 N.R. 111; 409 A.R. 207; 402 W.A.C. 207; 2007 SCC 22, refd to. [paras. 19, 183].

Anti-Inflation Act, Re, [1976] 2 S.C.R. 373; 9 N.R. 541, refd to. [para. 19].

Reference Re Firearms Act (Can.), [2000] 1 S.C.R. 783; 254 N.R. 201; 261 A.R. 201; 225 W.A.C. 201; 2000 SCC 31, refd to. [paras. 35, 188].

R. v. Morgentaler, [1993] 3 S.C.R. 463; 157 N.R. 97; 125 N.S.R.(2d) 81; 349 A.P.R. 81, refd to. [paras. 36, 184].

R. v. Furtney et al., [1991] 3 S.C.R. 89; 129 N.R. 241; 51 O.A.C. 299, refd to. [paras. 36, 185].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [paras. 36, 184, 236].

R. v. Hydro-Québec, [1997] 3 S.C.R. 213; 217 N.R. 241, refd to. [paras. 36, 237].

Rothmans, Benson & Hedges Inc. v. Saskatchewan et al., [2005] 1 S.C.R. 188; 331 N.R. 116; 257 Sask.R. 171; 342 W.A.C. 171; 2005 SCC 13, refd to. [para. 38].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 38].

Ross v. Registrar of Motor Vehicles (Ont.) and Ontario (Attorney General), [1975] 1 S.C.R. 5; 1 N.R. 9, refd to. [para. 38].

Board of Commerce Act, 1919, and the Combines and Fair Prices Act, 1919, In re, [1922] 1 A.C. 191 (P.C.), refd to. [paras. 40, 230].

Proprietary Articles Trade Association v. Canada (Attorney General), [1931] A.C. 310 (P.C.), refd to. [paras. 40, 231].

Reference Re Validity of Section 5(a) of Dairy Industry Act (Margarine Case), [1949] S.C.R. 1, refd to. [paras. 41, 232].

R. v. Boggs, [1981] 1 S.C.R. 49; 34 N.R. 520, refd to. [para. 41].

R. v. Wetmore et al., [1983] 2 S.C.R. 284; 49 N.R. 286, refd to. [paras. 41, 242].

R. v. Malmo-Levine (D.) et al., [2003] 3 S.C.R. 571; 314 N.R. 1; 191 B.C.A.C. 1; 314 W.A.C. 1; 2003 SCC 74, refd to. [paras. 41, 236].

R. v. Butler and McCord, [1992] 1 S.C.R. 452; 134 N.R. 81; 78 Man.R.(2d) 1; 16 W.A.C. 1, refd to. [paras. 44, 236].

Russell v. R. (1882), 7 App. Cas. 829 (P.C.), refd to. [para. 49].

Schneider v. British Columbia (Attorney General) et al., [1982] 2 S.C.R. 112; 43 N.R. 91, refd to. [paras. 52, 264].

R. v. Morgentaler, [1976] 1 S.C.R. 616; 4 N.R. 277, refd to. [para. 58].

114957 Canada ltée (Spraytech, Société d'arrosage) et al. v. Hudson (Town), [2001] 2 S.C.R. 241; 271 N.R. 201; 2001 SCC 40, refd to. [paras. 70, 183].

Monsanto Canada Inc. v. Superintendent of Financial Services (Ont.) et al., [2004] 3 S.C.R. 152; 324 N.R. 259; 189 O.A.C. 201; 2004 SCC 54, refd to. [para. 84].

Siemens et al. v. Manitoba (Attorney General) et al., [2003] 1 S.C.R. 6; 299 N.R. 267; 173 Man.R.(2d) 1; 293 W.A.C. 1; 2003 SCC 3, refd to. [paras. 103, 185].

Global Securities Corp. v. British Columbia Securities Commission et al., [2000] 1 S.C.R. 494; 252 N.R. 290; 134 B.C.A.C. 207; 219 W.A.C. 207; 2000 SCC 21, refd to. [para. 125].

Reference Re Goods and Services Tax, [1992] 2 S.C.R. 445; 138 N.R. 247; 127 A.R. 161; 20 W.A.C. 161, refd to. [para. 127].

Papp v. Papp, [1970] 1 O.R. 331 (C.A.), refd to. [paras. 138, 185].

Ontario Public Service Employees' Union et al. v. Ontario (Attorney General) et al., [1987] 2 S.C.R. 2; 77 N.R. 321; 23 O.A.C. 161, refd to. [para. 139].

Lord's Day Alliance of Canada v. British Columbia (Attorney General), [1959] S.C.R. 497, refd to. [para. 153].

Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; 228 N.R. 203, refd to. [para. 182].

Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321, refd to. [para. 184].

Krieger et al. v. Law Society of Alberta, [2002] 3 S.C.R. 372; 293 N.R. 201; 312 A.R. 275; 281 W.A.C. 275; 2002 SCC 65, refd to. [para. 185].

Law Society of British Columbia v. Mangat, [2001] 3 S.C.R. 113; 276 N.R. 339; 157 B.C.A.C. 161; 256 W.A.C. 161; 2001 SCC 67, refd to. [para. 185].

Rio Hotel Ltd. v. Liquor Licensing Board (N.B.), New Brunswick (Attorney General) and Saskatchewan (Attorney General), [1987] 2 S.C.R. 59; 77 N.R. 104; 81 N.B.R.(2d) 328; 205 A.P.R. 328, refd to. [para. 185].

Multiple Access Ltd. v. McCutcheon et al., [1982] 2 S.C.R. 161; 44 N.R. 181, refd to. [para. 185].

Alberta Natural Gas Tax Reference, [1982] 1 S.C.R. 1004; 42 N.R. 361; 37 A.R. 541, refd to. [para. 185].

Robinson v. Countrywide Factors Ltd. - see Kozan Furniture (Yorkton) Ltd. Estate v. Countrywide Factors Ltd.

Kozan Furniture (Yorkton) Ltd. Estate v. Countrywide Factors Ltd., [1978] 1 S.C.R. 753; 14 N.R. 91, refd to. [para. 185].

Ontario (Attorney General) v. Barfried Enterprises Ltd., [1963] S.C.R. 570, refd to. [para. 185].

Smith v. R., [1960] S.C.R. 776, refd to. [para. 185].

Ontario (Attorney General) v. Canada (Attorney General), [1896] A.C. 348 (P.C.), refd to. [para. 185].

Ontario (Attorney General) v. Canada (Attorney General), [1894] A.C. 189 (P.C.), refd to. [para. 185].

Hodge v. R. (1883), 9 App. Cas. 117 (Ont. P.C.), refd to. [para. 185].

Toronto Star Newspapers Ltd. et al. v. Canada et al., [2010] 1 S.C.R. 721; 402 N.R. 206; 482 A.R. 66; 490 W.A.C. 66; 263 O.A.C. 4; 2010 SCC 21, refd to. [para. 190].

R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161; 2001 SCC 2, refd to. [para. 239].

Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123; 109 N.R. 81; 68 Man.R.(2d) 1, refd to. [para. 239].

Labatt Breweries of Canada Ltd. v. Canada (Attorney General) and Quebec (Attorney General), [1980] 1 S.C.R. 914; 30 N.R. 496, refd to. [para. 241].

Eldridge et al. v. British Columbia (Attorney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81, refd to. [para. 260].

Workmen's Compensation Board v. Canadian Pacific Railway Co., [1920] A.C. 184 (P.C.), refd to. [para. 263].

Provincial Secretary (P.E.I.) v. Egan, [1941] S.C.R. 396, refd to. [para. 264].

McNeil v. Nova Scotia Board of Censors, [1978] 2 S.C.R. 662; 19 N.R. 570; 25 N.S.R.(2d) 128; 36 A.P.R. 128, refd to. [para. 264].

Dupond v. Montreal (City), [1978] 2 S.C.R. 770; 19 N.R. 478, refd to. [para. 264].

Scowby et al. v. Glendinning et al., [1986] 2 S.C.R. 226; 70 N.R. 241; 51 Sask.R. 208, refd to. [para. 278].

Ontario (Attorney General) v. Chatterjee, [2009] 1 S.C.R. 624; 387 N.R. 206; 249 O.A.C. 355; 2009 SCC 19, refd to. [para. 284].

Statutes Noticed:

Assisted Human Reproduction Act, S.C. 2004, c. 2, sect. 2 [para. 164]; sect. 8, sect. 9, sect. 10, sect. 11, sect. 12, sect. 13, sect. 14, sect. 15, sect. 16, sect. 17, sect. 18, sect. 19, sect. 40, sect. 41, sect. 42, sect. 43, sect. 44, sect. 45, sect. 46, sect. 47, sect. 48, sect. 49, sect. 50, sect. 51, sect. 52, sect. 53, sect. 60, sect. 61, sect. 68 [para. 156].

Civil Code of Québec, R.S.Q. 1977, c. C-1991, art. 10 [para. 220].

Clinical and research activities relating to assisted procreation, Act respecting, R.S.Q. 1977, c. A-5.01, generally [para. 7].

Code of Ethics of Physicians - see Professional Code Regulations (Qué.).

Constitution Act, 1867, sect. 91(27) [para. 6 et seq.]; sect. 92(7) [para. 259]; sect. 92(13) [para. 259]; sect. 92(16) [paras. 66, 259].

Health services and social services, Act respecting, R.S.Q. 1977, c. S-4.2, sect. 9 [para. 220]; sect. 17 [para. 222]; sect. 79, sect. 339 [para. 224]; sect. 413.2, sect. 414 [para. 223]; sect. 437 [para. 221].

Medical laboratories, organ, tissue, gamete and embryo conservation, and the disposal of human bodies, Act respecting, R.S.Q. 1977, c. L-O.2, sect. 31 [para. 221].

Professional Code Regulations (Qué.), Code of Ethics of Physicians, R.R.Q. 1981, c. M-9, r. 4.1, sect. 28, sect. 29, sect. 49 [para. 220].

Authors and Works Noticed:

Baird Commission Report - see Canada, Royal Commission on New Reproductive Technologies, Proceed with Care: Final Report of the Royal Commission on New Reproductive Technologies.

Baylis, Françoise, The Regulation of Assisted Human Reproductive Technologies and Related Research: A Public Health, Safety and Morality Argument (2006), p. 7000 [para. 102].

Beaudoin, Gérald-A., La Constitution du Canada: institutions, partage des pouvoirs, Charte canadienne des droits et libertés (3rd Ed. 2004), generally [para. 262].

Bissonnette, François, Rapport d'expertise, La procréation médicalement assistée au Canada et au Quebec - Survol et enjeux (2006), pp. 4, 7 [para. 212].

Bordet, Sylvie, Feldman, Sabrina, and Knoppers, Bartha Maria, Legal Aspects of Animal-Human Combinations in Canada (2007), 1 M.H.L.P. 83, p. 85 [para. 217].

Brun, Henri, Tremblay, Guy, and Brouillet, Eugénie, Droit constitutionnel (5th Ed. 2008), generally [para. 262].

Campbell, Angela, Defining a Policy Rationale for the Criminal Regulation of Reproductive Technologies (2002), 11 Health L. Rev. 26, generally [para. 107].

Canada, Hansard, House of Commons Debates, vol. 138, No. 072, 2nd Sess., 37th Parliament (March 18, 2003), p. 4335 [para. 216].

Canada, Hansard, House of Commons Debates, vol. 137, No. 188, 1st Sess., 37th Parliament (May 21, 2002), generally [para. 253].

Canada, Hansard, House of Commons Debates, vol. 137, No. 192, 1st Sess., 37th Parliament (May 27, 2002), generally [para. 253].

Canada, Health Canada, Final Report of the Discussion Group on Embryo Research, Research on Human Embryos in Canada (1995), pp. 26 [para. 207]; 86, 109, 140 [para. 209].

Canada, Health Canada News Release 1995-97: Health Minister Calls for Moratorium on Applying Nine Reproductive Technologies and Practices in Humans (July 27, 1995), generally [paras. 166, 207].

Canada, Health Canada, Propositions for Legislation Governing Assisted Human Reproduction: An Overview (2001), generally [para. 157].

Canada, House of Commons, Evidence of the Standing Committee on Health (May 3, 2001), Online: http://www2.parl.gc.ca/ HousePublications/Publication.aspx?DocId=1040776&Mode=1&Parl=37&Ses=1&Language=E, paras. 11:30 [para. 279]; 11:35 [para. 253].

Canada, House of Commons, Standing Committee on Health, No. 013, 2nd Sess., 37th Parliament (December 9, 2002), Online: http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=628385&Language+E&Mode+1&Parl=37&Ses=1, paras. 10:25 to 10:35 [para. 215].

Canada, Royal Commission on New Reproductive Technologies, Proceed with Care: Final Report of the Royal Commission on New Reproductive Technologies (Baird Commission Report) (1993), generally [paras. 5, 160, 202]; pp. 19 [para. 204]; 22 [para. 204]; 28 [para. 100]; 82 [para. 249]; 86 [para. 168]; 108 [para. 166]; 109 [para. 169]; 112, 113 [para. 205]; 140 [paras. 168, 249]; 637, 718, 896 [para. 100]; 943 [para. 97]; 1022 [para. 203].

Choudhry, Sujit, Gaudreault-DesBiens, Jean-François, and Sossin, Lorne, Dilemmas of Solidarity: Rethinking Redistribution in the Canadian Federation (2006), p. 193 [para. 273].

Coté-Harper, Gisèle, Rainville, Pierre, and Turgeon, Jean, Traité de droit pénal canadien (4th Ed. 1998), pp. 61, 62 [para. 236].

Gaudreault-DesBiens, Jean-François, The Irreducible Federal Necessity of Jurisdictional Autonomy, and the Irreducibility of Federalism to Jurisdictional Autonomy, in Choudhry, Sujit, Gaudreault-DesBiens, Jean-François, and Sossin, Lorne, Dilemmas of Solidarity: Rethinking Redistribution in the Canadian Federation (2006), p. 193 [para. 273].

Great Britain, Scottish Home Department, Report of the Departmental Committee on Artificial Insemination (1960), paras. 259 to 263 [para. 101].

Healy, Patrick, Statutory Prohibitions and the Regulation of New Reproductive Technologies under Federal Law in Canada (1995), 40 McGill L.J. 905, pp. 915 [para. 278]; 941 [para. 219].

Hogg, Peter W., Constitutional Law of Canada (5th Ed.) (2007 Looseleaf Supp.) (2009 Update, Release 1), pp. 5-13 [para. 183]; 15-9 [para. 32]; 17-2, 17-3 [para. 134]; 21-2 [para. 263].

Lederman, W.R., Mr. Justice Rand and Canada's Federal Constitution (1979-1980), 18 U.W. Ontario L. Rev. 31, p. 39 [para. 232].

Mundell, D.W., Tests for Validity of Legislation under the British North America Act: A Reply to Professor Laskin (1955) 3 Can. Bar Rev. 915, p. 928 [para. 22].

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Counsel:

René LeBlanc, Peter W. Hogg and Glenn Rivard, for the appellant;

Jocelyne Provost and Maude Randoin, for the respondent;

Gaétan Migneault, for the intervenor, the Attorney General of New Brunswick;

Graeme G. Mitchell, Q.C., for the intervenor, the Attorney General of Saskatchewan;

Lillian Riczu and Randy Steele, for the intervenor, the Attorney General of Alberta;

Written submissions only for the intervenor, Michael Awad;

Written submissions only by Don Hutchinson and Faye Sonier for the intervenors, the Canadian Conference of Catholic Bishops and the Evangelical Fellowship of Canada.

Solicitors of Record:

Department of Justice, Ottawa, Ontario, for the appellant;

Attorney General of Quebec, Montréal, Quebec, for the respondent;

Attorney General of New Brunswick, Fredericton, New Brunswick, for the intervenor, the Attorney General of New Brunswick;

Attorney General for Saskatchewan, Regina, Saskatchewan, for the intervenor, the Attorney General for Saskatchewan;

Alberta Justice, Edmonton, Alberta, for the intervenor, the Attorney General of Alberta;

Bennett Jones, Calgary, Alberta, for the intervenor, Michael Awad;

Barnes Sammon, Ottawa, Ontario, for the intervenor, the Canadian Conference of Catholic Bishops and the Evangelical Fellowship of Canada.

This appeal was heard on April 24, 2009, before McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. The judgment of the Supreme Court of Canada was delivered in both official languages on December 22, 2010, and the following opinions were filed:

McLachlin, C.J.C. (Binnie, Fish and Charron, JJ., concurring) - see paragraphs 1 to 156;

LeBel and Deschamps, JJ. (Abella and Rothstein, JJ., concurring) - see paragraphs 157 to 281;

Cromwell, J. - see paragraphs 282 to 294.