Reference re Assisted Human Reproduction Act , 2010 SCC 61, Reference re Assisted Human Reproduction Act, 2010 SCC 61, 2010 SCC 61 (2010)

Docket Number:32750


Citation: Reference re Assisted Human Reproduction Act,

2010 SCC 61

Date: 20101222

Docket: 32750


Attorney General of Canada

Appellant and

Attorney General of Quebec


- 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


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.

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

Reference re Assisted Human Reproduction Act

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 ss. 44(2) and (3) exceed the legislative authority of the Parliament of Canada under the Constitution Act, 1867.

Sections 40(1), (6) and (7), 41 to 43, 44(1) and (4), 45 to 53, 61 and 68 are constitutional to the extent that they relate to constitutionally valid provisions.

Per McLachlin C.J. and Binnie, Fish and Charron JJ.: The Act is essentially a series of prohibitions, followed by a set of subsidiary provisions for their administration. While the Act will have beneficial effects and while some of its effects may impact on provincial matters, neither its dominant purpose nor its dominant effect is to set up a regime that regulates and promotes the benefits of artificial reproduction. The fact that the Baird Commission may have referred to positive aspects of assisted reproduction technology in its report does not establish that these benefits were the focus of Parliament's efforts. Furthermore, while the Act employs both a penal and regulatory form, Parliament may validly employ regulations as part of a criminal law provided it targets a legitimate criminal law purpose.

Here, the matter of the statutory scheme, viewed as a whole, is a valid exercise of the federal power over criminal law. The dominant purpose and effect of the legislative scheme is to prohibit practices that would undercut moral values, produce public health evils, and threaten the security of donors, donees, and persons conceived by assisted reproduction. While this initiative necessarily touches on provincial jurisdiction over medical research and practice, these fields are the subject of overlapping federal and provincial jurisdiction. Parliament has a strong interest in ensuring that basic moral standards govern the creation and destruction of life, as well as their impact on persons like donors and mothers. The Act seeks to avert serious damage to the fabric of our society by prohibiting practices that tend to devalue human life and degrade participants. Overlapping with the morality concerns are concerns for public health and security which may be properly targeted by criminal law. These are valid criminal law purposes.

The prohibitions in ss. 8 to 13 come within the scope of the federal criminal law power and are valid criminal law. The provisions are related to ss. 5 to 7, which are conceded to be valid criminal law. Section 8 prohibits the use of reproductive material for the artificial creation of embryos, unless the donor has consented in accordance with the regulations. This relates to the fundamental importance ascribed to human autonomy. Section 9 prohibits persons from obtaining reproductive material from underage donors, except for the purpose of preserving the sperm or ovum or for the purpose of creating a human being that the person reasonably believes will be raised by the donor. This provision seeks to protect vulnerable youth from exploitation and undue pressure. It is an absolute prohibition like ss. 5 to 7, without any accompanying regulations.

Sections 10 and 11 buttress the prohibitions in s. 5. In essence, s. 10 prohibits dealing with human reproductive material without a licence. It targets health risks and moral concerns related to the artificial creation of human life. Section 11 prohibits transgenic engineering unless permitted by the regulations and performed by a licence-holder. By using a selective prohibition to broaden the absolute prohibitions in s. 5 on the creation of chimeras and hybrid entities, s. 11 recognizes that mixing human and non-human genetic material can raise moral concerns long before such experiments result in the creation of a new life form. Working together, licensing and regulation provide for enforceable, tailored prohibitions, which leave the provinces free to regulate the beneficial aspects of genetic manipulation.

Section 12 prohibits reimbursement of donors and surrogate mothers except in accordance with the regulations and with a licence. This provision is rooted in the same concerns as ss. 6 and 7, which prohibit the commercialization of reproduction. Section 13 is an absolute prohibition on the performance of licensed activities in unlicensed premises, backed by a penalty. The artificial creation of human life in clandestine facilities would pose serious health risks to those involved. Ensuring that the facilities of assisted human reproduction are properly supervised also relates to Parliament's moral concerns.

Together with ss. 5 to 7, ss. 8 to 13 form a valid prohibition regime that is consistent with the objectives of the Act as a whole. These provisions contain prohibitions, backed by penalties, and are directed in pith and substance to valid criminal law goals. Although some of the prohibitions impact on the regulation of medical research and practice, the impact is incidental to the legislation's dominant criminal 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...

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