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Reference re Assisted Human Reproduction Act, 2010 SCC 61


Act prohibited certain things – AG QB accepted that some were fine, but the other prohibitions were an attempt to regulate the whole sector of medical malpractice and research related to assisted reproduction


The validity of the leg scheme as a whole?
The validity of the “controlled activities” prohibitions?
The validity of the admin provisions under the ancillary powers doctrine?


McLachlin: Reasonable basis - Parliament need only have reasonable basis to expect that its legislation will address a moral concern of fundamental concern of importance to enact a criminal law

LeBel: Where government action is grounded in the criminal law, the public purpose must involve suppressing an evil or safeguarding a threatened interest


*Criminal law objectives, such as peace, order, security, morality, and health do not occupy separate water-tight compartments
*1st characterized the matter to which the Act relate – NOW does is come w/in the scope of the fed crim law power – to determine this, the matter must consider whether the requirements are meant:
**1. A prohibition
**2. Backed by a penalty
**3. With a criminal law purpose

*Criminal law does not require absolute prohibitions (R v Morgentaler)
*It is open to Parliament to create regulatory schemes under criminal law power – provided they further the law’s crim purpose
*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.

*It is not enough to identify a public purpose that would justify Parliaments action – also,
*Evil or threat must be real and must relate to the conduct or facts that can be indentified and established
**It must be possible to describe the risk of harm precisely enough that a connection can be established between the apprehended harm and the evil in question
*In cases in which the purpose being relied on was the protection of public health, the courts have shown less deference to Parliament if the risk could not be easily demonstrated
*The fact that certain provisions of a statute have a connection with the criminal law does not mean that the entire statute can be justified in the same manner and on the same basis

Because of this reasoning, the ultimate effect of the decision is unclear


Provisions are valid under the federal criminal law power


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).

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