Battle of wills in Supreme Court of Canada?

Today's decision in Reference re Assisted Human Reproduction Act,
2010 SCC 61 obviously split the Court.

The decision of LeBel, Deschamps, Abella and Rothstein JJ. includes language that is strikingly forceful and most unusual in Canada:


"In sum, the substantive and formal distinctions between controlled activities and activities that are prohibited completely stem from the legislative history, from the nature of the activities and from how they are presented in the AHR Act. The Chief Justice interprets the AHR Act very differently. She disregards its legislative history, even criticizing us for attaching importance to the Baird Report. She takes no account of the distinction the Commission drew in its report between prohibited activities and controlled activities. In this regard, she asserts that the fact that the Commission recognized the positive aspects of assisted human reproduction does not mean that Parliament shared the Commission's concerns. We can only emphasize that there is no factual basis whatsoever for the Chief Justice's interpretation. Her approach is contrary to the usual approach to constitutional analysis. In conducting such analyses, this Court gives considerable weight to the legislative facts. Moreover, in an affidavit filed in evidence during the hearing in the Court of Appeal, Francine Manseau, Senior Strategic Policy Advisor, Assisted Human Reproduction Implementation Office, Department of Health Canada, clearly stated that the mandate received from the Minister had been [translation] "to analyse the Baird Report and develop policy statements consistent with its recommendations and findings" (A.R., at p. 6961). We therefore prefer to keep the legislative history and the distinctions between prohibited and controlled activities in mind. We will now review the parties' positions on the issues."

Wow!