The Chief Justice —
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.
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.
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.
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.
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”).
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 .
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.
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.
The Attorney General of Canada now appeals to this Court.
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
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).
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).
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), and the power of the Governor in Council to exempt the operation of certain provisions if there are equivalent provincial laws in force that cover the field (s. 68).
Only the validity of certain sections of the Act is at issue in this appeal. With the exception of the regulations under s. 8, no regulations have yet been promulgated.
III. The Issues
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
Since the Attorney General of Quebec is challenging individual provisions of the federal scheme, this Court must examine the whole scheme and the impugned provisions separately (General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641, at p. 666). Ordinarily, this Court would begin by examining the impugned provisions in order to determine if and to what extent they intrude on the provincial sphere of competence: see Kirkbi AG v. Ritvik Holdings Inc., 2005 SCC 65, [2005] 3 S.C.R. 302, at para. 21; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [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 at all, “then the investigation need go no further” (General Motors, at p. 667). While courts may nonetheless examine the whole scheme in such 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.
However, in the case at bar it is necessary to examine the whole scheme first before we can make sense of the challenged 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, the Attorney General of Quebec is challenging the bulk of the Assisted Human Reproduction Act . While it concedes that ss. 5 to 7 of the Act are valid, it challenges almost all the remaining operative provisions. Under these circumstances, it is impossible to meaningfully consider the provisions at issue without first considering the nature of the whole scheme.
Therefore, the first question is whether the matter of the statutory scheme, viewed as a whole, is a valid exercise of federal power. The second question is whether its individual provisions are also valid. If the scheme as a whole is valid, but some of its provisions invalid, the invalid provisions are severed, leaving the remaining provisions intact. As Dickson J. (as he then was) explained in Attorney General of Canada v. Canadian National Transportation, Ltd., [1983] 2 S.C.R. 206, at p. 270, “[i]t is obvious at the outset that a constitutionally invalid provision will not be saved by being put into an otherwise valid statute”. Severance may not be possible if bad provisions are so inextricably bound up with good provisions that the legislature would not have enacted one without the other: Attorney-General for Alberta v. Attorney-General for Canada, [1947] A.C. 503 (P.C.), at p. 518.
(1) Characterizing the Legislative Scheme
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, at para. 25. Once the “matter” is thus characterized, the second step is to determine if it falls under a head of power assigned to the enacting body: Kitkatla Band, at para. 52. In this case, the enacting body is federal, and the Attorney General of Canada has decided to limit his arguments 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 . If the scheme, properly characterized, falls within that power, it is valid, subject to a closer look at particular provisions. If not, it is invalid. See Reference re Anti-Inflation Act, [1976] 2 S.C.R. 373, at p. 450; Kitkatla Band.
The parties disagree on the proper characterization of the Assisted Human Reproduction Act . The Attorney General of 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 Attorney General of Quebec, focussing mainly on the effects of the Act, says that its dominant characteristic is the regulation of reproductive medicine and research. These different characterizations of the scheme lead to different results at the second step. The Attorney General of Canada says the law is valid federal legislation under the criminal law power, while the Attorney General of Quebec says it is an illegal scheme to regulate health concerns that fall under provincial powers.
The issue is as follows: Is the Assisted Human Reproduction Act properly characterized as legislation to curtail practices that may contravene morality, create public health evils or put the security of individuals at risk, as the Attorney General of Canada contends? Or should it be characterized as legislation to promote positive medical practices associated with assisted reproduction, as the Attorney General of Quebec contends? In pith and substance, what is this legislation about? Controlling and curtailing the negative impacts associated with artificial human reproduction? Or establishing salutary rules to govern the practice of medicine and research in this emerging field?
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 assisted reproduction. The dominant effect of the prohibitory and administrative provisions is to create a regime that will prevent or punish practices that may offend moral values, give rise to serious public health problems, and threaten the security of donors, donees, and persons not yet born.
In sum, while the Act will have beneficial effects — one hopes all criminal laws 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 to regulate and promote the benefits of artificial reproduction in hospitals and laboratories.
I conclude that the pith and substance of the Act is properly characterized as the prohibition of negative practices associated with assisted reproduction.
(2) Does the Matter of the Act Come Within Section 91(27)?
Having characterized the matter to which the Act relates, the next question is whether it comes within the scope of the federal criminal law power under s. 91(27) of the Constitution Act, 1867 . In order to answer this question, we must consider whether the matter satisfies the three requirements of valid criminal law: (1) a prohibition; (2) backed by a penalty; (3) with a criminal law purpose: Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783 (“Firearms Reference”), at para. 27.
As already discussed, the Act, properly characterized, imposes prohibitions backed by penalties, thereby fulfilling the first two requirements of a valid criminal law. Admittedly, some of the provisions permit exceptions. However, the criminal law does not require absolute prohibitions: R. v. Morgentaler, [1993] 3 S.C.R. 463; R. v. Furtney, [1991] 3 S.C.R. 89; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199. To be sure, a large portion of the scheme is regulatory. However, it is open to Parliament to create regulatory schemes under the criminal law power, provided they further the law’s criminal law purpose. The complexity of modern problems often requires a nuanced scheme consisting 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, [1997] 3 S.C.R. 213. To take but one example, the list of toxic substances capable of harming the populace is ever-changing. It is unrealistic to expect Parliament to enact new laws every time a change occurs, and the criminal law power does not require it to do so. The same logic applies to the present case.
My colleagues LeBel and Deschamps JJ. take issue with the provisions of the Act that prohibit activities unless conducted in accordance with federal regulations. As noted above, they argue that these provisions are designed to promote beneficial practices, while I view them as carve-outs from prohibition. They further argue that since the doctrine of paramountcy allows federal legislation to prevail over provincial legislation in the case of conflicts, finding the regulatory provisions intra vires would effectively oust provincial power over health.
In my view, the requirement that a criminal law contain a prohibition prevents Parliament from undermining the provincial competence in health. The federal criminal law power may only be used to prohibit conduct, and may not be employed to promote beneficial medical practices. Federal laws (such as the one in this case) may involve large carve-outs for practices that Parliament does not wish to prohibit. However, the use of a carve-out only means that a particular practice is not prohibited, not that the practice is positively allowed by the federal law. This has important implications for the doctrine of federal paramountcy. If a province enacted stricter regulations than the federal government, there would be no conflict in operation between the two sets of provisions since it would be possible to comply with both. Further, there would be no frustrations of the federal legislative purpose since federal criminal laws 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), [1989] 1 S.C.R. 927, at pp. 964-65; and Ross v. Registrar of Motor Vehicles, [1975] 1 S.C.R. 5. There may be a conflict between a criminal law and a less strict provincial scheme. However, in such a case, Parliament’s stricter scheme would be acting as a prohibition. In this way, the prohibition requirement for criminal laws acts as a major limitation on the effect of s. 91(27).
(3) Does the Act Serve a Valid Criminal Law Purpose?
Having determined that the Act imposes prohibitions backed by penalties, it remains to be determined whether it does so in the service of a criminal law objective. The Attorney General of Canada asserts that the Act serves broad criminal law purposes centred around morality, health, and security. The Attorney General of Quebec suggests that the real purpose of the law is not criminal, but regulatory — namely, to establish a system to regulate assisted reproduction. In turn, it contends that such a scheme is provincial turf.
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, and The Combines and Fair Prices Act, 1919, [1922] 1 A.C. 191 (P.C.), at pp. 198-99), to the opposite extreme of any “act prohibited with penal consequences” (Proprietary Articles Trade Association v. Attorney-General for Canada, [1931] A.C. 310 (P.C.), at p. 324).
The modern conception of a valid criminal law objective is grounded in the Reference re Validity of Section 5(a) of the Dairy Industry Act, [1949] S.C.R. 1 (the “Margarine Reference”), where Rand J. decided that a criminal prohibition must serve “a public purpose” like “[p]ublic peace, order, security, health, morality” (p. 50), stopping short of pure economic regulation. It has been held that highway regulation bearing no relation to public safety falls beyond the scope of the federal criminal law power: Boggs v. The Queen, [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, at paras. 32-33), as have prohibitions directed at protecting the public from environmental hazards (Hydro-Québec), dangerous and adulterated food and drug products (R. v. Wetmore, [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).
The Attorney General of Canada relies on these cases to argue that prohibiting the detrimental aspects of assisted reproduction constitutes a valid criminal law purpose under the objectives of morality, health, and security, including the protection of vulnerable groups. The Attorney General of Quebec criticizes this approach, arguing that it represents a virtually unlimited extension of the criminal law power, which would threaten the constitutional division of powers between the federal and provincial governments.
There is merit in both positions. On the one hand, the jurisprudence properly recognizes that confining the criminal law power to precise categories is impossible. The criminal law must be able to respond to new and emerging matters of public concern that go to the health and security of Canadians and the fundamental values that underpin Canadian society. A crabbed, categorical approach to valid criminal law purposes is thus inappropriate. On the other hand, a limitless definition, combined with the doctrine of paramountcy, has the potential to upset the constitutional balance of federal-provincial powers. Both extremes must be rejected. To constitute 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 should be rejected.
Whether a federal law falls within Parliament’s criminal law power under s. 91(27) of the Constitution Act, 1867 , is a question of which level of government has jurisdiction to enact this law. This question relates to the powers of one level of government vis-à-vis the other, and it is resolved by determining the law’s pith and substance. The degree to which the Act may impact on individual liberties is not relevant to this inquiry. The Attorney General of Quebec has not challenged the Assisted Human Reproduction Act on the basis that it constitutes an unjustified infringement of individual liberty. That would raise the question of whether any level of government could enact this law, an issue which turns on the state’s authority vis-à-vis the individual: see R. v. Butler, [1992] 1 S.C.R. 452, and Malmo-Levine. Rather, the Attorney General of Quebec challenges the Act on the basis that it wrests turf from the provinces.
It follows that this case does not require us to balance the impact of the Act on liberty against the importance of Parliament’s legislative objective. The only question is whether the Act comes within the scope of s. 91(27). In this respect, I differ from my colleagues LeBel and Deschamps JJ., who argue that there is insufficient societal consensus to justify the restrictions that the Act imposes on individual liberties. With respect, the language of justification has no place in the pith and substance analysis.
Criminal law objectives, such as peace, order, security, morality, and health do not occupy separate watertight compartments. The question in each case is whether the matter of the legislation at issue relates to one or more of the recognized criminal law purposes, or a similar objective. Criminal laws will often engage more than one objective, and the objectives may overlap with each other.
In this case, the Attorney General of Canada relies mainly on the objectives of upholding morality and avoiding or containing potential public health evils. Mingled with these are overtones of security insofar as the practices may harm participants and offspring. 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 law purpose. The question is simply whether the legislative scheme falls within the ambit of the objectives that the Attorney General of Canada has identified.
I turn now to consider the scope of the criminal law purposes that Parliament has identified. I conclude that upholding morality is the principal criminal law object of the Act. What is at stake is not merely two competing health schemes, but Parliament’s power to enact general norms for the whole of Canada to meet the pressing moral concerns raised by the techniques of assisted reproduction. The objects of prohibiting public health evils and promoting security play supporting roles with respect to some provisions. 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
Morality has long been recognized as a proper basis for the exercise of the criminal law power. In one of the first cases to consider the ambit of s. 91(27), Sir Montague E. Smith wrote that the criminal law power includes laws “designed for the promotion of public order, safety, or morals”: Russell v. The Queen (1882), 7 App. Cas. 829 (P.C.), at p. 839. Similarly, in the Margarine Reference, Rand J. included morality in his famous definition of valid criminal law purposes.
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 to society. Different people hold different views about issues such as the artificial creation of human life. However, under federalism analysis, 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, even if hard evidence is unavailable on some points because “the jury is still out”: Malmo-Levine, at para. 78. Whether the law violates the Canadian Charter of Rights and Freedoms guarantees of individual liberty is another issue.
In summary, morality constitutes a valid criminal law purpose. The role of the courts is to ensure that such a criminal law in pith and substance relates to conduct that Parliament views as contrary to our central moral precepts, and that there is a consensus in society that the regulated activity engages a moral concern of fundamental importance.
(b) Health
Health is a jurisdiction shared by both the provinces and the federal government. In order to preserve the balance of powers, Parliament’s ability to pass criminal laws on the basis of health must be circumscribed. To this end, criminal laws for the protection of health must address a “legitimate public health evil”: RJR-MacDonald, at para. 32; see also Schneider v. The Queen, [1982] 2 S.C.R. 112, at p. 142.
It has proven difficult to articulate a precise definition of a legitimate public health evil. It has been held that the federal criminal law power encompasses the regulation or prohibition of threats as diverse as tobacco (RJR-MacDonald); dangerous and adulterated food and drug products (Wetmore); illicit drugs (Malmo-Levine); gun control (Firearms Reference); and environmental degradation (Hydro-Québec).
Behind the diversity in the cases that have upheld criminal laws on the basis of public health evils lie three constant features. 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.
Human conduct causing harm is the fundamental stuff of the criminal law. The element of harmful human conduct transforms a public health problem, like cancer, into a public health evil, like tobacco. The criminalization of public health evils recognizes that criminal liability is not confined to crimes like murder and fraud, where human conduct is coupled with injury to a specific person. Parliament is entitled to target conduct that elevates the risk of harm to individuals, even if it does not always crystallize in injury. For example, Parliament may criminalize dangerous driving, despite the fact that it creates only a risk of injury, not a certainty. Where human conduct may cause injurious or undesirable effects on the health of members of society, Parliament may prohibit it as a public health evil.
No constitutional threshold level of harm, as such, constrains Parliament’s ability to target conduct causing these evils. It is not apparent that the criminal law may only regulate the severest risks to individual’s health and safety, and not also prohibit less 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 may regulate a risk to health: “. . . the criminal law power may validly be used to safeguard the public from any injurious or undesirable effect. The scope of the federal power to create criminal legislation with respect to health matters is broad, and is circumscribed only by the requirements that the legislation must contain a prohibition accompanied by a penal sanction and must be directed at a legitimate public health evil” (para. 32 (emphasis added; internal quotation marks omitted)). This said, the need to establish a reasonable apprehension of harm means that conduct with little or no threat of harm is unlikely to qualify as a “public health evil”: Malmo-Levine, at para. 212, per Arbour J., dissenting, but not on this point.
My colleagues LeBel and Deschamps JJ. argue that there is little to distinguish assisted reproduction from any other emerging field of medical practice. All medical practices come with risks. This, they argue, does not bring those practices within the federal criminal law power. The answer to this argument, confirmed by the cases, is that, provided it is not a colourable intrusion upon provincial jurisdiction (i.e. one not supported by a valid criminal law purpose), Parliament is entitled to use the criminal law power to safeguard 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 provincial jurisdiction, and the provinces’ power to legislate in this field does not exclude Parliament’s authority to target conduct that constitutes a public health evil: RJR-MacDonald, at para. 32.
(c) Security
Security is relied on only peripherally in this case. Yet the Attorney General of Canada raises morality and health concerns that have significant implications for personal security. It is beyond dispute that one of the most fundamental purposes of criminal law — indeed its most fundamental purpose — is the protection of personal security. To preserve human life and security is the state’s most fundamental concern. Traditionally, the criminal law has played a central role in the pursuit of this objective. This extends to life before birth; control over the termination of pregnancy has long been recognized as a valid criminal law subject: see Morgentaler v. The Queen, [1976] 1 S.C.R. 616. It is beyond the scope of the present appeal to decide whether such laws infringe individual liberties in a manner that is unconstitutional. In the context of the federalism analysis, it suffices that the protection of vulnerable groups has been recognized as a valid criminal law purpose.
(d) Is the Legislative Scheme Grounded in a Valid Criminal Law Purpose?
(d) Is the Legislative Scheme Grounded in a Valid Criminal Law Purpose?
As discussed earlier, the purposes of the criminal law overlap. Morality, public health evils and security may focus on the same concerns. In exercising its criminal law power, Parliament is not confined to a single purpose or a given combination of purposes. What is required is that the legislation, properly characterized and considered in light of the various objectives advanced, serves legitimate criminal law purposes.
For the reasons that follow, I conclude that the Assisted Human Reproduction Act , viewed as a whole, is grounded in valid criminal law purposes.
Assisted reproduction raises weighty moral concerns. The creation of human life and the processes by which it is altered and extinguished, as well as the impact this may have on affected parties, lie at the heart of morality. 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. Taken as a whole, 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. This is a valid criminal law purpose, grounded in issues that our society considers to be of fundamental importance.
Overlapping with the morality concerns are concerns for public health. As discussed above, acts or conduct that have an injurious or undesirable effect on public health constitute public health evils that may properly be targeted by the criminal law. The question is whether the threats to donors of sperm or ova, surrogate mothers and persons created through misuse of the techniques of assisted reproduction, fall within this principle. In my view, they do. It is not difficult to project serious physical and psychological harms to the affected individuals. How assisted reproduction techniques are used can mean the difference between life and death, health and sickness. Conduct that abuses these processes poses risks to the health of the population and may legitimately be considered a public health evil to be addressed by the criminal law.
Overlapping with the concerns of upholding morality and addressing public health evils is a final concern — security. The Attorney General of Canada argues that reproductive techniques, improperly used, threaten the security of those involved in the processes and those born as a result of their application. While the record does not detail these concerns, again they are easy to envision.
I conclude that the legislative scheme is not directed toward the promotion of positive health measures, but rather addresses legitimate criminal law objects. As discussed above, the other two elements of criminal law, prohibition and penalty, are established on the face of the Act. I therefore conclude that the Assisted Human Reproduction Act , viewed as a whole, is valid criminal legislation.
It may be appropriate at this point to address the arguments relied on by LeBel and Deschamps JJ. in support of their view that the criminal law must be circumscribed to prevent trenching on provincial powers to regulate health.
My colleagues argue that the law generally regulates “a specific type of health services provided in health‑care institutions by health‑care professionals” (para. 227). They characterize the Province’s power under s. 92(16) (“Generally all Matters of a merely local or private Nature in the Province”) as a residual power. They go on to paint a picture of provincial health law being in conflict with the federal criminal law power, and conclude that the federal criminal power must be circumscribed to accommodate the Quebec regulatory scheme.
My colleagues’ conclusion takes them into untravelled constitutional territory. “Double occupancy” of a field of endeavour, such as health, is a permanent feature of the Canadian constitutional order. It leads to a standard “double aspect” analysis under which both aspects subsist side by side, except in case of conflict, when the federal power prevails: Rothmans, Benson & Hedges Inc. v. Saskatchewan, at para. 11. 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. For example, most provinces have drug and pharmaceutical laws, but these do not preclude federal criminal legislation to control narcotics.
The Constitution Act, 1867 , allocates to Parliament jurisdiction over the criminal law precisely to permit Parliament to create uniform norms. Circumscription of the ambit of the criminal law to avoid trenching on provincial regulation runs counter to this purpose. Criminal norms of necessity often touch on matters that are regulated by the provinces. This must be so, in the interest of uniform criminal law norms throughout Canada.
In support of their contention that the criminal law must be circumscribed to preserve space for provincial regulation, my colleagues repeatedly refer to the principle of subsidiarity (e.g., para. 273). The idea behind this principle is that power is best exercised by the government closest to the matter. Since the provincial governments are closest to health care, the argument goes, they should exercise power in this area, free from interference of the criminal law. Subsidiarity therefore favours provincial jurisdiction.
Despite its initial appeal, this argument misconstrues the principle of subsidiarity. As L’Heureux-Dubé J. explained in 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), 2001 SCC 40, [2001] 2 S.C.R. 241, at para. 3, in an area of jurisdictional overlap, the level of government that is closest to the matter will often introduce complementary legislation to accommodate local circumstances. In Spraytech, for example, the town supplemented federal pesticide controls by further restricting the use of certain substances. L’Heureux-Dubé J. decided that the town could adopt higher standards for pesticide control because the local law complemented, rather than frustrated the federal legislation. She took this as an example of subsidiarity. Moreover, as developed above, a carve-out to a criminal law would not be paramount to stricter provincial regulations.
Additionally, the federal-provincial equivalency provision found at s. 68 of the Act answers the argument that Quebec already regulates the subject matter of the Act, and is better placed to do so: if this is the case, an arrangement between the federal government and Quebec may occur, in which case the Quebec law would be enforced by officials of the Quebec government.
More fundamentally, subsidiarity does not override the division of powers in the Constitution Act, 1867 . L’Heureux-Dubé J. cautioned that “there is a fine line between laws that legitimately complement each other and those that invade another government’s protected legislative sphere” (Spraytech, at para. 4), and she noted that subsidiarity allows only the former. Subsidiarity might permit the provinces to introduce legislation that complements the Assisted Human Reproduction Act , but it does not preclude Parliament from legislating on the shared subject of health. The criminal law power may be invoked where there is a legitimate public health evil, and the exercise of this power is not restricted by concerns of subsidiarity.
Nor can I accept my colleagues’ argument that recognition of the Act as valid criminal law will place us on a slippery slope leading to federal dominion over a vast array of risky medical practices. My colleagues write 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. [para. 256]
It is not the degree of risk that brings a medical procedure within s. 91(27), but a genuine criminal law purpose, whether grounded in morality, a public health evil, or security. “Playing God” with genetic manipulation engages moral concerns that my colleagues’ example of risky cardiac bypass surgery does not. Different medical experiments and treatments will raise different issues. Few will raise “moral” issues of an order approaching those inherent in reproductive technologies. The federal criminal law at issue in this case does not threaten “the constitutional balance”.
Nor can I accept my colleagues’ suggestion that the beneficial aspects of assisted reproduction oust the possibility of a valid criminal law purpose. At several points in their reasons my colleagues draw attention to the desirable aspects of assisted reproduction. The suggestion seems to be that something so good cannot be the subject matter of criminal law:
. . . the evidence also shows that the same authorities recognized that some assisted reproductive technologies are beneficial to society and should accordingly be supported, although they also need to be regulated. [para. 211]
Assisted human reproduction was not then, nor is it now, an evil needing to be suppressed. In fact, it is a burgeoning field of medical practice and research that, as Parliament mentions in s. 2 of the [Act], brings benefits to many Canadians. [para. 251]
As I explained earlier, 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.
For the foregoing reasons, 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.
The federalism analysis does not end merely because it has been determined that a law, viewed as a whole, is valid criminal legislation. Even if a law is in pith and substance criminal legislation, it may nevertheless contain provisions which are neither valid criminal prohibitions, nor ancillary to valid criminal prohibitions. An invalid legislative provision is not rendered valid merely because it is included in a legislative scheme that, viewed globally, is valid: General Motors. In each case, the question is whether the provision, considered in the context of the larger scheme of the Act, is valid criminal legislation, in terms of prohibition, penalty and criminal law purpose.
The Attorney General of Quebec accepts that ss. 5 to 7 are valid criminal law, reflecting pressing moral concerns. These sections ban a variety of conduct, including cloning human beings, creating an embryo from genetic material taken from another embryo or a foetus, maintaining an embryo outside the body of a woman more than 14 days after fertilization (ectogenesis), creating a chimera, paying consideration to surrogate mothers, and purchasing sperm or ova.
The challenged prohibitions in ss. 8 to 13 generally engage the same morality, health, and security issues as the prohibitions in ss. 5 to 7, as discussed more fully below. Sections 10 and 11 amplify the scope of the prohibitions in s. 5, and s. 12 addresses the pecuniary issues that arise in ss. 6 and 7. The Attorney General of Quebec’s main challenge to these provisions is based on the form they take. The Attorney General of Quebec places great emphasis on the fact that some of the prohibitions in ss. 8 to 13 are subject to exceptions, and many of them operate against the backdrop of regulations and a licensing scheme, which remain to be fully articulated. The Attorney General of Quebec contends that the “controlled activities” prohibitions in ss. 10 to 13 promulgate a scheme to regulate medicine and research in the area of assisted reproduction. It takes a similar view of the prohibitions in ss. 8 and 9. Consequently, the Attorney General of Quebec argues that none of these provisions are valid criminal law.
As discussed earlier in connection with the legislative scheme viewed as a whole, the cases establish that criminal prohibitions may permit exceptions, and that the exceptions may take the form of a regulatory scheme. Thus, the form of ss. 8 to 13 is itself insufficient to remove these sections from the scope of the federal criminal law power.
The Attorney General of Quebec’s argument appears to be that the extent of the regulation and the unpublished nature of the regulations distinguishes this case from cases like RJR-MacDonald and the Firearms Reference, where regulatory schemes were upheld as valid criminal law.
I turn first to the fact that the regulations have not yet been published. It is difficult to see how the unpublished nature of the regulations could take an otherwise valid criminal regulatory scheme outside the federal criminal law power. The suggestion is that the regulations, when published, will effectively hijack provincial competencies with respect to hospitals and the medical profession.
However, the issue in the present appeal is the validity of the Act, not the regulations. In a case where regulations have been passed, it may be appropriate to scrutinize them to ascertain the true intent of the legislature (see, e.g., Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), 2004 SCC 54, [2004] 3 S.C.R. 152, at para. 35, per Deschamps J.). In the absence of regulations, however, the only question is whether the “controlled activities” provisions are a valid exercise of Parliament’s legislative authority. Any regulations passed under the enabling statute will be valid only insofar as they further valid criminal law goals, and they will be subject to challenge to the extent that they do not.
This brings us to the extent of the regulatory scheme. The first point is that the extent or comprehensiveness of a criminal law regulatory scheme does not affect its constitutionality. Provided a regulatory scheme reflects and furthers proper criminal law goals, it remains securely anchored in the federal criminal law power. Extensive and comprehensive regulatory schemes were found to be valid criminal law in RJR-MacDonald and the Firearms Reference.
The Attorney General of Quebec’s real point appears to be that the regulatory scheme imposed by ss. 8 to 13 is of such magnitude that medical and research regulation becomes the dominant character, or pith and substance, of these provisions, notwithstanding the criminal prohibitions they purport to create.
This argument, to the extent it gains any traction, requires that the prohibitions in ss. 8 to 13 be viewed in isolation from the rest of the Act (and it ignores the fact that s. 9 is truly an absolute prohibition like ss. 5 to 7, without any accompanying regulations). The Attorney General of Quebec sees these prohibitions as a stand-alone regulatory scheme divorced from ss. 5 to 7, which are conceded to be valid criminal laws. I agree with the Attorney General of Quebec that the proper approach is to rigorously scrutinize what each provision says and does. But it must be scrutiny in context, which takes into account the relationship between the absolute and selective prohibitions, as well as the other provisions of the Act.
Viewed in the context of the legislative scheme as a whole, the dominant character of the prohibitions in ss. 5 to 7 is to criminalize conduct that Parliament has found to be fundamentally immoral, a public health evil, a threat to personal security, or some combination of these factors. A detailed examination of ss. 8 to 13 supports the conclusion that, like ss. 5 to 7, these provisions contain a prohibition, backed by a penalty, and are directed in pith and substance to valid criminal law goals. I consider each section in turn.
(1) Section 8
Section 8 prohibits the use of reproductive material for the artificial creation of embryos, unless the donor has consented in accordance with the regulations: Assisted Human Reproduction (Section 8 Consent) Regulations, SOR/2007-137 (June 14, 2007). It is backed by penalties, specified in s. 60 of the Act.
Section 8 is grounded in valid criminal law purposes. As the Baird Report put it, “gamete donors . . . have a unique moral interest in the use of their genetic material” (p. 639). This morality interest stems from the danger that reproductive material may be used against a donor’s will to create a human being, as well as from the possibility that an embryo, donated with the intent of creating a human being, could be used for different purposes, such as research. 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.
(2) Section 9
Section 9 prohibits a person from obtaining sperm or ova from donors under 18 years of age, 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 is an absolute prohibition, and it takes the same form as the prohibitions in ss. 5 to 7, which are conceded to be valid criminal law. Like s. 8, it is backed by penalties set out in s. 60. The only question is whether it is grounded in a valid criminal law purpose.
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 v. The Queen. 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.
(3) Section 10
Section 10 prohibits altering, manipulating, treating, obtaining, storing, transferring, destroying, importing or exporting human reproductive material or in vitro embryos for certain purposes, unless these activities are performed in accordance with the regulations and a licence. The prohibition is backed by penalties set out in s. 61. In essence, s. 10 prohibits dealing with human reproductive material without a licence.
The Attorney General of Quebec’s first objection to s. 10 is that it sets up a scheme supported by yet-to-be-pronounced regulations. It argues that when the regulations are eventually promulgated, they will seize control of areas falling under provincial jurisdiction, namely, hospitals and the medical profession.
The Attorney General of Quebec’s concern is understandable in light of the broad wording of the section. Section 10 of the Act is the most problematic of the impugned provisions. By prohibiting all the listed medical procedures unless they are performed by a licence holder in compliance with regulations, this section allows for federal oversight of research and medical practice. The ultimate impact of the provision will be determined by the future regulations. If the federal government were to implement regulations enacting a complete code of conduct for doctors, and regulating every component of the delivery of fertility services, the regulations would be ultra vires. However, as noted above, a finding that s. 10 is intra vires would not mean that the future regulations promulgated under this section will necessarily be valid as well. Should future regulations go too far, they will be ultra vires. The only question before us now is whether s. 10 itself falls under the criminal law power.
The Attorney General of Quebec’s second objection to s. 10 is that its dominant purpose, or pith and substance, is the regulation of hospitals and medical practice and research, which come within the province’s jurisdiction over health. Against this, the Attorney General of Canada argues that the criminal law purpose underlying s. 10 is “a mix of concerns about health protection, morality and ethics” (Factum, at para. 88), and thus serves valid criminal law purposes. The Attorney General of Canada contends that licensing is the only means of identifying where suspect practices are performed, and by whom. In turn, the regulations introduced under s. 10 provide a flexible means with which to carve out those aspects of genetic manipulation that are unacceptable from the perspective of morality, health, or security. Working together, licensing and regulation provide for enforceable, tailored prohibitions, which leave the provinces free to regulate the beneficial aspects of genetic manipulation.
The Attorney General of Canada identifies a number of health risks that it seeks to target with s. 10. Sperm and ova from infected donors pose grave risks to the health of both the women who receive them and the resulting offspring. Retrieval of ova may cause serious health problems for women, as the process uses drugs that can induce ovarian hyperstimulation syndrome, a potentially dangerous condition. Multiple pregnancies, a common outcome of assisted reproduction, may pose health risks to women (high blood pressure, kidney trouble and difficult delivery) and to resulting offspring (cerebral palsy, poor eyesight and breathing problems). Additionally, the Baird Commission found that alterations to the genetic material of embryos, either for therapeutic reasons or to enhance certain physical characteristics, puts offspring at an elevated risk of developing deformities, functional disturbances, and cancer (Baird Report, at p. 943). Conduct that creates a serious risk of these problems arguably rises to the level of a public health evil, and Parliament is entitled to criminalize it.
The health aspects of s. 10 are buttressed by morality concerns. The Attorney General of Canada argues that the alteration, manipulation and treatment of human reproductive material is a quintessential moral concern capable of grounding criminal law, as attested by the historic treatment of contraception and abortion (see, e.g., Criminal Code, 1892, S.C. 1892, c. 29, ss. 179, 271 and 272; Criminal Code, R.S.C. 1906, c. 146, and Criminal Code , R.S.C. 1927, c. 36, ss. 207, 303 and 306; Criminal Code, S.C. 1953-54, c. 51, ss. 150 and 237). Social mores have changed over time on these issues, but that is not the point. The point is simply that s. 10 touches on important moral concerns that have long been held to fall within the s. 91(27) criminal law power. These concerns have not disappeared. If anything, the new reproductive technologies have complicated and magnified them, underscoring the moral concern that Parliament apprehended.
Conception no longer occurs by necessity within a woman’s body, but may, through in vitro fertilization technologies, take place outside of it. Life, traditionally “created” by sexual reproduction, may now be created by the asexual replication technique of cloning. The genetic make-up of offspring, once determined by the natural process of DNA recombination, may now be artificially altered through genetic manipulation and germ cell line intervention. And the sex of a child may be determined at early stages of development, creating attendant moral concerns (see, e.g., M. Somerville, “Reprogenetics: Unprecedented Challenges to Respect for Human Life” (2005), 38 Law/Tech. J. 1).
These developments raise the prospect of novel harms to society, as the Baird Report amply documents. The “commodification of women and children” (p. 718); sex-selective abortions (p. 896); cross-species hybrids; ectogenesis with the potential to “dehumanize motherhood”; “baby farms” (p. 637); saviour siblings (a child whose primary purpose is to cure another child suffering from a genetic disorder); devaluation of persons with disabilities; discrimination based on ethnicity or genetic status (p. 28); and exploitation of the vulnerable — these are but some of the moral concerns raised in the Report. While the ethical acceptability of these techniques is, of course, debatable (see, e.g., S. Sheldon and S. Wilkinson, “Should selecting saviour siblings be banned?” (2004), 30 J. Med. Ethics 533), it cannot be seriously questioned that Parliament is able to prohibit or regulate them.
Had Parliament wished to prohibit absolutely the practices targeted in s. 10 — the altering, manipulation and treatment of human reproductive material — it could have done so (see, e.g., Report of the Departmental Committee on Human Artificial Insemination (1960), in which the Scottish Home Department concluded against criminalization, but only for practical reasons: paras. 259-63). The imposition of a selective, rather than an absolute prohibition reflects the fact that some uses of human reproductive material may be beneficial. Acting under s. 10, the executive may prohibit reprehensible conduct, while leaving the positive aspects of assisted reproduction untouched. This does not mean that s. 10 of the Act may be characterized as a law in relation to these exceptions. Rather, the main thrust of s. 10 is to separate the moral and beneficial from the immoral and harmful, and to prohibit the latter.
Section 10 must also be read in light of s. 68 of the Act, which lifts the application of the federal law in any province “if the Minister and the government of that province agree in writing that there are law [sic] of the province in force that are equivalent to those sections and the corresponding provisions of the regulations”. This provision suggests that Parliament’s object when enacting s. 10 was to establish “minimum federal safety and ethical standards” for fertility services, while leaving the provinces in charge of regulating and monitoring the medical profession (Expert Report by F. Baylis (August 2006), A.R., at p. 7000). Parliament has adopted a form of legislation akin to the Canadian Environmental Protection Act, R.S.C. 1985, c. 16 (4th Supp.), upheld in Hydro-Québec: it established the licensing and regulation scheme itself, but also established an arrangement whereby similar or identical provincial regulations could govern (s. 68 of the Assisted Human Reproduction Act and s. 34(6) of the Canadian Environmental Protection Act). As stated by La Forest J. when reviewing the Canadian Environmental Protection Act in Hydro-Québec, “in enacting the legislation in issue here, Parliament was alive to the need for cooperation and coordination between the federal and provincial authorities. . . . In particular, . . . Parliament has made it clear that the provisions of this Part are not to apply where a matter is otherwise regulated under other equivalent federal or provincial legislation” (para. 153).
The Attorney General of Quebec submits that, rather than establishing the regulations itself and allowing equivalent provincial rules to govern, Parliament should have prohibited all fertility treatments [translation] “unless they were regulated properly, and specifically, by the provinces” (transcript, at p. 39). The Attorney General of Quebec approves of the approach used in the criminal regulation of lotteries, which prohibits lotteries unless they are conducted in accordance with provincial regulations (s. 207(1) (a) of the Criminal Code , R.S.C. 1985, c. C-46 ; Furtney; Siemens v. Manitoba (Attorney General), 2003 SCC 3, [2003] 1 S.C.R. 6, at para. 35). Parliament establishes certain requirements for these provincial lottery schemes, but does not enforce the regulations itself. As noted by the Attorney General of Quebec, adopting this form of legislation in the Assisted Human Reproduction Act would result in a prohibition of fertility services in the provinces that have not enacted the minimum standards required by Parliament. It would also result in temporary prohibitions every time the federal government identifies a new concern requiring new regulations.
I cannot accept that if Parliament wishes to prevent the problematic outcomes of otherwise beneficial medical treatments, it must prohibit the treatment until the provinces are able to act. Parliament came to the conclusion that it would be inappropriate to prohibit all fertility treatments in a province that had not yet adopted sufficient oversight. It was willing to do so in the case of gambling, but in the context of medical treatments, such an absolute ban would have imposed major hardships on individuals. Further, the form of legislation adopted in this case reflects the fact that assisted reproduction is a developing field, and that Parliament may need to enact further regulations to meet newly discovered criminal concerns. This is not the case for gambling. By regulating fertility services itself, in conjunction with s. 68, Parliament allows the enjoyment of the beneficial aspects of fertility treatments in the interim between the promulgation of new federal regulations and the adoption of similar rules by the provinces. Section 68 is only relevant to my analysis because it confirms that Parliament had a valid criminal law purpose for enacting s. 10. Equivalency provisions would not save federal laws that are ultra vires.
I conclude that s. 10 is valid criminal legislation.
(4) Section 11
Section 11 prohibits a person from combining the human genome with the genomes of other species — transgenic engineering — unless permitted by regulations and licence. Like s. 10, it is a prohibition backed by penalties, set out in s. 61.
Again, the question is whether the prohibition is grounded in a valid criminal law purpose. The Attorney General of Canada argues 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” (Factum, at para. 73). 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” (ibid.). Transgenic science has been associated with other harmful techniques of assisted reproduction, such as human cloning and the commodification of reproductive materials (see, e.g., A. Campbell, “Defining a Policy Rationale for the Criminal Regulation of Reproductive Technologies” (2002), 11 Health L. Rev. 26). These risks support the use of the criminal law to control transgenic research.
In essence, s. 11 uses a selective prohibition to broaden the absolute prohibitions in s. 5(1)(h), (i) and (j) on the creation of chimeras and hybrid entities. Section 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. The Attorney General of Quebec accepts that Parliament has a valid moral interest in banning the harms caught by s. 5(1)(h), (i) and (j). It is difficult to argue that s. 11’s broader focus on transgenic manipulation does not invoke the same moral concerns.
I conclude that s. 11 is valid criminal law.
(5) Section 12
Section 12 prohibits 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 prohibits reimbursement for expenditures without receipts, and the reimbursement of surrogate mothers for the loss of work-related income without medical certification that work may pose a risk to her health or that of the embryo. The prohibitions in s. 12 are backed by the penalties in s. 61.
The question is whether s. 12 has a criminal law purpose. Section 12 is complementary to ss. 6 and 7, which are conceded to be valid criminal law. Sections 6 and 7 prohibit the commercialization of reproduction. These prohibitions are based on the Baird Report, which stated: “To allow commercial exchanges of this type [buying and selling embryos, use of financial incentives, etc.] would undermine respect for human life and dignity and lead to the commodification of women and children” (p. 718). Section 12 addresses the related issue of permitted expenses. It seeks to ensure that credited expenses are confined to actual outlays, and do not cross the line into commercialized reproductive activities. This is the line that prohibits that which is considered inappropriate commodification, and permits that which is considered acceptable reimbursement. The act of drawing this line raises fundamental moral questions. Though there are differing views on where the line should be drawn, it is difficult to argue that the criminal law power does not permit Parliament to prohibit that which falls on the wrong side of it.
(6) Section 13
Section 13 is an absolute prohibition on the performance of licensed activities in unlicensed premises, backed by a penalty set out in s. 61. The only issue is whether it is grounded in a valid criminal law purpose.
The purpose of s. 13 is to confine activities relating to the artificial production of human life to places which have been licensed to perform such activities. It imposes controls not on what is done, but on where it is done. The mechanism used is licensing, on the basis of yet-to-be-adopted regulations.
On one hand, the Attorney General of Quebec argues that it is for the provinces, not the federal government, to regulate the facilities in which medical procedures are performed. In its view, the establishment of standards for assisted reproduction facilities comes within provincial jurisdiction.
On the other hand, the Attorney General of Canada contends that it is essential to restrict the places in which the practice of assisted reproduction takes place. The Attorney General of Canada explains that s. 13 is aimed at preventing the artificial creation of human life in clandestine laboratories, on shoddy operating tables, and in shuttered basements, where human reproductive material might be imperilled, unhampered by regulatory supervision. It prohibits this and imposes a penalty.
The location where assisted reproduction takes place is important. The facilities must be equipped and staffed to properly care for donors, donees, and delicate life forms produced by artificial means. The suitability of assisted reproduction facilities is vital to avoiding harms related to morality and health. In turn, these facilities must be identified so that they can be subject to inspection and control. As with ss. 10 to 12, licensing provides the only practical means of enacting a prohibition on substandard facilities.
The production of human life in clandestine facilities may well constitute a public health evil. The conduct involved can pose serious health risks to those involved. Inadequate equipment, unsterilized facilities, unqualified staff, inappropriate emergency protocols — all of these factors and more may pose grave risks to the health of donors, mothers, and the future human beings who are the object of the exercise.
These health-related objectives overlap with the moral concern of ensuring that assisted reproduction facilities are subject to supervision. The Baird Report concluded that human reproductive material attracts special moral concerns. These concerns come to the fore in the creation and preservation of life by artificial means. Parliament is entitled to prohibit the performance of assisted reproduction procedures in secret, lest human reproductive material be manipulated and put to purposes that are considered immoral. Parliament is also entitled to prohibit the performance of assisted reproduction procedures in facilities that are unable to appropriately support human life. For example, it would cheapen human life to permit artificially created newborns to die simply because a facility was not equipped to meet their special needs. These prohibitions speak to our fundamental notions of humanity. Consequently, the morality interest validates the use of criminal sanctions to prevent assisted reproduction from being practised in unsuitable venues. In turn, this objective is actualized by way of licensing.
The prohibition on unlicensed facilities does not oust the ability of the provinces to designate the facilities in which assisted reproduction procedures are performed. Section 13 does not confine these activities to any specific facilities. The hospitals and research centres where these procedures take place will be subject to concurrent provincial licensing. Section 13 does not displace this provincial oversight, but merely requires a supplementary federal licence certifying that assisted reproduction processes can be carried out in the laboratory or hospital in question. Further, if the province and the federal government reach an equivalency agreement under s. 68, the province alone would issue and enforce licences under s. 13. This prohibition does not seek to usurp the provinces’ role in regulating hospitals and research centres, but rather to prevent specific practices from being carried out in unsuitable facilities.
I conclude that s. 13 addresses serious harms both to society and the individuals involved in assisted reproduction procedures. It is valid criminal law.
(7) Summary
I conclude that, in pith and substance, the prohibitions in ss. 8 to 13 come within the scope of the federal criminal law power and are valid criminal law. Together with ss. 5 to 7, these provisions form a valid prohibition regime that is consistent with the general pith and substance of the Assisted Human Reproduction Act as a whole.
I turn now to the validity of the administration and enforcement provisions in the remainder of the Act.
The criminal prohibitions in ss. 5 to 13 are followed by a number of sections that provide for their administration and enforcement. Sections 14 to 19 set up a system of information management. Sections 20 to 39 of the Act establish the Assisted Human Reproduction Agency of Canada. 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. Finally, ss. 60 and 61 provide for penalties, ss. 65 to 67 authorize the promulgation of regulations, and s. 68 addresses the equivalency agreements with the provinces.
In pith and substance, many of these provisions do not come within Parliament’s criminal law power. However, the Attorney General of Canada argues that these provisions (the “ancillary provisions”) support the criminal law prohibitions in ss. 5 to 13 of the Act and are valid under the doctrine of ancillary powers (also known as the ancillary doctrine: see Global Securities Corp. v. British Columbia (Securities Commission), 2000 SCC 21, [2000] 1 S.C.R. 494, at para. 45).
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: General Motors, at pp. 667-70; Reference re Goods and Services Tax, [1992] 2 S.C.R. 445, at pp. 469-70; Kirkbi AG v. Ritvik Holdings Inc. 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. Though this test has been criticized as too dependent on a subjective classification of the severity of the intrusion (see Hogg, at p. 15-43), for the purposes of this decision it need not be revisited.
In General Motors, Dickson C.J. noted a number of factors that would determine the severity of an extrajurisdictional incursion. These factors may be summarized as follows.
The first factor concerns the scope of the heads of power in play — whether they are broad or narrow. Dickson C.J. focussed on the head of power that validates the scheme in which the impugned provision appears. Broad heads of power lend themselves to jurisdictional overlap, and are “therefore less likely to give rise to highly intrusive provisions” (General Motors, at p. 671). This stands in contrast to narrow heads of power, which are “quite susceptible to having provisions ‘tacked-on’ to legislation which is validated under them” (ibid.). Dickson C.J. thus concluded that the intrusion on the powers of the other level of government will usually be less serious where the impugned provision appears in a legislative scheme that is validated under a broad head of power. This logic suggests that it is also important to consider the head of power that the impugned provision is said to infringe. If it intrudes upon a broad head of power, the intrusion will generally be less serious because it does not overwhelm the jurisdiction of the other level of government. Conversely, an intrusion on a narrow legislative competency will be more serious because it threatens to obliterate that head of power.
The second factor concerns the nature of the impugned provision. In General Motors, Dickson C.J. considered the intrusion on provincial powers less serious because the nature of the impugned provision in that case was remedial. The provision was designed “to help enforce the substantive aspects of the Act, but it [was] not in itself a substantive part of the Act” (p. 673). Dickson C.J. also noted that the incursion on the jurisdiction of the other level of government would be less serious where the impugned provision was limited in scope, and did not create general rights. Another relevant aspect of the nature of the impugned provision is whether it is intended to replace legislation introduced by the other level of government, or merely supplement it. An intrusion will be less serious when the impugned provision is meant to coexist with legislation enacted by the other level of government.
Finally, Dickson C.J. considered whether the impugned provision’s enacting body had a history of legislating on the matter in question. A history of legislation in the area supports the legitimacy of the impugned provisions and suggests they will not prove unduly intrusive on the other level of government. Thus the enacting body is “not constitutionally precluded” from enacting similar legislation “where such measures may be shown to be warranted” (p. 673). In General Motors, it sufficed that Parliament had a history of intruding on provincial jurisdiction by creating rights of civil action. This track record demonstrated that the inclusion of such a right was “not constitutionally fatal” (p. 674).
Dickson C.J.’s list of factors did not purport to be exhaustive, and the assessment of the seriousness of an intrusion must ultimately be grounded in the facts of each case. However, the General Motors factors align well with the facts of the present appeal.
Before turning to the question of how seriously the ancillary provisions intrude on provincial jurisdiction, it is useful to describe the nature of the intrusions. Some of the ancillary provisions are criminal in nature and do not significantly intrude on provincial powers. The provisions for enforcement (ss. 45 to 59), promulgation of regulations (ss. 65 to 67), and imposition of penalties (ss. 60 and 61) are essentially part of the criminal prohibitions in ss. 5 to 13. Indeed, many of them are rough analogues to provisions in the Criminal Code . The organizational provisions in ss. 20 to 39 are similar in nature. However, other provisions intrude directly on provincial powers. Of particular significance are the information management provisions in ss. 14 to 19, which define standards of consent and privacy, charge the Agency with managing personal health information, and establish rules for the medical profession. Additionally, the administrative provisions in ss. 40 to 44 endow the Agency with broad powers to grant licences that affect the who, where, when, and how of assisted reproduction.
The question is whether these provisions, taken as a whole, represent a minor incursion on provincial powers, or a substantial one. The first consideration is the scope of the provincial head of power in play. In the present appeal, the ancillary provisions generally fall under the provincial powers over property and civil rights (s. 92(13)) and matters of a merely local or private nature (s. 92(16)). Both of these heads of power are very broad, and they are often seen as sources of residual jurisdiction: see Hogg, at pp. 17-2 and 17-3. The breadth of these heads of power renders the intrusion less serious.
This brings us to the second factor, the nature of the ancillary provisions. None of these provisions purport to create a substantive right. Rather, as explained below, they function merely to assist in enforcing the Act. Without the prohibition regime in ss. 5 to 13, these provisions would serve no purpose; they would establish an agency with nothing to enforce. Consent is obtained, information flows, and privacy is protected — all to ensure the smooth functioning of the criminal prohibitions. Moreover, the ancillary provisions are tailored to a small corner of the vast topography of the provincial power over health: namely, the harmful aspects of assisted human reproduction, insofar as they are specifically targeted by the Act and regulations. The impact of the law on provincial powers is real, but it is confined in a manner consistent with the purpose of the Act. Furthermore, the ancillary provisions are designed to supplement, rather than exclude, provincial legislation. The Act imposes federal rules on the practice of assisted reproduction, but it does not prevent the provinces from regulating this field, especially for the promotion of its beneficial aspects. This conclusion is underscored by the equivalency provision in s. 68, which provides that the Governor in Council may consent to suspending certain portions of the Act and regulations in favour of equivalent provincial laws. The nature of the ancillary provisions points in the direction of a minor intrusion on provincial powers.
Finally, I turn to Parliament’s history of legislating in the field occupied by the ancillary provisions. Parliament has long sought to address issues of morality, health, and security. As discussed above, it has also invoked the criminal law power to uphold regulatory schemes. Of particular relevance is Parliament’s history of administering and enforcing these statutes, often by way of licensing bodies like the Agency: see Firearms Reference; Hydro-Québec. These historical comparisons suggest that the ancillary provisions constitute only a minor intrusion on provincial powers.
In light of these factors, I conclude that the ancillary provisions constitute a minor incursion on provincial jurisdiction. Accordingly, the rational and functional connection test should be applied in this case.
The rational and functional connection test assesses the relationship between the ancillary provisions and the otherwise valid legislative scheme in which they appear. The ancillary provisions must support the scheme in a way that is rational in purpose and functional in effect. This means that they must “complement rather than supplement” the legislative scheme: Papp v. Papp, [1970] 1 O.R. 331 (C.A.), at p. 336. It also means they must be appropriately tailored to fill “gaps” in the legislative scheme that might otherwise lead to inconsistency, uncertainty, or ineffectiveness: Kirkbi AG v. Ritvik Holdings Inc. It need not be shown that the scheme would fail without the ancillary provisions; that would be a test of necessity. Rather, the ancillary provisions must themselves perform a function that complements the other provisions in the scheme, and they cannot have been tacked on merely as a matter of convenience.
The rational, functional connection test recognizes the need to protect the supremacy of each level of government in the areas of jurisdiction assigned to it by the Constitution Act, 1867 . However, it also recognizes that these heads of power are no longer watertight. The complexity of modern legislation will often render it impossible for one level of government to fulfill its constitutional mandate without trespassing on the jurisdiction of the other level. The Court’s endorsement of a flexible, cooperative approach to federalism suggests that this kind of pragmatic lawmaking should be encouraged: see Dickson C.J. in OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2, at p. 18; Canadian Western Bank v. Alberta, at para. 42.
(1) Sections 14 to 19
The first set of ancillary provisions are ss. 14 to 19, which address access to information. 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. Both these goals are rationally connected to the scheme in ss. 5 to 13. The only purpose of these information management provisions is to further the scheme. Functionally, they fill gaps that would otherwise undermine the operation of the prohibition regime.
Consent is central to the scheme established by the Act. Section 2(d) declares that “the principle of free and informed consent must be promoted and applied as a fundamental condition of the use of human reproductive technologies”. This concern is reflected in the consent provisions of s. 8, which bar the use of human reproductive material to create an embryo, or the use of an in vitro embryo, unless the donor consents. The importance of consent is intimately tied to moral concerns, as discussed earlier.
Sections 14 to 19 contain a number of provisions to ensure that participants give consent, have sufficient information to make this consent meaningful, and that their privacy is protected throughout. These provisions ensure that donors are aware of the requirements and protections of the Act and have adequate counselling services so as to give full and informed consent (s. 14(2)). Additionally, they provide for disclosure of relevant health information to participants in, and offspring of the processes (s. 18(3), (4) and (7)) so that they, too, will have the necessary information to manage their own reproductive lives. Furthermore, the information management provisions provide for the withdrawal of consent, requiring the destruction of personal information and reproductive material (s. 16(2) and (3)). Finally, these provisions also protect privacy interests, so that the laudable ends of informed consent do not unduly compromise human dignity (ss. 15(1) and 18(2)).
Compliance is also central to the operation of the Act, because a prohibition regime would be useless if it did not have a mechanism to ensure that its provisions are respected. Sections 14 to 19 achieve this end by coordinating information sharing between the relevant actors: donors, practitioners, the Agency, and the public. With regard to donors, s. 14(2) provides that they will be informed of the prohibitions and protections of the Act, ensuring that they have sufficient information to comply with the Act and demand compliance of practitioners. As for practitioners and other licensees, s. 14(1) provides that they will have sufficient information about donors to avoid contravening the prohibitions in the Act (e.g., by accepting a donation of reproductive material from an underage donor, in contravention of s. 9). Sections 15 and 16 cover the disclosure of personal information to the Agency, the courts and insurers, while s. 17 charges the Agency with maintaining a personal health information registry to assist in administering and enforcing the Act (see also s. 18(1)). Finally, s. 19 gives the public a right to access certain information about the Agency’s activities, thereby promoting compliance by subjecting enforcement of the Act to public scrutiny.
It is not difficult to see how the collection of information will help to ensure that the Act’s prohibitions are respected and, if defied, that such conduct will be effectively prosecuted.
I conclude that ss. 14 to 19 are closely tied to the valid criminal prohibitions in ss. 5 to 13. These prohibitions fill a gap by addressing the practical considerations inherent in the functioning of the legislative scheme. Because they do so in a tailored manner, they constitute a proper exercise of ancillary powers.
(2) Sections 20 to 59 and 65 to 67
The organizational provisions in ss. 20 to 39, the administrative provisions in ss. 40 to 44, the enforcement provisions in ss. 45 to 59, and the regulatory provisions in ss. 65 to 67 are clearly ancillary to the criminal prohibition regime in ss. 5 to 13, furthering it in both purpose and functional effect. All of these provisions present the necessary rational connection to the valid criminal law prohibitions in the Act. I consider each set of provisions in turn.
The organizational provisions in ss. 20 to 39 merely establish the Agency to administer and enforce the federal Act, and, as such, the constitutionality of this portion of the legislation is entirely subsidiary to the constitutionality of the prohibitions in ss. 5 to 13. Indeed, the Attorney General of Quebec does not claim that these provisions are unconstitutional.
The administrative provisions in ss. 40 to 44 are concerned with the issuance of licences for controlled activities (s. 40). This is directly related, as discussed above, to prohibiting harmful and immoral conduct, while excepting beneficial activity. Licensing helps to ensure that selective prohibition targets morally reprehensible conduct, and does so in a flexible manner that can adapt to changing circumstances. It does so by restricting and supervising the use of technologies associated with the artificial creation of human life. In this situation, licensing is about separating good from bad, not about promoting or encouraging the positive aspects of assisted reproduction. Sections 41 to 44 are collateral to this purpose.
The provisions relating to inspection and enforcement of the Act found in ss. 45 to 59 also constitute a valid exercise of ancillary powers. They are part and parcel of the scheme by which Parliament prohibits immoral and potentially harmful uses of human reproductive material, while permitting beneficial uses to continue. Without inspection and enforcement provisions, the prohibitions of ss. 5 to 13 would be ineffective. The manipulation of human reproductive material happens in the privacy of laboratories, requiring special rules for inspection and enforcement. In essence, these provisions are analogous to the search and seizure powers in the Criminal Code , narrowly tailored to the special exigencies of enforcing the Assisted Human Reproduction Act .
Finally, the regulatory provisions in ss. 65 to 67 permit adaptations as required by changing circumstances in the rapidly evolving field of assisted reproduction. Section 65 lists a number of topics on which the Governor in Council may enact specific rules to more precisely tailor the prohibition regime to the particular demands of the moment. This regulatory power is merely the mechanism by which a set of selective prohibitions addresses an ever-changing subject. The Attorney General of Quebec does not seek to have these provisions declared unconstitutional.
(3) Equivalency Provisions
Section 68 of the Act 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 it provides for harmonization and the avoidance of duplication where provincial laws cover the same matters as the Act. Section 68 provides a flexible approach to federal-provincial cooperation, which is appropriate to modern federalism, where matters will frequently attract concurrent legislative authority.
This provision is not seriously attacked, although the Attorney General of Quebec argues that its presence is indicative of the predominantly regulatory nature of the legislation. This is an old argument, and it has been soundly rejected in the jurisprudence. The mere fact that a matter comes within provincial jurisdiction does not preclude it from coming under federal jurisdiction as well. As noted above, this Court has upheld as constitutional provisions that allow the provinces to limit the scope of federal legislation under cooperative schemes: Lord’s Day Alliance of Canada v. Attorney General of British Columbia, [1959] S.C.R. 497, Furtney and Hydro-Québec.
I conclude that s. 68 is constitutional.
(4) Sections 60 and 61
These provisions are not seriously attacked. They simply provide the penal sanctions that are necessary for criminal law provisions. Like the penal provisions of the Criminal Code of Canada , they are valid.
V. Conclusion
I conclude that the impugned sections of the Act are valid. The prohibitions in ss. 8 to 13 fall within the federal criminal law power under s. 91(27) of the Constitution Act, 1867 . The remaining sections are ancillary to this criminal law scheme. Consequently, I would allow the appeal and answer the constitutional question as follows:
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 ?
Answer: No.
English version of the reasons of LeBel, Deschamps, Abella and Rothstein JJ. delivered by
LeBel and Deschamps JJ. — In 2001, Health Canada estimated that every 100th baby in the industrialized world was being conceived through the application of some kind of assisted human reproduction technology (Proposals for Legislation Governing Assisted Human Reproduction: An Overview (May 2001)). The popularity of assisted human reproduction was bound to increase, as it corresponded to a need. The same department reported in 2009 that one in eight Canadian couples experienced problems related to infertility. This appeal does not concern the appropriateness or wisdom of the decision to regulate assisted human reproduction, or even the validity of the Assisted Human Reproduction Act , S.C. 2004, c. 2 (“AHR Act ”), as a whole. Rather, the dispute relates to the connection between certain provisions of the AHR Act and the federal criminal law power. The Attorney General of Canada is appealing as of right from an opinion of the Quebec Court of Appeal on a reference under the Court of Appeal Reference Act, R.S.Q., c. R‑23. The following constitutional question was stated:
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 ?
For the reasons that follow, we would answer this question in the affirmative, except to the extent that the offences provided for in ss. 60 and 61 relate to provisions that are not in dispute. The provisions of the AHR 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, civil rights and local matters. We would therefore dismiss the appeal.
I. Introduction
Connecting the impugned provisions with the heads of power relied on by the parties — criminal law, on the one hand, and property and civil rights, education, hospitals and local matters, on the other — is a particularly delicate exercise because the scopes of certain of these powers are not clearly defined. As we will see, however, even though defining the scopes of certain powers may seem difficult, the powers in question do have real limits and the courts retain a role in reviewing compliance with those limits. To determine whether the government that enacted the impugned provisions has complied with the limits, we will need to review the history of the AHR Act and the doctrines of Canadian constitutional law.
II. History of the Assisted Human Reproduction Act
In 1989, the federal government, which was already concerned about the stakes of genetic manipulation, struck the Royal Commission on New Reproductive Technologies (the “Baird Commission”) to inquire into the existing situation and foreseeable scientific and medical advances in the area of new reproductive technologies. The Baird Commission was mandated to inquire both into the impact of these technologies on health and research and into their ethical, social, economic and legal implications and their impact on the general public. In November 1993, it tabled its final report entitled Proceed With Care: Final Report of the Royal Commission on New Reproductive Technologies (the “Baird Report”). The Baird Commission made two key recommendations in its report:
Cases cited
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Statutes and regulations cited
-
Assisted Human Reproduction Act ¶ 6, ¶ 17, ¶ 20, ¶ 21, ¶ 29, ¶ 30, ¶ 44, ¶ 60, ¶ 64, ¶ 72, ¶ 103, ¶ 122, ¶ 150, ¶ 157, ¶ 158, ¶ 159
- s. 5(1)(g) ¶ 11
- s. 5(1)(f) ¶ 11
- s. 2 ¶ 24, ¶ 75
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- s. 5(1)(h) ¶ 108
- (i) ¶ 108
- (j) ¶ 108
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-
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- (j) ¶ 11
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- s. 18(3) ¶ 143
- (4) ¶ 143
- (7) ¶ 143
- s. 16(2) ¶ 143
- (3) ¶ 143
- 18(2) ¶ 143
- s. 15 ¶ 144
- s. 16 ¶ 144
- s. 17 ¶ 144
- s. 18(1) ¶ 144
- s. 41 ¶ 149
-
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- s. 272 ¶ 98
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Unresolved citations