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Reference re Assisted Human Reproduction Act. 2010 SCC 61

Facts:

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

Issue(s):

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

Ratio:

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

Analysis:

MCLACHLIN
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

LEBEL
*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

Holding:

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


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