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Reference re Assisted Human Reproduction Act. 2010 SCC 61


Provisions relating to the Fed Act
• Canada – purpose of Act is to prohibit practices that would undercut moral values
• Quebec – purpose to regulate reproductive medicine and research


Is the Act properly characterized as legislation to curtail practices that may contravene morality..?


In determining purpose of leg – parl can look at extrinsic evidence.

2 steps in determining whether a law is valid: characterization and classification:
1. Dominant “matter” or “pith and substance” of the law must be determined
2. Does it fall under a head of power assigned to the enacting body


1(a) Purpose:
*To determine which characterization is correct, one must consider the purpose and effect of legislative scheme
*Text of the act suggests that its dominant purpose is to prohibit inappropriate practices, rather than to promote beneficial ones
**Dominant thrust of the leg is prohibitory
*Criminal Law is concerned with prohibiting undesirable conduct, and cannot extend to promoting the beneficial aspects of assisted reproduction
**Rely on Baird Commission (extrinsic evidence) to show that the Fed intended to use national medical standards as a guise under crim law
*The Act employs a penal and regulatory form – but Parl may validly employ regulations as part of a crim law target
**What matters is if the dominant purpose is criminal
*The Act has one target – it targets conduct that Parl has found to be reprehensible, and in doing so it incidentally permits beneficial practices through regulations – BUT that does not make is unconstitutional

1(b) Effects of Leg
*Doctrine of pith and substance permits either level of gov to enact laws that have “substantial impact on matter outside its jurisdiction” – issue in such cases is to determine the dominant effect of the law
**The dominant effect of the Act is to prohibit a number of practices which Parl considers immoral and/or which it considers a risk to health and security

2 – Does the Matter Fall Under Head of Power (Crim Power in s.91(27))
*Ancillary Powers Doctrine – holds that legislative provisions which, in pith and substance, fall outside the jurisdiction of the gov that enacted them, may be upheld on the basis of their connection to a valid leg scheme
*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
**The more an ancillary provision intrudes on the competency of the other level of gov, the higher the threshold for upholding it on the basis of the ancillary powers doctrine

*Applies the necessarily incidental analysis – began by looking at the pith and substance of the impugned provisions, rather than the Act in its entirety
*Relied on the Baird Report
*The impugned provisions have a direct impact on the relationship between physicians and patients, donors, etc – Parl is trying to regulated things that fall under prov (92 (7) (13))
*Found that the provisions are not supported under crim law power – falls under prov jurisdiction


Court was split 4-4-1 – Majority of the Act determined to be ultra vires

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