Important division of powers case -- Assisted Human Reproduction Act partly unconstitutional

Reference re Assisted Human Reproduction Act, 2010 SCC 61
was just released. It is a difficult case that split the Court. It bears close reading. A summary follows.

In 1989, the federal government established the Royal Commission on New Reproductive Technologies (the "Baird Commission") to study assisted human reproduction.  In its report, the Baird Commission expressed concern about certain practices in the field and pressed for legislation.  Between 1993 and 1995, the federal government consulted with the provinces, the territories and independent groups for advice on the issue, and the result was the passage of the Assisted Human Reproduction Act in 2004.  The Act contains prohibitions and other provisions designed to administer and enforce them.  It is set up as follows:

 

                    (1) Sections 5 to 9 prohibit human cloning, the commercialization of human reproductive material and the reproductive functions of women and men and the use of in vitro embryos without consent.  (2) Sections 10 to 13 prohibit various activities unless they are carried out in accordance with regulations made under the Act, under licence and in licensed premises.  These "controlled activities" involve manipulation of human reproductive material or in vitro embryos, transgenic engineering and reimbursement of the expenditures of donors and surrogate mothers.  (3) Sections 14 to 19 set up a system of information management related to assisted reproduction.  (4) Sections 20 to 39 establish the Assisted Human Reproduction Agency of Canada.  (5) Sections 40 to 59 charge the Agency with administering and enforcing the Act and regulations, and authorize it to issue licences for certain activities related to assisted reproduction.  (6) Sections 60 and 61 provide for penalties, (7) ss. 65 to 67 authorize the promulgation of regulations, and (8) s. 68 gives the Governor in Council power to exempt the operation of certain provisions if there are equivalent provincial laws in force that cover the field.

 

                    The Attorney General of Quebec accepted that some of the provisions were valid criminal law, but challenged the constitutionality of the balance of the Act in a reference to the Quebec Court of Appeal.  According to the Attorney General of Quebec, ss. 8 to 19, 40 to 53, 60, 61 and 68 are attempts to regulate the whole sector of medical practice and research related to assisted reproduction, and are ultra vires the federal government.  The Quebec Court of Appeal held that the impugned sections were not valid criminal law since their pith and substance was the regulation of medical practice and research in relation to assisted reproduction.

 

                    Held:  The appeal should be allowed in part.

 

                    Sections 8, 9, 12, 19 and 60 of the Act are constitutional.

 

                    Sections 10, 11, 13, 14 to 18, 40(2), (3), (3.1), (4) and (5) and ss. 44(2) and (3) exceed the legislative authority of the Parliament of Canada under the Constitution Act, 1867.

 

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

 

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

 

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

 

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

 

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

 

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

 

                    Together with ss. 5 to 7, ss. 8 to 13 form a valid prohibition regime that is consistent with the objectives of the Act as a whole.  These provisions contain prohibitions, backed by penalties, and are directed in pith and substance to valid criminal law goals.  Although some of the prohibitions impact on the regulation of medical research and practice, the impact is incidental to the legislation's dominant criminal purpose and limited to those ends.  Furthermore, subject to the Act's prohibitions, the provinces are free to enact legislation promoting beneficial practices in the field of assisted reproduction.

 

                    While not criminal law in pith and substance, the administrative, organizational, and enforcement provisions in ss. 14 to 68 are integrated into the prohibition regime set up by ss. 5 to 13.  Some of these ancillary provisions are criminal in nature and do not significantly intrude on provincial powers, such as the provisions for enforcement (ss. 45 to 59), promulgation of regulations (ss. 65 to 67), and imposition of penalties (ss. 60 and 61).  The organizational provisions in ss. 20 to 39 are also essentially part of the criminal prohibitions in ss. 5 to 13.  The information management provisions in ss. 14 to 19 and the administrative provisions in ss. 40 to 44 represent a minor incursion on provincial powers.  They generally fall under the provincial powers over property and civil rights and matters of a merely local or private nature.  However, since these are very broad heads of power, the intrusion is less serious.  Moreover, the provisions do not purport to create a substantive right, but function merely to assist in enforcing the Act.  Without the prohibition regime in ss. 5 to 13, they would serve no purpose.  Furthermore, the provisions are designed to supplement, rather than exclude provincial legislation.  Finally, Parliament has a history of administering and enforcing statutes addressing issues of morality, health and security by way of licensing bodies.  Since the ancillary provisions constitute a minor incursion on provincial jurisdiction, the rational and functional connection test should be applied to determine whether they are valid under the ancillary powers doctrine.

 

                    Sections 14 to 68 support the legislative scheme in a way that is rational in purpose and functional in effect.  Sections 14 to 19 define standards of consent and privacy, charge the Agency with managing personal health information, and establish rules for the medical profession.  These provisions harness the flow of information, first to deal appropriately with consent and related privacy issues, and second to facilitate compliance with the Act.  Sections 40 to 44 relate to the issuance of licences for controlled activities, and are directly related to prohibiting harmful and immoral conduct while excepting beneficial activity.  The provisions relating to inspection and enforcement found in ss. 45 to 59 are also part and parcel of the scheme prohibiting immoral and potentially harmful uses of human reproductive material.  Sections 60 and 61, which provide penal sanctions, are necessary for criminal law provisions. Finally, s. 68 permits the Governor in Council to declare provisions of the Act inapplicable in a province where a provincial law contains similar provisions, pursuant to an agreement with that province.  This provision recognizes the fact that assisted human reproduction is an area of overlapping jurisdiction, and allows provincial schemes to govern exclusively where provincial laws are equivalent to the federal scheme.  The ancillary provisions are thus valid under the ancillary powers doctrine.

 

Per LeBel, Deschamps, Abella and Rothstein JJ.:  Sections 8 to 19, 40 to 53, 60, 61 and 68 of the Act exceed the legislative authority of the Parliament of Canada under the Constitution Act, 1867.  The provisions of the Act concerning controlled activities, namely those involving assistance for human reproduction and related research activities, do not fall under the criminal law power, but belong to the jurisdiction of the provinces over hospitals, property and civil rights, and matters of a merely local nature.

 

                    The first step of the constitutional analysis involves identifying the pith and substance (purpose and effects) of the impugned provisions.  Those provisions must be considered separately before considering their connection with the other provisions of the Act, since the purposes and effects of a statute's many provisions can be different.  It is also important to identify the pith and substance of the impugned provisions as precisely as possible, since a vague characterization could lead not only to the dilution of and confusion with respect to the constitutional doctrines, but also to an erosion of the scope of provincial powers as a result of the federal paramountcy doctrine.  If the pith and substance of the provisions falls within the jurisdiction of the other level of government, it is necessary first to assess the extent of the overflow in light of the purpose of the provisions and to weigh their effects.  It must then be determined whether the provisions form part of an otherwise valid statute.  Finally, the impugned provisions must be considered in the context of the entire statute in order to determine whether they are sufficiently integrated with the other provisions of the otherwise valid statute.  This review must make it possible to establish a relationship between the extent of the jurisdictional overflow and the importance of the provisions themselves within the statute of which they form a part.  There are two applicable concepts:  functionality and necessity.  The more necessary the provisions are to the effectiveness of the rules set out in the part of the statute that is not open to challenge, the greater the acceptable overflow will be.  Care must be taken to maintain the constitutional balance of powers at all stages of the constitutional analysis.

 

                    In this case, the purpose and the effects of the impugned provisions relate to the regulation of a specific type of health services provided in health‑care institutions by professionals to individuals who for pathological or physiological reasons need help to reproduce.  Their pith and substance is the regulation of assisted human reproduction as a health service.  In the Act, substantive and formal distinctions are drawn between prohibited activities and controlled activities.  This dichotomy appears clearly from Parliament's statement of principles in s. 2 and from the titles used in the Act itself.  Furthermore, whereas the category of controlled activities concerns services that are available to persons in need of assistance because of an inability to reproduce and that are used by professionals who provide the required help, the activities that are prohibited completely do not involve techniques used in assisted human reproduction.  The impugned provisions do not have the same purpose as the unchallenged provisions.  They were enacted to establish mandatory national standards for assisted human reproduction.  As can be seen from the legislative history, this was how Parliament believed that the benefits of assisted human reproductive technologies and related research for individuals, for families and for society in general could be most effectively secured.  When it decided to regulate what are called "controlled" activities, Parliament took into account the concerns expressed about the ethical and moral aspects and the safety of assisted reproductive activities.  And in so doing it intended to implement a recommendation from the Baird Report in order to ensure that Canadians could have access to assisted reproduction services.  Regarding the activities that are prohibited completely, Parliament responded to what was presented to it as a consensus that they are reprehensible.  Those prohibitions are therefore intended to prevent activities and the use of technologies that do not form part of the process of genetic research or assisted human reproduction.

 

                    A review of the effects of the provisions of the Act confirms that the impugned scheme seriously affects the practice of medicine and overlaps or conflicts with many Quebec statutes and regulations.  The impugned provisions have a direct impact on the relationship between physicians called upon to use assisted reproductive technologies, donors, and patients.  Section 8 sets out rules on consent for the removal and use of human reproductive material, even though rules on consent already exist in the Civil Code of Québec.  Similarly, s. 12 implicitly authorizes surrogacy contracts, whereas the Code provides that su
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