Unofficial English Translation
Renvoi fait par le gouvernement du Québec en vertu de la Loi sur les renvois à la Cour d'appel, L.R.Q. ch. R-23, relativement à la constitutionnalité des articles 8 à 19, 40 à 53, 60, 61 et 68 de la Loi sur la procréation assistée, L.C. 2004, ch. 2 (Dans l'affaire du) 2008 QCCA 1167
COURT OF APPEAL
CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: DATE: 500-09-015177-041 June 19, 2008
CORAM: THE HONOURABLE PAUL-ARTHUR GENDREAU J.A. JACQUES CHAMBERLAND J.A. PIERRETTE RAYLE J.A. In the matter of a Reference by the Government of Quebec pursuant to the Court of Appeal Reference Act, R.S.Q., c. R-23, concerning the constitutional validity of sections 8 to 19, 40 to 53, 60, 61 and 68 of the Assisted Human Reproduction Act, S.C. 2004, c. 2 ATTORNEY GENERAL OF QUEBEC APPLICANT v. ATTORNEY GENERAL OF CANADA RESPONDENT JUDGMENT
I – INTRODUCTION
 Upon application by the Government of Quebec,1 the Court must answer the following question:
Orders in Council Reference to the Court of Appeal re Assisted Human Reproduction Act, O.C. 11772004, 15 December 2004, G.O.Q. 2005.II.62 and Amendment to Order in Council 1177-2004
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Are sections 8 to 19, 40 to 53, 60, 61 to 68 of the Assisted Human Reproduction Act,2 S.C. 2004, c.2, ultra vires the Parliament of Canada in whole or in part under the Constitution Act, 1867?3
 The Court will first review the context in which the Assisted Human Reproduction Act (the “Act”) was enacted, after which it will outline the content of the Act and summarize the claims of the two parties to the reference. It will then consider the question raised, first by recalling the procedure of constitutional analysis in Canadian federalism, and then by describing the respective areas of constitutional jurisdiction claimed by both sides. Subsequently, the analytical principles set out in the various legislative provisions contemplated by the reference will be applied, and the Court will conclude its analysis by answering the question submitted by the Government of Quebec.
II – LEGISLATIVE HISTORY OF THE ACT
 It will be helpful to recall the context in which this statute was enacted by means of a brief overview of the various legislative and executive actions taken by Parliament and the federal government in matters relating to assisted reproduction in recent years.  On October 25, 1989, motivated by concerns regarding the moral, religious, legal and social repercussions of scientific advances in assisted reproduction,4 the Government of Canada passed an Order in Council creating the Royal Commission on New Reproductive Technologies (the “Baird Commission”, named after its president, pediatrician Patricia S. Baird).5 The Commission was mandated to investigate and make recommendations with respect to the use of new reproductive technologies in Canada. On November 15, 1993, the Baird Commission submitted its final report.6 It found that there was a need for Parliament to legislate to prohibit certain activities or technologies deemed to be unacceptable (human cloning, the creation of animal-human hybrids, etc.). It also recommended that Parliament create a national commission to regulate the aspects of various assisted reproductive technologies considered to be acceptable, and to issue licences to people who wish to apply these technologies.7  In April 1995, Health Canada asked a discussion group composed of researchers and experts for its opinion on research and experimentation on human embryos. Like
concerning a Reference to the Court of Appeal re the Assisted Human Reproduction Act, O.C. 732006, 14 February 2006, G.O.Q. 2006.II.1290, made pursuant to the Court of Appeal Reference Act, R.S.Q., c. R-23. Short title for the Act respecting assisted human reproduction and related research, S.C., 2004, c. 2, which received royal sanction on March 29, 2004. The sections contemplated in the reference are reproduced in the Schedule. House of Commons Debates, (6 April 1989) at 186 (Mr. O'Kurley). P.C. 1989-2150, 25 October 1989. Royal Commission on New Reproductive Technologies, Proceed with Care (final report), Ottawa, 1993 (Patricia Baird). Ibid. 1 at xxxii and 106–125.
2 3 4 5 6 7
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the Baird Commission, the discussion group found that prohibitions were needed to prevent certain experiments and activities relating to human embryos, such as those having to do with cloning. It also emphasized the importance of establishing rules to govern other types of research on the human embryo, to be implemented through a national administrative body.8  On July 27, 1995, Diane Marleau, then Federal Minister of Health, asked medical researchers and practitioners to refrain from using new assisted reproductive practices and technologies for a certain period of time. Among the technologies targeted by this voluntary moratorium were the sex selection of unborn children based on non-medical criteria, onerous surrogate motherhood contracts, and human cloning. At the same time, the Minister announced the creation of an advisory committee to advise Health Canada respecting compliance with the moratorium.9  On June 1, 1996, the Processing and Distribution of Semen for Assisted Conception Regulations10 came into force. Under this regulation, which creates a uniform standard for sperm donation for assisted reproduction across Canada, sperm was now subject to a series of screening tests to reduce the risk of disease transmission.  On June 14, 1996, the first bill dealing with assisted reproduction was tabled in the House of Commons.11 Bill C-47, composed of fourteen sections, listed prohibited actions and imposed penalties for violations. The bill prohibited assisted reproductive techniques deemed to be totally unacceptable (producing zygotes from human and animal reproductive material, selecting the sex of embryos, etc.) and the commercialization of the human body (payment to surrogate mothers).  In June 1996, Health Canada published a document explaining the content of Bill C-47 to the Canadian public. It also set out the framework of a second bill that would add a section to the first permitting the regulation of assisted reproductive technologies deemed to be acceptable.12  Bill C-47 died on the Order Paper when the 1997 federal elections were called.
 In June 2000, after consulting with the provinces about a possible federal law prohibiting certain assisted reproductive technologies and regulating others, Health
8 9 10 11 12
Recherche sur l'embryon humain au Canada (Final Report), discussion group on research on embryos, (Ottawa, 1995) at 2-3. Health Canada, News Release 1995-57, “Health Minister Calls for Moratorium on Applying Nine Reproductive Technologies and Practices in Humans” (July 27, 1995). SOR/96-254, enacted under the Food and Drugs Act, R.S.C. c. F-27. Bill C-47, An Act respecting human reproductive technologies and commercial transactions relating to human reproduction, 2nd Sess., 35th Parl., 1996 (“Bill C-47”). Health Canada, New Reproductive and Genetic Technologies: Setting Boundaries, Enhancing Health (Ottawa: Minister of Supply and Services Canada) June 1996.
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Canada published a report of the discussions and the comments it had gathered.13 The document refers to a consensus on the need for Parliament to act in the area of assisted reproduction, but also notes objections raised by certain provinces,14 including Quebec, regarding the regulatory aspects of a possible federal law on the matter.  On May 9, 2002, the federal Health Minister, following the recommendations of the Standing Committee on Health regarding the assisted reproduction bill,15 tabled Bill C-56, the Assisted Human Reproduction Act in the House of Commons.16 This bill lists prohibited activities and technologies, regulates those that are permitted under specific conditions, creates an agency to oversee the application of the act, implements a system for collecting information, and creates sanctions for violations of the act; in a sense, it established the general framework for the current Act.  Bill C-56 died on the Order Paper in September 2002 and was replaced the following month with Bill C-13, An Act respecting assisted human reproduction and related research.17 Identical to the bill that preceded it, Bill C-13 passed third reading in the House of Commons and the second reading in the Senate, after amendments reflecting the recommendations of the Standing Committee on Health.18 However, it too died on the Order Paper in November 2003.  Bill C-6, tabled during the 3rd session of the 37th legislature, was the successor to the previous bills and was inspired to a great extent by the work of the Baird Commission.19 It was finally adopted by the House of Commons on February 11, 2004 and sanctioned on March 29, 2004.  The Act came into force on April 22, 2004, with the exceptions of sections 8, 12, 14 to 19, 21 to 59, 72 and 74 to 77. Sections 21 to 24 (save for paragraphs 24(1)(a), (e) and (g)), 25 to 39, 72, 74, 75 and 77 came into effect on January 12, 2006. Section 8 came into force on December 1, 2007, at the same time as the Assisted Human Reproduction (Section 8 Consent) Regulations,20 published in the Canada Gazette on June 27, 2007.
13 14 15 16 17 18 19 20
Health Canada, Feedback Report—Discussions and Written Comments on Proposed Federal RGTs Legislation, Ottawa, June 2000. Ibid. The document does not identify the provinces opposed, however, except for Quebec. Canada, House of Commons Standing Committee, “Assisted Human Reproduction: Building Families”, Ottawa, December 2001. Bill C-56, Assisted Human Reproduction Act, 1st sess., 37th Parl., 2002. Bill C-13, An Act respecting assisted human reproduction and related research, 2nd sess., 37th Parl, 2003. Canada, House of Commons Standing Committee, “First Report”, 12 December 2002. Bill C-6, An Act respecting assisted human reproduction and related research, 2nd sess., 37th Parl, 2003. S.O.R. 2007/137; the regulation governs the obtaining of consent from donors for the purposes of assisted reproduction.
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 To date, sections 12, 14 to 19, 24(1)(a), (e) and (g), 40 to 59 and 76 have not come into force, and no other regulation has been promulgated.  Finally, the evidence shows that throughout the various stages leading to the enactment of the Act, the Government of Quebec expressed its disagreement by way of letters to the federal Health Minster, arguing that its regulatory aspects violate the division of powers. On December 18, 2007, Quebec Health Minister Philippe Couillard tabled Bill 23 before the National Assembly. It was entitled An Act respecting clinical and research activities relating to assisted procreation.21
THE CONTENT OF THE ACT
 Briefly, the Act covers all clinical and research activities relating to assisted human reproduction. It defines the activities that are prohibited (“Prohibited Activities”, sections 5 to 9) as well as those that may be exercised only after obtaining the required licence and under certain conditions (“Controlled Activities”, sections 10 to 13). It establishes a mechanism to collect personal information about people who use assisted reproductive technology and specifies the circumstances in which such information may be disclosed. It establishes a registry to contain all of this information (sections 14 to
This bill reproduced Bill 89, An Act respecting clinical and research activities as regards assisted human reproduction and amending other legislative provisions, the principle of which had been passed by the National Assembly of Quebec on April 14, 2005, but which died on the Order Paper when the March 2007 provincial elections were called. Bill 23 is described in the accompanying notes as follows: The object of this bill is to regulate clinical and research activities relating to assisted procreation in order to ensure high-quality, safe and ethical practices. The bill is also designed to encourage the ongoing improvement of services in that area. In that respect, the bill provides that any assisted human procreation activity, allowing for exceptions, must be carried out in a centre for assisted procreation for which a licence has been issued by the Minster of Health and Social Services and which is under the direction of a physician. The director must ensure that the activities carried out in the centre reflect high-quality, safe and ethical practices. The bill also states that a centre must have its activities accredited by a body recognized by the Minister. This bill requires that a research project on assisted procreation activities be approved and supervised by a research ethics committee. The bill also requires a centre to prepare an annual activity report. It grants inspection powers to the Minister and provides that the Minister may request the Bureau of the Ordre professionnel des médecins du Québec to provide opinions on the quality, safety and ethical nature of the assisted procreation activities and on the professional competence of the physicians in a centre, as well as on the standards to be adopted to improve the quality, safety ethical nature of assisted procreation activities. Lastly, the bill grants regulatory powers to the Minister and the Government as regards centres for assisted procreation and their activities, and prescribes administrative and penal sanctions to ensure that the provisions of the law are respected.
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19), and creates the Assisted Human Reproduction Agency (the “Agency”) (sections 21 to 53). Lastly, it imposes criminal sanctions on persons who contravene the Act (sections 60 to 64).  The Act begins by criminalizing a series of technologies and activities relating to assisted reproduction. Section 5 prohibits human cloning, the creation of an in vitro embryo for any purpose other than creating a human being, the creation of hybrids or chimeras for the purpose of transplanting them into a human being or a non-human life form, and so on. Sections 6 and 7 reiterate the principle of non-commercialization of the human body by prohibiting any form of payment to surrogate mothers, as well as the purchase or sale of ova, sperm, in vitro embryos, and human cells or genes. Section 8 prohibits the use or removal of human reproductive material for the purpose of creating an embryo, as well as the use of an in vitro embryo without the donor’s consent. Finally, section 9 prohibits the removal or use of ova or sperm of a person under 18 years of age.  The Act goes on to prohibit a second series of activities relating to assisted reproduction, except in accordance with the regulations and the authorization of the Agency (sections 10 to 13). These controlled activities consist, inter alia, of the manipulation, alteration or treatment of human reproductive material for the purpose of creating an embryo, the alteration, treatment or use of an in vitro embryo, the combination of the human genome with that of another species, and the reimbursement of expenditures incurred by donors and surrogate mothers. These “controlled activities” target both clinical practice and research in assisted reproduction. Finally, section 13 provides that these controlled activities may only be exercised at a facility that has been licensed by the Agency (section 40).  The Act also stipulates the mandatory collection of information relating to persons who use assisted reproduction (section 14). It lists the situations and conditions applicable to the disclosure of this information (sections 15 and 18). It sets out the situations in which information under the control of the persons concerned may be accessed or destroyed (section 16). Finally, it creates a registry to contain this personal information (section 17).  The Act also creates the Assisted Human Reproduction Agency of Canada, to be responsible for the implementation of the Act (section 21). The Agency is an administrative body that issues licences for “controlled activities” and monitors the application of the Act in Canada and the evolution of medically assisted reproduction both here and internationally (sections 22, 24, and 40 to 53).  Section 65 of the Act confers on the federal government a broad regulatory power that targets, in particular, all aspects of the determination of “controlled activities”, the establishment of conditions applicable to licences under the Act, licensing
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qualifications, and the establishment of standards for facilities in which “controlled activities” may be carried out.22  Finally, the Act imposes criminal sanctions ranging from a fine (to a maximum of $500,000) to imprisonment (to a maximum of 10 years) for any contravention of the Act and its regulations (sections 60 to 64).
SUBMISSIONS OF THE PARTIES
A. Attorney General of Quebec
 The Attorney General of Quebec acknowledges that genetic manipulation and the commercialization of human reproductive material, prohibited in sections 5 to 7 of the Act, are matters of criminal law and therefore fall within the exclusive jurisdiction of the federal Parliament. These provisions are not challenged. They deal essentially with human cloning, the determination of the sex of the embryo (for reasons other than medical), the creation of an in vitro embryo or its preservation (for purposes other than the creation of a human being), the transplant of gametes from another life form into a human being or research in this area, the creation of chimeras or hybrids, the payment of surrogate mothers, and the commercialization of gametes and other human reproductive material.  The Attorney General of Quebec submits that sections 8 to 19, 40 to 53, 60, 61 and 68 of the Act violate the division of powers set out in the Constitution Act, 1867 and are therefore invalid. He argues that in pith and substance, the impugned provisions regulate the entire field of medicine relating to assisted procreation, including health professionals and the facilities in which these professionals work, the patient-doctor relationship, and the civil aspects of medically assisted procreation.  The Attorney General of Quebec is of the opinion that the impugned provisions thereby unjustifiably infringe on provincial areas of jurisdiction as recognized by the Constitution Act, 1867 in subsections 92(7), (13) and (16) and section 93, that is, the exclusive powers of the provincial legislature to legislate in relation to the establishment, maintenance, and management of hospitals, property and civil rights, matters of a merely local or private nature, and in matters of education and the training of health care providers.  The Attorney General of Quebec states that the impugned provisions aim to create one uniform standard for the provision of medical services and assisted reproduction. It submits that, through the provisions in question and the regulations that may be enacted under it, the Act would govern all aspects of assisted procreation services, an area that falls under exclusive provincial jurisdiction. For example, the
It should be noted, however, that aside from the Assisted Human Reproduction (Section 8 Consent) Regulations, none of the regulations to which the Act refers has yet been enacted; supra note 20.
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consent of donors (section 8), the reimbursement of expenditures incurred by donors (section 12), the licencing of doctors and the establishments in which they work (sections 10 and 13), the right to carry out research (subsections 40(2) to (7)), the confidentiality of information collected and its disclosure (sections 14 to 19), and regulation of the application of the Act through mechanisms of inspection and imposition of administrative and criminal penalties (sections 46 and following). The Attorney General of Quebec also points to the broad regulatory power set out in the Act, which in its view enables the federal government to be even more intrusive in its regulation of medical practice everywhere in Canada (section 65).  In short, in the view of the Attorney General of Quebec, unlike the prohibitions in sections 5 to 7 outlawing certain activities relating to assisted reproduction, which are without a doubt criminal law matters, the treatment of infertility and medically assisted reproduction are matters relating to health and the provisions of the Act regulating them are therefore constitutionally invalid.  According to the Attorney General of Quebec, the effect of the impugned provisions on Quebec legislation confirms his submissions as to their pith and substance. He alleges that the Act interferes with the provision of assisted reproduction health services and the civil aspects of assisted reproduction, two areas that lie within provincial jurisdiction. The Act therefore has the effect of taking over an entire sector in the area of health, which normally falls under the jurisdiction of the provinces. The Attorney General of Quebec affirms that the Act affects more than fourteen Quebec laws and regulations relating to health, including: articles 11 to 25 of the Civil Code of Québec dealing with consent to health care and the non-commercialization of the human body; article 541 of the Civil Code of Québec declaring the absolute nullity of any surrogacy contract; the Act respecting health services and social services23 with respect to the licencing of health institutions for clinical practice and research as well as their management, control, supervision, consent to care and the disclosure of personal information; the Professional Code,24 Medical Act25 and the Code of ethics of physicians26 with respect to the right to practice of doctors, the regulation of medical practice, consent to care, the approval of research, and the confidentiality of information; the Act respecting Access to documents held by public bodies and the Protection of personal information;27 and the Act respecting the Protection of personal information in the private sector28 regarding the protection and disclosure of personal information.  The Attorney General of Quebec also claims that the impugned provisions cannot be justified by the federal power in criminal matters as provided in subsection
23 24 25 26 27 28
R.S.Q., c. S-4.2 R.S.Q., c. C-26. R.S.Q., c. M-9. S.Q. c. M-9, r. 4.1. R.S.Q., c. A-2.1. R.S.Q., c. P-39.1.
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91(27) of the Constitution Act, 1867. It maintains that the mere act of creating prohibitions to which sanctions are attached is not sufficient to make legislation that infringes on provincial jurisdiction a valid criminal statute; such a statute must also have a recognized criminal law purpose. In its view, the impugned provisions are not directed at protecting the public from a “legitimate evil” or an “injurious or undesirable effect”. Medically assisted reproduction, carried out in accordance with standard practices, is neither a criminal activity nor an “evil” against which Canadians need protection.  The Attorney General of Quebec claims that the provisions at issue are not made valid by their objective of preventing a possible “evil” because according to this logic all areas of health could be regulated by the federal Parliament. In addition, the significant impact of the Act on Quebec legislation demonstrates that it targets primarily provincial areas of jurisdiction and does not have a valid criminal law purpose. While broad, Parliament’s power to legislate in criminal matters is not unlimited and, according to the Attorney General of Quebec, may not be used to justify a major infringement of provincial jurisdiction.  The Attorney General of Quebec argues that while the area of health as a whole may be considered to be a vague subject matter, certain aspects of it, such as medical practice, the management of health institutions, or the patient-doctor relationship, can be more specifically defined. The Act touches on all these subjects, even though they fall within exclusive provincial jurisdiction.  Finally, the Attorney General of Quebec argues that the Attorney General of Canada cannot rely on section 68 to justify the constitutional validity of the Act. Rather, this section illustrates Parliament’s discomfort with respect to the constitutional validity of the Act and in no way mitigates the infringement. B. The Attorney General of Canada
 The Attorney General of Canada defends the validity of the impugned provisions by relying on the federal power to legislate in criminal matters (subsection 91(27) of the Constitution Act, 1867). It argues that the constitutional validity of the impugned provisions is justified, inter alia, by the double aspect doctrine, according to which both levels of government may legislate on different aspects of the same matter, such as health. The pith and substance of the Act and its provisions are to safeguard public health, safety and morality. In this way, the very essence of the Act constitutes a valid criminal law purpose.  The Attorney General of Canada emphasizes the validity of the legislative technique employed, namely, the creation of prohibitions with certain strictly defined exemptions. It also maintains that the effects of the impugned provisions on Quebec legislation are minor, and that the Act does not conflict with Quebec laws and regulations but constitutes a complementary legislative framework.
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 In the alternative, the Attorney General of Quebec argues that even if there is infringement on provincial jurisdiction, the impugned provisions constitute an integral and inseparable part of the Act and are therefore valid.  According to the Attorney General of Canada, the impugned provisions are intended to protect vulnerable persons (section 9), public morality (sections 8, 9, 11, 12(1) and 12(2)), and public health and safety (sections 10 and 12(3)), or are necessary to the realization of these objectives (sections 13 to 19, 40 to 53, 60 and 61). Medically assisted reproduction, while socially desirable as a solution to infertility problems, remains a new area of science and entails several risks to the health and safety of those involved, whether donors, recipients, or future children. Assisted reproduction is a recent phenomenon that is constantly changing. Therefore, unsafe or ethically reprehensible access to assisted reproduction constitutes an “evil” that requires the legislative intervention of Parliament.  According to the Attorney General of Canada, the effect of the impugned provisions on provincial areas of jurisdiction is incidental and does not result in constitutional invalidity. It notes that the double aspect doctrine and the existence of such a broad and ill-defined area as health naturally and inevitably leads to the possibility of overlap in a federal system like ours. He submits that the impugned provisions touch on a very limited aspect of medical practice and not the entire area of health; they contemplate primarily laboratory work and not the patient-doctor relationship (sections 10, 11, 13, 40(1), 42 and 61). The impugned provisions and their regulations are and will continue to be complementary to, and not in conflict with, the provincial legislation in force. Thus, section 8 of the Act regarding the consent of donors of embryo or human reproductive material does not rule out the application of the relevant provincial legislation, since the very definition of “consent” specifies that it must be given “in accordance with the applicable law governing consent”, which most likely includes provincial law (section 3).  The Attorney General of Canada also notes the lack of conflict between sections 6 and 12 of the Act, the former prohibiting the payment of surrogate mothers and the latter permitting the reimbursement of expenditures they incur, and article 541 of the Civil Code of Québec establishing the absolute nullity of surrogacy contracts. They argue that these provisions do not validate a contract that is otherwise null under provincial law because subsection 6(5) of the Act specifies that the provision does not affect the validity under provincial law of any agreement under which a person agrees to be a surrogate mother.  Similarly, the creation of a national body charged with the supervision and application of the Act in no way affects the control already exercised by the provinces in health and health professional disciplinary matters. There is nothing preventing the coexistence of several levels of inspection and regulation. In short, the Attorney General of Canada argues that if there is any infringement, the overlap is minor and does not affect Quebec laws relating to health matters.
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 The Attorney General of Canada also states that the legislative technique used, namely, the creation of prohibitions with regulated exemptions, is a valid exercise of Parliament’s jurisdiction in criminal law matters. In support of this claim, it cites the jurisprudence of Hydro-Québec,29 RJR-MacDonald Inc. v. Canada (P.G.),30 and Reference re Firearms Act.31 It adds that, much like the environment (the subject matter at issue in Hydro-Québec), health is a broad and complex area that does not fall within one exclusive constitutional jurisdiction and that a regulatory scheme may be established in this area in support of a valid criminal law.  In the alternative, the Attorney General of Canada argues that even if the Court were to conclude that there is infringement, the provisions of the Act would still be valid since they form an integral part of a valid criminal statute. The legislative scheme created by the impugned provisions aims to protect the health and safety of persons who rely on assisted reproductive technology, promoting respect for the moral values of Canadian society. The exemptions in matters relating to assisted reproduction, the control and supervision of the activities contemplated in these exemptions, and the collection of information are all necessary to achieving the purpose of the Act.  Finally, the Attorney General of Canada rejects the application of section 94 of the Constitution Act, 1867, arguing that the Act is based upon the federal criminal law power and not upon civil law jurisdiction. It states that far from recognizing any constitutional weakness in the Act, section 68 illustrates the double aspect doctrine and the concept of acceptable overlap in our federal system.
V – ANALYSIS
 Two preliminary remarks are in order.
 First, according to the information provided by counsel for the Attorney General of Canada, the Act has not been constitutionally challenged anywhere else in Canada.  Second, the Attorney General of Canada only argues that the Act was conceived and enacted solely in accordance with the federal criminal law jurisdiction (subsection 91(27) of the Constitution Act, 1867). It is therefore neither necessary nor helpful to examine whether the impugned provisions could be enacted under the federal power to legislate for “peace, order and good government” (section 91 of the Constitution Act, 1867, the national dimensions doctrine).  The Court will first describe the steps of constitutional analysis applicable to this reference within the context of Canadian federalism. It will then outline the parameters of the fields of constitutional jurisdiction relied upon by each side. Finally, it will proceed
29 30 31
with an analysis of the Act and an application of the previously mentioned principles before answering the question put forward in the reference. A. Analysis of the Canadian Constitution and Federalism
 There are two aspects to an analysis of the constitutional validity of a statutory provision in terms of the division of powers set out in the Constitution Act, 1867. First, the pith and substance, or dominant characteristic, of the provision must be determined. It is then necessary to identify the power to which that characteristic is most closely related in order to decide whether the impugned provision falls under the jurisdiction of the level of government that enacted it.32  To determine the pith and substance, or dominant characteristic, of a law or provision, two aspects must be considered: the purpose sought to be achieved by the enacting body its legal effect.33  The purpose of a law or a provision is the goal pursued by the legislator in enacting it. It is frequently set out in the impugned statute or provision itself, but it may also be identified through external documents, such as the report of parliamentary debates or a government publication. To determine the purpose of a statute, it may be useful to identify the problem the legislator was seeking to remedy. Often the context in which a statute is enacted becomes very relevant.34  A consideration of the effect of a statute or provision requires an examination of its practical or legal consequences. In short, it involves determining how the statute will apply and how it affects citizens in their daily lives. The effect of a statute may reveal a purpose that differs from its stated purpose. The legal effect of a statute refers to the manner in which the legislative document as a whole influences the rights and obligations of those who are subject to it.35  Having assessed the pith and substance of the impugned statute or provision, the second step is to determine which power or powers under the Constitution Act, 1867 it relates to.36
33 34 35
Reference re Employment Insurance Act (Can.), s. 22 and 23,  2 S.C.R. 669 at para. 8; Reference re Same-Sex Marriage,  3 S.C.R. 698 at para. 13; Reference re Firearms Act (Can.), supra note 31 at para. 15. Reference re Firearms Act (Can.), supra note 31 at para. 16. Reference re Employment Insurance Act (Can.), ss. 22 and 23, supra note 32 at paras. 15 and 16; Reference re Firearms Act, supra note 31 at para. 17. In Reference re Employment Insurance Act (Can.), ss. 22 and 23, supra note 32 at para. 27, la Deschamps J. points out the importance of considering the effects of the impugned statute or provision, noting that in Saumur v. City of Québec,  2 S.C.R. 299, legislation relating to the administration of streets was held to be unconstitutional because its preponderant effect showed that it was operating as a censorship mechanism; see also Reference re Firearms Act (Can.), supra note 31 at para. 18; R. v. Morgentaler,  3 R.C.S. 463 at 482. Reference re Firearms Act (Can.), supra note 31 at para. 25.
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 The powers are not static, and their content is adjusted in accordance with the evolution of Canadian society “to ensure that Confederation can be adapted to new social realities”37 without requiring continuous amendment of the text. The highest court in the country frequently employs the metaphor of the living tree and urges a “progressive interpretation”38 or a “progressive approach”.39 In short, the jurisdictions attributed by the Constitution Act, 1867 to one level of government or the other are essentially dynamic.  A progressive interpretation cannot, however, be used to justify an encroachment by one level of government on the exclusive jurisdiction of the other.  To deduce the evolution of constitutional powers from the political structure of Canada is a delicate exercise, since that structure will often depend on each person’s view of what is the appropriate balance between federal and provincial powers.40  That being said, the analysis of the constitutional validity of a statute or provision requires keeping in mind certain principles related to the very essence of Canadian federalism, particularly with regard to the sharing of powers between the federal government and the provinces. In Reference re Secession of Quebec,41 the Supreme Court of Canada recalled the basic principles of Canadian federalism:
43. Federalism was a legal response to the underlying political and cultural realities that existed at Confederation and continue to exist today. At Confederation, political leaders told their respective communities that the Canadian union would be able to reconcile diversity with unity. … The federal-provincial division of powers was a legal recognition of the diversity that existed among the initial members of Confederation, and manifested a concern to accommodate that diversity within a single nation by granting significant powers to provincial governments. The Constitution Act, 1867 was an act of nation-building. It was the first step in the transition from colonies separately dependent on the Imperial Parliament for their governance to a unified and independent political state in which different peoples could resolve their disagreements and work together toward common goals and a common interest. Federalism was the political mechanism by which diversity could be reconciled with unity. 52. The principles assist in the interpretation of the text and the delineation of spheres of jurisdiction, the scope of rights and obligations, and the role of our political institutions. Equally important, observance of and respect for these
37 38 39 40 41
Reference re Employment Insurance Act (Can.) ss. 22 and 23, supra note 32 at para. 9. Reference re Same-Sex Marriage, supra note 32 at para. 29. Reference re Employment Insurance Act (Can.) ss. 22 and 23, supra note 32 at para. 9. Ibid. at para. 10.  2 S.C.R. 217 at paras. 43, 52, 56, 58 and 66.
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principles is essential to the ongoing process of constitutional development and evolution of our Constitution as a "living tree", to invoke the famous description in Edwards v. Attorney-General for Canada,  A.C. 124 (P.C.), at p. 136. … 56. In a federal system of government such as ours, political power is shared by two orders of government: the federal government on the one hand, and the provinces on the other. Each is assigned respective spheres of jurisdiction by the Constitution Act, 1867. See, e.g., Liquidators of the Maritime Bank of Canada v. Receiver-General of New Brunswick,  A.C. 437 (P.C.), at pp. 441-42. It is up to the courts "to control the limits of the respective sovereignties": Northern Telecom Canada Ltd. v. Communication Workers of Canada,  1 S.C.R. 733, at p. 741. In interpreting our Constitution, the courts have always been concerned with the federalism principle, inherent in the structure of our constitutional arrangements, which has from the beginning been the lodestar by which the courts have been guided. 58. The principle of federalism recognizes the diversity of the component parts of Confederation, and the autonomy of provincial governments to develop their societies within their respective spheres of jurisdiction. The federal structure of our country also facilitates democratic participation by distributing power to the government thought to be most suited to achieving the particular societal objective having regard to this diversity. The scheme of the Constitution Act, 1867, it was said in Re the Initiative and Referendum Act,  A.C. 935 (P.C.), at p. 942, was not to weld the Provinces into one, nor to subordinate Provincial Governments to a central authority, but to establish a central government in which these Provinces should be represented, entrusted with exclusive authority only in affairs in which they had a common interest. Subject to this each Province was to retain its independence and autonomy and to be directly under the Crown as its head. More recently, in Haig v. Canada, 1993 CanLII 58 (S.C.C.),  2 S.C.R. 995, at p. 1047, the majority of this Court held that differences between provinces "are a rational part of the political reality in the federal process". It was referring to the differential application of federal law in individual provinces, but the point applies more generally. A unanimous Court expressed similar views in R. v. S. (S.), 1990 CanLII 65 (S.C.C.),  2 S.C.R. 254, at pp. 287-88. A unanimous Court expressed similar views in R. v. S. (S.),  2 S.C.R. 254, at pp.287-288. 66. It is, of course, true that democracy expresses the sovereign will of the people. Yet this expression, too, must be taken in the context of the other institutional values we have identified as pertinent to this Reference. The relationship between democracy and federalism means, for example, that in Canada there may be different and equally legitimate majorities in different
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provinces and territories and at the federal level. No one majority is more or less "legitimate" than the others as an expression of democratic opinion, although, of course, the consequences will vary with the subject matter. A federal system of government enables different provinces to pursue policies responsive to the particular concerns and interests of people in that province. At the same time, Canada as a whole is also a democratic community in which citizens construct and achieve goals on a national scale through a federal government acting within the limits of its jurisdiction. The function of federalism is to enable citizens to participate concurrently in different collectivities and to pursue goals at both a provincial and a federal level.
 In Reference re Firearms Act, the Supreme Court of Canada reminds us that the determination of the head of power to which an impugned law or provision relates is not an exact science:
26. The determination of which head of power a particular law falls under is not an exact science. In a federal system, each level of government can expect to have its jurisdiction affected by the other to a certain degree. As Dickson C.J. stated in General Motors of Canada Ltd. v. City National Leasing,  1 S.C.R. 641, at p. 669, “overlap of legislation is to be expected and accommodated in a federal state”. Laws mainly in relation to the jurisdiction of one level of government may overflow into, or have “incidental effects” upon, the jurisdiction of the other level of government. It is a matter of balance and of federalism: no one level of government is isolated from the other, nor can it usurp the functions of the other.
 The rules governing the division of constitutional powers were not intended to create with precision a perfectly logical system and in so doing to proscribe any overflow or incidental impact of a law falling within the jurisdiction of one level of government on the jurisdiction of the other governmental level.42 The fact that a statute or provision encroaches on a matter that is not within the jurisdiction of the enacting body does not necessarily justify concluding that it is invalid; the court must determine the constitutional validity of the law or provision by asking, on the one hand, whether it is part of a valid legislative scheme and, on the other, whether it is sufficiently integrated with that scheme.43
Fédération des producteurs de volailles du Québec v. Pelland,  1 S.C.R. 292 at para. 31; Multiple Access Ltd. v. McCutcheon,  2 S.C.R. 161 at 180-181. Reference re Employment Insurance Act (Can.), ss. 22 and 23, supra note 32 at para. 8; Kitkatla Band v. British Columbia (Minister of Small Business, Toursim and Culture),  2 S.C.R. 146 at para. 58; Global Securities Corp. v. British Columbia (Securities Commission),  1 S.C.R. 494; General Motors of Canada Ltd. v. City National Leasing,  1 S.C.R. 641.
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 The classes set out in the Constitution Act, 1867 are not “watertight compartments44”. Both levels of government may therefore legislate on the same subject, each within its own area of exclusive jurisdiction. This is the basis of the double aspect doctrine, whereby the power of one level of government to legislate in relation to one aspect of a matter takes nothing away from the power of the other level to control another aspect within its own jurisdiction.45  Professor Hogg summarizes the double aspect doctrine in the following terms :46
One might well ask why a law which presents both federal and provincial characteristics should not be treated as competent to both the federal Parliament and the provincial Legislatures. At first glance, such a result seems inconsistent with the stipulation in ss. 91 and 92 that each list of classes of subject is assigned "exclusively" to either the Parliament or the Legislatures. But the Privy Council early announced that "subjects which in one aspect and for one purpose fall with s. 92, may in another aspect and for another purpose fall within 91. This doctrine has become known as the "double aspect" doctrine. … In other words, the double aspect doctrine is the course of judicial restraint. When the court finds that the federal and provincial characteristics of a law are roughly equal in importance, then the conclusion is that laws of that kind may be enacted by either the Parliament or a Legislature.
 It should also be pointed out that the role of the court asked to determine the constitutional validity of a statute in terms of the division of powers between the federal and the provincial legislatives in no way involves assessing the merit, wisdom, appropriateness, or effectiveness of the statute. This task falls to Parliament and the provincial legislatures, each according to its respective constitutional jurisdiction.47  Finally, the presumption of constitutional validity means that the burden falls on the Government of Quebec, as the party challenging the Act, to demonstrate that the impugned provisions do not fall within federal jurisdiction.48
45 46 47
Reference re Employment Insurance Act (Can.), ss. 22 and 23, supra note 32 at para. 8; Hodge v. The Queen (1883), 9 App. Cas. 117 (P.C.) at 130; Citizens Insurance Co. of Canada v. Parsons (1881), 7 App. Cas. 96 (P.C.) and 107-108 and 116-117. Reference re Employment Insurance Act (Can.) ss. 22 and 23, supra note 32 at para. 8. Peter Hogg, Constitutional Law of Canada, vol. 1 (Loose-Leaf Edition) (Toronto: Carswell, 2001) at 15-8. Quebec (Minister of Justice) v. Canada (Minister of Justice),  R.J.Q. 1118 at 1135 (Reference re Bill C-7 on the youth criminal justice system); R. v. Malmo-Levine; R. v. Caine,  3 R.C.S. 571 at para. 5. Nova Scotia Board of Censors v. McNeil,  2 S.C.R. 662.
500-09-015177-041 B. The Fields of Jurisdiction Involved
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 Both levels of government rely on the subject matter of health, one to justify the validity of the Act, the other to establish its constitutional invalidity.  To the Attorney General of Quebec, health is a subject matter which, while not specifically attributed, relates to four headings of provincial jurisdiction set out in sections 92 and 93 of the Constitution Act, 1867.  The Attorney General of Canada, on the other hand, is of the view that the purpose of the Act is to safeguard health, that this is a legitimate and recognized criminal law purpose, and that this subject matter falls within its exclusive jurisdiction under section 91 of the Constitution Act, 1867.  The Court will now consider the federal and provincial headings of power relating to health and criminal law under the Constitution Act, 1867 and in light of the relevant case law. Health  We already know that health is not specifically enumerated as a subject matter in the Constitution Act, 1867. It is a broad and indeterminate area, the contours of which, in terms of constitutional jurisdiction, are not always easy to define.  Traditionally it is the provinces that have legislated in health matters. This has not prevented Parliament from expressing itself in such matters from time to time, however, and it has done so frequently, although not exclusively, through its jurisdiction in criminal matters.  The analysis will be done in three stages: the traditional jurisdiction of the provinces, the jurisdiction of Parliament, and recent developments in provincial jurisdiction. a) Traditional jurisdiction of the provinces
 The jurisdiction of the provinces in matters of health care and any corollary activities flows from four headings of power set out in sections 92 and 93 of the Constitution Act, 1867.  Subsection 92(7) of the Constitution Act, 1867 attributes exclusive responsibility to the provinces for the establishment, maintenance and management of health institutions, namely, hospitals, asylums, charities and eleemosynary institutions, other than marine hospitals. Subsections 92(13) and (16), taken together, give the provinces jurisdiction over the civil aspects of medical practice and the doctor-patient relationship,
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and have been recognized as having the power to establish and manage hospital systems, health insurance, and hospitalization insurance.49  Section 93 of the Constitution Act, 1867 grants the provinces exclusive jurisdiction in relation to education, without restriction with regard to the nature and scope of this matter in Quebec.50  In Canadian Egg Marketing Agency v. Richardson,51 the Supreme Court confirms not only that the provinces have the power to determine the qualifications for the practice of a profession, but also that they have the necessary jurisdiction to regulate all professions.  When the subject matter of education, also attributed to the provinces under section 93, is added to those in subsections 92(7), (13) and (16), it becomes clear that the jurisdiction of the provinces in health matters is extremely broad. It includes the regulation and management of professions related to medicine and health sciences, medical research, faculties of medicine, all types of medical institutions, as well as the provision of hygiene and care to the handicapped and people with mental health disabilities.52  This summary outline of provincial jurisdiction in health matters is sufficient, since the Attorney General of Canada does not really contest the jurisdiction of its partners in confederation. Similarly, the Attorney General of Quebec does not claim that Parliament can never legislate on matters relating to health. In other words, there is no constitutional monopoly on health in Canada. b) The Jurisdiction of Parliament in Health Matters
 It is clear that of the day-to-day activities and concerns relating to health fall within provincial jurisdiction. Parliament may intervene in this area, and has frequently done so, under one of three headings of power: its residual power to make laws for peace, order and good government, its general spending power53, and its criminal jurisdiction. Let us briefly examine each of these powers.
50 51 52
Re Employment and Social Insurance Act,  S.C.R. 427; The Canadian Indemnity Company v. British Columbia (A.G.),  2 S.C.R. 504; Eldridge v. British Columbia (Attorney General),  3 S.C.R. 624. McKinney v. University of Guelph,  3 S.C.R. 229; Reference re Education Act (Quebec),  2 S.C.R. 511; Potter v. Quebec (Attorney General),  R.J.Q. 2823 (C.A.).  3 S.C.R. 157 at para. 78; see also R. v. Morgentaler, supra note 35. Regarding the regulation of professions, see: Law Society of British Columbia v. Mangat,  3 S.C.R. 113 at para. 38; Gérald-A. Beaudoin, La constitution du Canada, 3d ed. (Montreal: Wilson & Lafleur, 2004) at 644. Eldridge v. British Columbia (Attorney General), supra note 49; Chaoulli v. Quebec (Attorney General),  1 S.C.R. 791 at para. 16.
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 In the present matter, the Attorney General of Canada has not relied on the introductory paragraph of section 91 of the Constitution Act, 1867, which grants it the power to “make Laws for the Peace, Order, and Good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces”. He therefore recognizes that the Act does not fall within this general power and does not raise the national dimensions doctrine or the emergency doctrine.  In fact this residuary federal power54 has two aspects: national emergency and national security or interest. Only the individual safety of the participants in assisted reproduction and the children that result from it require protection. As for an emergency, if there was one at the time of the Baird Commission, it is no longer present, since fifteen years have passed between the first intervention at the House of Commons on medically assisted reproduction and the enactment of the Act.  These observations are important, as they enable us to steer clear of the temptation to legitimize the Act out of a desire for uniformity across the country or a fear of the commercialization of human reproductive material on a national or interprovincial level.  Before saying that a matter is of national interest, it must transcend the power of each province.55 Such a matter “must have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern and a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution…”.56  If the Attorney General of Canada intends to legitimize its enactment on the basis of the national dimension of the problem it addresses, it may not also rely on its criminal law jurisdiction, hoping thereby to sidestep the requirements for exercising its residuary power to legislate for peace, order, and good government.  The federal spending power has enabled Parliament to play an important role in health care in the country. It has set national standards in provincial medical insurance programs in order to promote comparable access to health care for all Canadians. Under the Canada Health Act,57 the federal government makes conditional contributions to finance provincial medical insurance programs. As pointed out by LaForest J. in
54 55 56 57
Henri Brun & Guy Tremblay, Droit constitutionnel, 4th ed. (Cowansville, Qc.: Yvon Blais, 2001) at 550. Schneider v. The Queen,  2 S.C.R. 112 at 131. R. v. Crown Zellerbach Canada Ltd.,  1 S.C.R. 401 at 432. See also R. v. Hydro-Québec, supra note 29 at para. 64 et seq. R.S.Q. 1985, c. C-6.
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Eldridge,58 this method was validated by the Supreme Court in Reference Re Canada Assistance Plan.59  Parliament may also legislate in health matters through its exclusive criminal law jurisdiction. The case law refers to several such instances, which will be examined by the Court in its consideration of the criminal law as a constitutional heading of power. c) Recent evolution in provincial jurisdiction in health matters
 Recent Supreme Court judgments uphold the general jurisdiction of provinces in matters relating to health.  In Schneider v. The Queen,60 the highest court in the country describes the boundary between the heads of power of health and the criminal law. As a constitutional matter, health may be the subject of federal or provincial legislation, depending on the nature and scope of the issue addressed. In that case, the law under consideration dealt with narcotics, a subject that is generally regulated by Parliament. The Supreme Court of Canada recognized, however, that the medical treatment of addiction falls within the provincial jurisdiction of health under section 92(16) of the Constitution Act, 1867. Addiction is not a crime but a psychological state that requires medical and social intervention from the province;61 the Supreme Court therefore found that the British Columbia Heroin Treatment Act was intra vires.  About ten years later, the general jurisdiction of the provinces in health matters was once again confirmed by the Supreme Court of Canada in Supreme Court of Canada in R. v. Morgentaler:
The provinces have general legislative jurisdiction over hospitals by virtue of s. 92(7) of the Constitution Act, 1867 and over the medical profession and the practice of medicine by virtue of ss. 92(13) and (16). Section 92(16) also gives then general jurisdiction over health matters within the province: Schneider v. The Queen,  2 S.C.R. 112 at 137. … In addition, there is no dispute that the heads of s. 92 invoked by the appellant confer on the provinces jurisdiction over health care in the province generally, including matters of cost and efficiency, the nature of the health care delivery system, and privatization of the provision of medical services.62
58 59 60 61 62
Eldridge v. British Columbia (Attorney General), supra note 53 at para. 25.  2 S.C.R. 525 at 567. Supra note 55. Ibid. at 137. R. v. Morgentaler, supra note 35 at 490-491.
500-09-015177-041  In Bell Canada v. Quebec (CSST),63 Beetz J. wrote as follows:
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General legislative jurisdiction over health belongs to the provinces, subject to the limited jurisdiction of Parliament ancillary to the powers expressly conferred by s. 91 of the Constitution Act, 1867 or the emergency power relating to the peace, order and good government of Canada: Schneider v. The Queen,  2 S.C.R. 112, at p. 137, reasons of Dickson J.—as he then was—writing for seven judges of this Court. This jurisdiction has historically been seen as resting with the provinces under s. 92(16) of the Constitution Act, 1867, "Generally all Matters of a merely local or private Nature in the Province", although the considerable dimensions of this jurisdiction were probably not foreseen in 1867.
 More recently, the Supreme Court of Canada affirmed provincial paramountcy in legislation relating to health in Chaoulli v. Quebec (Attorney General)64 and Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services).65 In Chaoulli, Deschamps J. speaks of the scope of jurisdiction of the provinces, recognizing that the provision of health care is an integral part of the provincial legislative corpus:
17. …The Canada Health Act is therefore only a general framework that leaves considerable latitude to the provinces.… 18. The basis for provincial jurisdiction over health care is more clear. The Constitution act, 1867 provides that the provinces have jurisdiction over matters of a local or private nature (s. 92 (16)), property and civil rights (s. 92(13)), and the establishment of hospitals, asylums, charities and eleemosynary institutions (s. 92(7)). In Quebec, health care services are delivered pursuant to the Act respecting health services and social services, R.S.Q., c. S-4.2 (“AHSSS”). The AHSSS regulates the institutions were health care services are delivered and sets out the principles that guide the delivery of such services in Quebec. For example, under s. 5 AHSSS, Quebeckers “are entitled to receive, with continuity and in a personalized and safe manner, health services and social services which are scientifically, humanly and socially appropriate”.66
 To sum up, the most recent judgments of the Supreme Court of Canada confirm the general provincial jurisdiction over all standards governing the provision of health care, the establishment, maintenance, and management of institutions that offer such care, and the mechanisms for the training, inspection and verification of the skills of health care professionals.
63 64 65 66
 1 S.C.R. 749 at 761. Supra note 53.  1 S.C.R. 326 at paras. 31-36. Supra note 53.
500-09-015177-041 Criminal Law
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 Although not unlimited, Parliament’s criminal law power “is a broad area of federal jurisdiction”, which “stands on its own as federal jurisdiction”.67  In R.J.R.-MacDonald Inc. v. Canada (A.G.),68 the Supreme Court recalled that this power is “plenary in nature” and that the Court “has always defined its scope broadly”, since s. 91(27) of the Constitution Act, 1867 is to be read “as assigning to Parliament exclusive jurisdiction over criminal law in the widest sense of the term".  Parliament’s criminal law jurisdiction is expressed primarily, but not exclusively, through the Criminal Code; the Food and Drugs Act,69 the Hazardous Products Act,70 the Act respecting the Lord’s Day71 and the Tobacco Act72 are examples of a valid exercise of jurisdiction in criminal matters.  Legislation enacted pursuant to the exclusive federal criminal law power must be inherently punitive, because this is the fundamental nature of criminal law.  The Supreme Court long ago determined what constitutes a crime:73
A crime is an act which the law, with appropriate penal sanctions, forbids; but as prohibitions are not enacted in a vacuum, we can properly look for some evil or injurious or undesirable effect upon the public against which the law is directed. That effect may be in relation to social, economic or political interests; and the legislature has had in mind to suppress the evil or to safeguard the interest threatened.74
This definition has been reiterated in the case law on many occasions.75
 Thus, a crime is an act that is prohibited because it constitutes an evil or has an injurious or undesirable effect on the public. The prohibition exists to prevent the evil or to safeguard the interest threatened by the injurious or undesirable effect of the action.
67 68 69 70 71 72 73 74
Reference re Firearms Act (Can.), supra note 31 at 803. Supra note 30 at 240. R.S.C. 1927, c. 76. R.S.C. 1985, c. H-3. R.S.C. 1952, c. 171. S.C. 1997, c. 13. Reference as to the Validity of Section 5(A) of the Dairy Industry Act,  S.C.R. 1 at 49. The original French version of this Court of Appeal judgment reproduced the translation of this quotation that appeared in the judgment of the Supreme Court of Canada in R.J.R.-Macdonald, supra note 30 at para. 28. The present English translation uses the original English version of this quotation. Labatt Breweries of Canada Ltd. v. Attorney General of Canada,  1 S.C.R. 914; R.J.RMacDonald Inc. v. Canada (Attorney General), supra note 30; R. v. Hydro-Québec, supra note 29; R. v. Malmo-Levine, supra note 47.
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It must have a legitimate public purpose relating to the criminal law. Peace, order, security, morality, and health are common criminal law objectives.76  The following three criteria have been consistently applied when determining whether an action is criminal in nature: (a) the existence of an offence (b) that has an objective criminal public purpose (c) to which a penalty has consistently been attached.77  Sometimes these are exceptions to prohibitions and, if necessary, detailed regulations defining and circumscribing the exceptions. Introducing a scheme of exceptions into a law that is ostensibly within the field of criminal law is not necessarily a roundabout way of regulating a matter of provincial jurisdiction. If the law is to preserve its criminal nature, however, the exceptions must in some way remain incidental to the prohibition, and do no more than define or reduce its scope. The basic intention of the act must still be to suppress an “evil” or an “injurious or undesirable effect”. 78  A prohibition is not interchangeable with a regulation. Legislation validly enacted by Parliament under its criminal law jurisdiction may include a regulatory scheme without losing its criminal character, but a regulatory law that prohibits specific behaviour and imposes a penalty is not necessarily criminal in nature. In Hydro-Québec, supra, Lamer and Iacobucci JJ., although dissenting, state that a law does not become a criminal statute merely because it contains a prohibition to which a penalty is attached. The analysis must go deeper:
46. The fact that a statute contains a prohibition and a penalty does not necessarily mean that statute is criminal in nature. Regulatory statutes commonly prohibit violations of their provisions or regulations promulgated under them and provide penal sanctions to be applied if violations do, in fact, occur. Any regulatory statute that lacked such prohibitions and penalties would be meaningless. However, as La Forest J. himself recognized in Thomson Newspapers Ltd. v. Canada (Director f Investigation and Research, Restrictive Trade Practices Commission),  1 S.C.R. 425, at pp. 508-17, and in R. v. McKinlay Transport Ltd.,  1 S.C.R. 627, at p. 650, the penalties that are provided in a regulatory context serve “pragmatic” or “instrumental” purpose and do not transform the legislation into criminal law. (Also see Wetmore, supra, Scowby, supra, and Knox Contracting, supra.) In environmental law, as in competition law or income tax law, compliance cannot always be ensured by the usual regulatory enforcement techniques, such as periodic or unannounced
See in particular Reference as to the Validity of Section 5(A) of the Dairy Industry Act, supra note 73; R. v. Hydro-Québec, supra note 29; R.J.R-MacDonald Inc. v. Canada (Attorney General), supra note 30. See in particular Labatt Breweries of Canada Ltd. v. Attorney General of Canada, supra note 75; R. v. Wetmore,  2 S.C.R. 284; R. v. Hydro-Québec, supra note 29; R.J.R-MacDonald Inc. v. Canada (Attorney General), supra note 30; R. v. Malmo-Levine, supra note 47. R. v. Furtney,  3 S.C.R. 89.
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inspections. Hence, in order to ensure that legal standards are being met, a strong deterrent, the threat of penal sanctions, is necessary. La Forest J. relied on this rationale in concluding that the penal sanctions contained in the Competition Act (in Thomson Newspapers) and the Income Tax Act (in McKinlay Transport) did not affect the characterization of those statutes as regulatory in nature for purposes of s. 8 of the Canadian Charter of Rights and Freedoms. 47. At the same time, however, a criminal law does not have to consist solely of blanket prohibitions. It may, as La Forest J. noted in RJR-MacDonald, supra, at pp. 263-64, “validly contain exemptions for certain conduct without losing its status as criminal law”. See also Lord’s Day Alliance of Canada v. Attorney General of British Columbia,  S.C.R. 497; Morgentaler, supra; R. v. Furtney,  3 S.C.R. 89. These exemptions may have the effect of establishing “regulatory” schemes which confer a measure of discretionary authority without changing the character of the law, as was the case in RJRMacDonald.79
 A prohibition is not equivalent to a regulation. Courts must consider the scope of a regulatory scheme as well as the context within which it applies to determine its true nature. For a regulatory scheme to be recognized as a constitutionally valid criminal law, it is not sufficient for it to be characterized as an exemption or derogation. It must be criminal in nature and apply in such a context.80  The exemption must merely permit derogation from the general prohibition and not constitute the basis of the statute in question. Accordingly, the exemption must be incidental to the prohibition and not the contrary. That is the difference between a criminal law and a regulatory statute.81  The criminal nature of a law is not necessarily compromised by the creation of a prohibition with exemptions when the exemption scheme helps define the offence or its scope. In such a case, the exemptions serve “to delineate the logical and practical limits to Parliament’s exercise of the criminal law …”.82 This was the case in Morgentaler, Furtney, and R.J.R.-Macdonald, supra, in which the impugned laws were found to be criminal in nature despite the existence of a scheme of exceptions permitting the prohibited behaviour under certain conditions.  Although recognized and desirable in a parliamentary system, the legislative drafting technique that combines prohibitions with exemptions should not serve “to confuse, or detract from, the category of acts Parliament has validly criminalized under
79 80 81 82
R. v. Hydro-Québec, supra note 29. Ibid. at para. 48. Ibid., paragr. 52-53. R.J.R-MacDonald Inc. v. Canada (Attorney General), supra note 30 at para. 56. See also R. v. Morgentaler, supra note 35; R. v. Furtney, supra note 78.
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the Act”.83 It is well established that only Parliament has the power to define a crime, although there are many drafting techniques at its disposal to do so.84 Moreover, if the technique of regulation is selected, it must serve in “defining the scope of a criminal prohibition”.85 If the regulation serves another purpose, the criminal law power becomes a pretext for encroaching on a sphere of activity that does not fall within Parliament’s jurisdiction.  Parliament’s plenary power in criminal law therefore does not give it full discretion to enact detailed regulations in any matter,86 as this would not “permit adequate breathing room for the exercise of jurisdiction by both levels of government”.87 Finally, the complexity of a law does not, on its face, detract from its criminal nature.88  Along the same lines, equivalency provisions are another indication that a law is regulatory in nature. This question was considered by the dissenting judges in HydroQuébec, supra. In their view, this type of provision confirms the regulatory nature of a law because “[p]rovinces do not have the jurisdiction to enact criminal legislation, nor can the federal government delegate such jurisdiction to them”.89 Any equivalent law enacted by a province must be regulatory; there can be no equivalent criminal law because the provinces lack the power to legislate in this area.  In short, the existence of a prohibition with a penalty that has a legitimate public purpose or a usual criminal law objective is a prima facie indication that the law is criminal in nature. However, it is still necessary, indeed essential, to analyze the nature, scope, and context of the impugned provisions to properly characterize them.  Particularly where only certain provisions of a statute are contested, as in the present case, the true nature and scope of the statute must be analyzed in light of its double context: the overall context, which is not impugned in its entirety, and the specific context, particular to the provisions in question.  In the present case, the double aspect is particularly important, since sections 5, 6, and 7 of the Act are undeniably examples of a universally desired criminal law initiative to combat an evil. The provisions prohibit certain activities deemed to be deviant, have a constitutionally legitimate purpose, and have sanctions attached. When the time comes to consider whether the other provisions of the Act also have criminal law characteristics, the specific context of these other provisions and their determined objectives will be the decisive factors.
83 84 85 86 87 88 89
RJR-MacDonald v. Canada (A.G.), supra note 30 at para. 56. R. v. Hydro-Québec, supra, note 29 at para. 150. Ibid. at para. 151. Labatt Breweries of Canada Ltd. v. Attorney General du Canada, supra note 75 at 934. R. v. Hydro-Québec, supra, note 29 at para. 153. Reference re Firearms Act (Can.), supra note 31 at para. 37. R. v. Hydro-Québec, supra note 29 at para. 57.
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 When assessing the nature of the impugned provision, all of these precautions are necessary to respect the initial federal pact and to ensure that both Parliament and the provincial legislatures retain their respective legislative sovereignty, while also responding to the many challenges that face us today. The cooperation of both levels of government—equal but different partners in confederation—remains a desirable objective in the effort to fulfil the common interests of all Canadians.  Such cooperation is compromised when the effect of a criminal law is to cause a “colourable” encroachment on an area of provincial jurisdiction. In R.J.R.-MacDonald, LaForest J. notes that it is not sufficient for a statute to have the three traditional characteristics of a criminal law to be valid:
32. … The scope of the federal power to create criminal legislation with respect to health matters is broad, and is circumscribed only by the requirements that the legislation must contain a prohibition accompanied by a penal sanction and must be directed at a legitimate public health evil. If a given piece of federal legislation contains these features, and if that legislation is not otherwise a "colourable" intrusion upon provincial jurisdiction, then it is valid as criminal law; see Scowby, supra, at pp. 237-38.90
 To summarize, health is a shared jurisdiction; provincial jurisdiction is paramount, while the exclusive federal criminal law jurisdiction is broad and undeniably constitutes one of the main branches of the living tree that is the Canadian constitution. The two levels of government, who share the same concern for protecting the health of Canadians, must cooperate, respect each other’s jurisdiction over a very important subject matter, accept that there may be parallel legislation,91 and avoid colourable encroachments. Quite the constitutional undertaking!  Now it remains to be seen whether the impugned provisions are valid exercises of the criminal law power, whether they seek to prevent crime in the area of medically assisted reproduction, or whether they constitute a regulation of the medical practice. C. Analysis of the Act and Application of the Principles
 The analysis will be carried out in two stages, in accordance with the case law: first, the pith and substance of the impugned provisions will be determined and second, the provisions will be characterized in light of the division of powers between Parliament and the legislatures.
R.J.R-MacDonald Inc. v. Canada (Attorney General), supra note 30; See also R. v. Hydro-Québec, supra note 29 at para. 36 et seq; R. v. Malmo-Levine, supra note 47 at para. 209. Reference re Employment Insurance Act, supra note 32 at para. 8, where the following decisions are cited: Kitkatla Band v. British Columbia (Minister of Small Business, Toursim and Culture),  2 S.C.R. 146 at para. 58; Global Securities Corp. v. British Columbia (Securities Commission),  1 S.C.R. 494; General Motors of Canada Ltd. v. City National Leasing,  1 S.C.R. 641.
500-09-015177-041 The Context of the Legislative Intervention
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 The Act is the legislative response to the recommendations in the Baird Commission report. In their final report, filed in November 1993 and entitled Proceed With Care, the commissioners made two fundamental recommendations. The first calls for the enactment of laws criminalizing certain totally unacceptable activities such as human cloning, the creation of animal-human hybrids, and the commercialization of reproduction.92  The second recommendation calls for the creation of a National Reproductive Technologies Commission to regulate all clinical activities and research in this area. It would be a “new, federally funded, independent body…established by Parliament to assume comprehensive regulatory responsibility in this area”.93 The Commission adds:
A National Commission would permit the creation and implementation of coherent, comprehensive, and effective nation-wide standards and monitoring devices. This is in contrast to what could be realistically be achieved through piecemeal federal reform on a department-by-department basis, through individual responses by each province and territory, or through non-governmental or self-regulatory initiatives.94
 While insisting on the urgency of creating such an organization for “comprehensive action at the national level”, the Commission emphasizes that the provinces and professional bodies may in the meantime intervene and “take immediate steps to control the provision and proliferation of reproductive technologies in the health care system through the evidence-based approach we recommend”.95 The commissioners believe, however, that provincial action should be temporary; in their view, it constitutes the lesser of two evils and will perpetuate the fragmentation of standards applicable across the country. On this matter, their opinion is clearly expressed in their summary, contained in the introduction to the report:
But all of these [measures taken by the provinces and professional bodies] are only stop-gap measures. Government should act as the guardian of the public interest to set limits and to regulate the use of new reproductive technologies. No other body is sufficiently broadly based or has the mandate to do this. It is important that we put in place now the structures and an open, broad process to enable Canadians to deal with these growing dilemmas, dilemmas that affect individual lives and what kind of a society we are. How we use reproductive technology is not at root a medical matter, but a social matter that reaches into law, prevention, education, commerce, science, and research policy. Matters so
92 93 94 95
Supra note 6 at xxxii. Ibid. at 112. Ibid. at 113. Ibid. at xxxvi.
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important to women and children, in terms not only of their health but of their legal status and how they are viewed, cannot differ from province to province. The field is growing rapidly and Canadians want the government to act. There is clearly precedent—radio and television broadcasting is regulated and monitored through a licensing agency for the Canadian public interest. The area of reproductive technology use is at least as important to us as individuals and as a society.96
 In short, the Baird Commission recommended a formal and complete prohibition of certain practices, while also recognizing that others are desirable because they promote fertility and, consequently, the creation of new families. The Commission emphasized that these new families should be created within a well-defined framework, one that is ethical and that takes the safety of men, women and children into account. In its view, the only way to achieve this objective is to establish a commission or agency that will follow the parameters, guidelines, and regulations defined by the federal government and applicable to the entire Canadian population.  The Baird Commission recommended regulating activities relating to infertility research and treatment. According to statistics, in 1991-92, 8.5% of couples suffered from infertility.97 Frequently seen as a female problem, infertility also affects men, and in many cases abnormalities are found in both partners. Dr. François Bissonnette, expert for the Attorney General of Quebec, states his views that not all the causes of infertility are known, although in many cases it can be attributed to anatomical or functional abnormalities in one of the partners. He describes infertility as a pathology, and considers it to be [TRANSLATION] “a state that affects health”. In his view, [TRANSLATION] “men and women who are experiencing fertility problems deal with extreme psychological distress, including lowered self-esteem, isolation, loss of control, sexual problems, and depression”.98 This diagnosis and characterization of infertility are entirely shared by Dr. Jeff Nisker, expert for the Attorney General of Canada.99 Purpose and Effects of the Act  The Act, a part of which is targeted in the present reference, is structured in accordance with the proposals of the Baird Commission and follows its recommendations faithfully. It is divided into two main parts: to use the terms used in the Act itself, the first lists prohibited activities, which are unacceptable at all times, and the second lists the controlled activities.  With respect to everything that is not subject to a total prohibition, the Act constitutes a complete code governing all clinical and research activities relating to
96 97 98 99
Ibid. at xxvi. Expert report of Dr. François Bissonnette, Schedules to vol. XXIII at 8621. Ibid. Expert report of Dr. Jeff Nisker, Schedules to vol. XXIV at 9003-9004.
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assisted reproduction. In fact Parliament first of all empowers the government to regulate more than 25 areas of activity relating to assisted reproduction. These include standards relating to the qualification and licensing of materials, facilities, and the persons engaged in these controlled activities, as well as the form of consent to be given by the donor of human reproductive material. It then creates the Agency, on which it confers the double mandate of qualifying and licensing establishments and persons involved in assisted reproduction activities in compliance with the regulations, and of overseeing the application of the Act. To fulfil this responsibility, the Agency is attributed broad powers of control, inspection, and search and seizure. It is also given the responsibility of establishing and maintaining mandatory registries of the medical information of donors of human reproductive material and in vitro embryos, the persons undergoing a reproductive technology procedure, and the children born of such technology. The Agency is also responsible for issuing licences to hospitals, clinics, research centres, and persons who perform controlled activities. Finally, the Act sets out the government’s power to declare the regulations enacted by a province equivalent to those it has itself enacted.  This short and simplified summary of the Act reveals the legislative intent to cover the entire field of assisted reproduction, with respect to both clinical practice and research. In this respect, the Act may be characterized as comprehensive and exhaustive legislation on the subject, just as the Baird Commission wished.  Providing infertile couples with the opportunity to have children—and on a broader social level, reducing the occurrence of infertility—is a healthy, desired, and desirable objective. Infertility treatments can take various forms, including in vitro fertilization and donor insemination. Although exceptional,100 a statement by Health Canada in 1999 indicates that the general population considers these procedures to be part of established medicine.101 Similarly, Canadian society accepts and approves of genetic research, while also recognizing the need for regulations to circumscribe these activities and ensure that they are exercised ethically and in safe environments. In short, the Act seeks to safeguard health and ensure respect for the common values of Canadian society. The Pith and Substance of the Act  Although Parliament may legislate in matters relating to health when this aspect is incidental to one of its exclusive jurisdictions, general jurisdiction over this subject matter belongs to the provincial legislatures. This is explained above.  The Attorney General of Canada argues that the Act was validly enacted under its criminal law jurisdiction under section 91(27) of the Constitution Act, 1867. We have
According to the expert Bissonnette, “most cases of infertility (85 to 90%) are treated with standard therapy such as drugs or surgery”. Report of the expert Bissonnette, Schedules to vol. XXIII at 8621. Health Canada, Reproductive and Genetic Technologies, an Overview (Ottawa, 1999) at 3-5.
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seen that this power, however broad, is not unlimited. To fall within this jurisdiction a law must meet the following three conditions: it must have a valid criminal law purpose, it must contain a prohibition, and there must be a penalty attached. (a) Legitimate criminal law purpose
 It is worth recalling certain previously established principles. Parliament may define what it considers to be an “evil” that must be repressed in the best interests of society. This must not, however, be used as a way to indirectly legislate in an area where it does not have jurisdiction. While the safeguarding of public health may be a criminal law matter, since the early years of Confederation, health has generally been seen to fall within provincial jurisdiction.  How do these principles apply to the Act?  Not only is assisted reproduction legal, it is also desirable and sought-after, so much so, in fact, that the Baird Commission and Mr. Nisker, expert for the Attorney General of Canada, recommended that it be covered by health insurance in Canada. The objective invoked as a justification for creating a criminal law framework for assisted reproduction is the safeguarding of health and compliance with ethical rules. Thus, Parliament’s objective is not to prohibit wrongful acts—in other words, an “evil”— but to ensure that the desired and encouraged activity is carried out properly.  Appearing before the Senate Committee studying Bill C-6 on February 18, 2004, Health Minister Pierre Pettigrew noted both the importance of defining the activities that Canadians deem to be acceptable and the need to regulate assisted reproduction. He stated:
For example, as things stand today, nothing in Canadian law prohibits the cloning of a human being. … So without further delay, the time has come to be bold and take action in this area. We need to determine once and for all whichactivities Canadians find acceptable, and which they are totally opposed to and consider deserving of criminal penalties. … This long-awaited bill has three main goals: to protect Canadians using assisted human reproduction to help them build a family, so that their health and safety are not compromised; to prohibit unacceptable practices such as human cloning; and to ensure that research related to assisted human reproduction, which may help find treatments for infertility and serious deceases [sic], takes place within a regulated environment. This bill also provides for the creation of the Assisted
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Human Reproduction Agency of Canada, which will have a number of important tasks.102
 Thus, when the Minister tabled his bill he drew attention to its criminal aspect only in respect of acts or activities that are unacceptable to Canadian society— essentially, the “evil” to be prevented. Referring to the impugned sections of the Act, the true purpose of which is to prohibit the improper practice of desired activities, the expert Nisker summarizes the objectives sought in the following terms:
In summary, the Assisted Human Reproduction Act, based on 15 years of development, including consultations with practitioners, scientists, and partners at great expense of the time of many Canadians and financial resources of Health Canada has provided a framework for clinical practise that are scientifically proven, generally safe and in the best person concerned of Canadian women/couples. The Act aims at protecting women who undergo assisted reproduction practices as well as children who are born as the result of these practices. The Assisted Human Reproduction Agency could monitor the record-keeping and reporting of health complications of women, such as ovarian hyperstimulation syndrome, and surgical problems; as well as health problems of children, such as blindness and cognitive impairment due to being part of a multiple gestation.103
 It is certainly reasonable to state that assisted reproductive procedures and research should be legislatively circumscribed. Indeed, these are not the only activities in such a situation. Many other medical procedures and research activities are equally delicate and pose a significant risk to the patient or a danger to researchers and the public. They are therefore regulated or controlled by rigorous scientific protocol and may only be undertaken if and when the patient has received all the relevant information and has given his or her informed consent. Professional organizations and governments are usually responsible for creating rules of conduct and assigning persons or bodies to control and supervise the hospitals, clinics, and laboratories within their jurisdiction.104  Admittedly, assisted reproduction has not been the subject of legislation in any of the provinces and territories except for Quebec, which has proposed its own law. Nevertheless, the general scheme governing the exercise of medical professions, practice and research, the keeping and management of medical records, and the requirement for informed consent to medical treatment and research is applicable. The [TRANSLATION] Table presenting the main legislative and regulatory provisions and
102 103 104
Canada, Proceedings of the Standing Senate Committee on Social Affairs, Science and Technology, vol. 1 (18 February 2004) at 2 (Pierre Pettigrew). Supra note 99 at 8996. On this subject, see the expert report of Mtre Bartha Maria Knoppers, Schedule to vol. XXIII at 8516 et seq. and the [TRANSLATION] Table presenting the main legislative and regulatory provisions and common law judgments applicable in the area of health in Canadian provinces and territories, excepting Quebec, Schedules to vol. XXVI at 9206 et seq.
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common law judgments applicable in the area of health in Canadian provinces and territories, excepting Quebec which has been entered in the record shows that the other provincial and territorial governments are concerned with and oversee activities relating to assisted reproduction. As for the issues relating to filiation and surrogate mother contracts, the taking of specimens, and the removal of tissue, etc., they are also subject to regulation, legislation, or judicial decisions. More particularly, in Quebec, the Civil Code contains the rules governing consent to treatment, experiments, the removal of organs, tissue, and body-parts, and the filiation of children born of assisted procreation.105  This means that clinical and research activities relating to assisted reproduction are not carried out in a vacuum but are circumscribed to varying degrees in all provinces and territories of the country.  Thus, assisted reproduction is not an “evil” but a desirable activity, the practice of which is, at worst, circumscribed by special statutes or more general laws dealing with health and the practice of medicine, as are other delicate or dangerous medical activities.  The purpose of the control authorized by the Act is made clear in the Baird Commission report: to create identical standards all over the country. This approach is justified by the importance of the issues and the need for consistent rules, standardized across all of Canada. In the first chapter of the report, entitled “A Comprehensive Response to Issues of National Importance”, the Commission states the need to adopt comprehensive policies and regulations.
Given what we learned through extensive consultation, data collection, and analysis over the life of our mandate, we share the widely held public view that new reproductive technologies raise issues of a magnitude and importance that not only warrant but require a national response. We reject the argument that new reproductive technologies as a general matter should continue to be subdivided into component parts and left to the provincial legislatures, or delegated to self-governing professional bodies, for regulation on a province-byprovince or even an institution-by-institution basis. Considering the overarching nature, profound importance, and fundamental inter-relatedness of the issues involved, we consider that federal regulation of new reproductive technologies— under the national concern branch of the peace, order, and good government power, as well as under the criminal law, trade and commerce, spending, and other relevant federal constitutional power—is clearly warranted. We recognize that the constitution assigns wide legislative jurisdiction to the provinces in the field of health. However, there is a clear basis for seeking national action in this area. In particular Parliament has authority, under the
Arts. 11 to 25 and 538 to 542 C.C.Q.; expert report of Mtre Knoppers, Schedule to vol. XXIII.
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national concern branch of the federal peace, order, and good government power, to regulate matters going beyond local or provincial interest that are of inherent concern to Canada as a whole.106
 Professor Françoise Baylis, who as an expert filed a report in support of the position of the Attorney General of Canada, wholeheartedly agrees with the conclusions of the Baird Commission. In her view, the intent to enact a law applicable across the country is grounded essentially on the universality, significance, and generality of the issues, which are of interest to all Canadians and therefore extend beyond local concerns.  However valid these intentions are, they do not have the effect of conferring a criminal law purpose on the control of assisted reproductive activities. The question is not whether the Act is good or bad, or whether it achieves its objectives or not, but whether its purpose is criminal in nature. In the present case, with the exception of the outright prohibitions, the record reveals no “evil” that needs to be repressed. Rather, it establishes the intent to control the clinical and research aspects of a medical activity in order to create a uniformity that is considered to be desirable. The appropriateness of a single piece of legislation applying to Canada as a whole and regulating a permitted and recognized activity is not a purpose that confers criminal law jurisdiction.  To sum up, the fundamental and dominant purpose of the impugned part of the Act is the safeguarding of health and not the elimination of an “evil”. Consequently, the impugned provisions cannot be characterized as criminal law under the Constitution Act, 1867. In this respect, it is relevant to note the comments of Sopinka J. in R. v. Morgentaler,107 supra:
The provinces have general legislative jurisdiction over hospitals by virtue of s. 92(7) of the Constitution Act, 1867, and over the medical profession and the practice of medicine by virtue of ss. 92(13) and (16). Section 92(16) also gives them general jurisdiction over health matters within the province: Schneider v. The Queen,  2 S.C.R. 112, at p. 137. The Schneider case gives an indication of the watershed between valid health legislation and criminal law. In that case, British Columbia's Heroin Treatment Act was held to be intra vires because its object was not to punish narcotics addicts, but to treat their addiction and ensure their safety and security. Narcotic addiction was targeted not as a public evil but as a “physiological conditions necessitating both medical and social intervention” (at p. 138). Accordingly, if he central concern of the present legislation were medical treatment of unwanted pregnancies and the safety and security of the pregnant woman, not the restriction of abortion services with a view to safeguarding the public interest or interdicting a public harm, the legislation would arguably be valid health law enacted pursuant to the province’s general health jurisdiction.
Supra note 6 at 18-19. Supra note 35 at 490-491.
PAGE : 34 (Emphasis added.)
 More generally, the approach suggested by the Baird Commission and enacted by Parliament puts at issue one of the founding principles of Canada: federalism. In the first section of the present judgment, the Court considered this issue, noting, inter alia, that the courts have protected the division of powers in order to avoid an imbalance in the functioning of the country.  If the impugned part of the Act was found to be validly enacted under the federal criminal law power, it would follow that few, if any, cutting-edge medical activities would escape such control, since it could be argued that in each case exclusive federal control was necessary to safeguard health, respect ethical standards, and promote a panCanadian uniformity of legislation. Indeed, one must ask why work on viruses or nanotechnology, neonatal surgery, and psychosurgy, to name but a few, should not also be overseen by one national agency, given the dangers they present and the ethical problems they raise. What is more, thanks to scientific and technological progress and the development of new material and equipment, what was dangerous yesterday has become common practice today. Organ transplants are an eloquent example.  By definition, medical activities must be decided upon and practiced ethically and be subject to standards that safeguard the health of the patient and the medical services provider. Controlling any one activity through criminal legislation opens the door to doing the same with all the others, thereby neutralizing an essential aspect of provincial jurisdiction in health matters. This does not mean that a particular activity cannot be prohibited and a penalty attached, as is done in sections 5, 6 and 7 of the Act. Health falls primarily within provincial jurisdiction and is not limited to the building and administration of hospitals, clinics, and laboratories; it also includes setting the standards to govern the activities carried out in such places. Redefining assisted reproduction practices as subject matters relating to the criminal law rather than health could create a Trojan horse that would significantly reduce provincial jurisdiction over health by permitting exhaustive regulation of other fields of medical practice, particularly those that have recently been developed. (b) Control or Criminalization?
 Unlike the situation in the Firearms Reference, supra, the impugned part of the Act seeks essentially to regulate an activity relating to health care. Offences are not actually defined in the Act but depend on the discretion of the government. Admittedly, the statute does create some prohibitions; these do not exist to forbid undesirable activities, however, but to impose standards on establishments and individuals regarding the carrying out of these activities. In short, the offences—or more accurately, the crimes, since offenders are liable to five years’ imprisonment—constitute a legal
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framework that ensures that reproductive activities are carried out in environments that are described and stipulated in the regulations.  It is true that an exemption does not deprive a law of its criminal nature. In the present case, however, the Act does not create exemptions. Indeed, Parliament designed the Act to permit assisted reproduction in Canada while ensuring federal control over it by conferring on the federal government the power to establish practice standards and by creating an agency to oversee the activity. This legislative architecture does not create exceptions to the prohibitions but defines the framework within which the medical practice of assisted reproduction may evolve.  In effect the Act is conceived in the negative, in the form of a prohibition unless the targeted action is carried out in compliance with regulations and by a license holder. Thus, the prohibition does not target medical activities per se (for example, in vitro fertilization procedures) but seeks only to create a framework for the activities by imposing licence requirements, defining skill standards for physicians, and creating rules to govern the operation of clinics. The Act also contains a number of other provisions relating to the practice of assisted reproduction, such as a requirement for patient consent, information collection, and the Agency’s management of the information collected. Thus, the criminal prohibition is a legal mechanism that confers the power to create provisions governing practice and research in the area of assisted reproduction. In this case, the objective of the prohibition is to ensure compliance with the regulations, not to brand the offender with the stigma of a criminal conviction.  Finally, section 68 of the Act creates an unusual situation in which the same action may be interpreted as a crime in one province but not in another. Specifically, this provision authorizes the federal government to order that the rules stipulated by one province be equivalent to its own. A standard may be equivalent without being identical, however, and since criminal statutes must be given a strict interpretation, it is possible for the prohibition to differ from one province to another. This is certainly a novel situation in the criminal law. It also indicates, once again, that Parliament’s objective was not to repress an unlawful activity but to place the power to make regulations to govern assisted reproduction in the hands of the federal government.
 The Court must therefore answer the question posed by the appeal in the affirmative. Sections 8 to 19, 40 to 53, 60, 61 and 68 of the Assisted Human Reproduction Act, S.C. 2004, c. 2, are ultra vires the jurisdiction of the Parliament of Canada pursuant to the Constitution Act, 1867.
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PAUL-ARTHUR GENDREAU, J.A. JACQUES CHAMBERLAND, J.A. PIERRETTE RAYLE, J.A. Mtre Jocelyne Provost Mtre Daniel Villeneuve BERNARD, ROY For the Applicant Mtre René LeBlanc Mtre Sébastien Gagné Mtre Jean-Robert Noiseux JOYAL, LEBLANC Counsel for the respondent Date of hearing: September 17, 18 and 19, 2007
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Sections 8 to 19, 40 to 53, 60, 61 and 68 of the Assisted Human Reproduction Act read as follows:
8. (1) No person shall make use of human reproductive material for the purpose of creating an embryo unless the donor of the material has given written consent, in accordance with the regulations, to its use for that purpose. (2) No person shall remove human reproductive material from a donor's body after the donor's death for the purpose of creating an embryo unless the donor of the material has given written consent, in accordance with the regulations, to its removal for that purpose. (3) No person shall make use of an in vitro embryo for any purpose unless the donor has given written consent, in accordance with the regulations, to its use for that purpose. 9. No person shall obtain any sperm or ovum from a donor under 18 years of age, or use any sperm or ovum so obtained, 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. 10. (1) No person shall, except in accordance with the regulations and a licence, alter, manipulate or treat any human reproductive material for the purpose of creating an embryo. (2) No person shall, except in accordance with the regulations and a licence, alter, manipulate, treat or make any use of an in vitro embryo. (3) No person shall, except in accordance with the regulations and a licence, obtain, store, transfer, destroy, import or export (a) a sperm or ovum, or any part of one, for the purpose of creating an embryo; or (b) an in vitro embryo, for any purpose. 11. (1) No person shall, except in accordance with the regulations and a licence, combine any part or any proportion of the human genome specified in the regulations with any part of the genome of a species specified in the regulations. (2) The following definitions apply in this section.
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“Human genome” means the totality of the deoxyribonucleic acid sequence of the human species. “Species” means any taxonomic classification of non-human life. 12. (1) No person shall, except in accordance with the regulations and a licence: (a) reimburse a donor for an expenditure incurred in the course of donating sperm or an ovum; (b) reimburse any person for an expenditure incurred in the maintenance or transport of an in vitro embryo; (c) reimburse a surrogate mother for an expenditure incurred by her in relation to her surrogacy. (2) No person shall reimburse an expenditure referred to in subsection (1) unless a receipt is provided to that person for the expenditure. (3) No person shall reimburse a surrogate mother for a loss of work-related income incurred during her pregnancy, unless: (a) a qualified medical practitioner certifies, in writing, that continuing to work may pose a risk to her health or that of the embryo or foetus; and; (b) the reimbursement is made in accordance with the regulations and a licence. 13. No person who is licensed to undertake a controlled activity shall undertake it in any premises except in accordance with a licence permitting the use of the premises for that controlled activity. 14. (1) A licensee shall not accept the donation of human reproductive material or an in vitro embryo from any person for the purpose of a controlled activity, and shall not perform a controlled activity on any person, unless the licensee has obtained from that person the health reporting information required to be collected under the regulations. (2) Before accepting a donation of human reproductive material or of an in vitro embryo from a person or accepting health reporting information respecting a person, a licensee shall: (a) inform the person in writing of the requirements of this Act respecting, as the case may be, (i) the retention, use, provision to other persons and destruction of the human reproductive material or in vitro embryo, or
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(ii) the retention, use, disclosure and destruction of the health reporting information; (b) to the extent required by the regulations, make counselling services available to the person and ensure that the person receives them; (c) obtain the written consent of the person to the application of the requirements referred to in paragraph (a); and; (d) in accordance with the regulations, provide the person with the information that the Agency makes available to the public under paragraph 19(i). 15. (1) No licensee shall disclose health reporting information for any purpose except: (a) with the written consent of the person to whom the information relates allowing its disclosure for that matter;
(b) in accordance with subsections (2) to (5). (2) A licensee shall disclose health reporting information
(a) to the Agency, to the extent required by the regulations; (b) to the extent required for the administration of a health care insurance plan within the meaning of the Canada Health Act; (c) for the purpose of complying with a subpoena or warrant issued or order made by a court, body or person with jurisdiction to compel the production of information or for the purpose of complying with rules of court relating to the production of information; and (d) to the extent required by the provisions of any federal or provincial law respecting health and safety that are specified in the regulations (3) A licensee that transfers human reproductive material or an in vitro embryo to another licensee shall disclose to the other licensee the health reporting information in its possession respecting the material or embryo, and respecting the person or persons to whom the material or embryo relates, but the identity of any person — or information that can reasonably be expected to be used in the identification of a person — shall not be disclosed except in the circumstances and to the extent provided by the regulations. (3.1) A licensee who transfers an in vitro embryo to another licensee shall notify the Agency of the transfer in accordance with the regulations. (4) Before performing an assisted reproduction procedure that makes use of human reproductive material or an in vitro embryo, a licensee shall disclose to the person undergoing the procedure the health reporting information in its possession respecting
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the donor, but the identity of the donor — or information that can reasonably be expected to be used in the identification of the donor — shall not be disclosed without the donor's written consent. (5) A licensee may disclose health reporting information to an individual or organization for scientific research or statistical purposes, other than the identity of any person — or information that can reasonably be expected to be used in the identification of any person. 16. (1) A person shall be given, on request, access to any health reporting information about the person that is under the control of a licensee or other person who has obtained the information. The person is entitled to (a) request the correction of the information if they believe there is an error or omission in that information; (b) require that a notation be attached to that information reflecting any correction that was requested but was not made; and (c) require that such a correction or notation be communicated to any person or body to whom that information was disclosed during the two years preceding the request for a correction. (2) A licensee or any other person that has control of the health reporting information provided by a donor of human reproductive material or an in vitro embryo, by a person who has undergone an assisted reproduction procedure or by a person who was conceived by means of such a procedure shall, at the request of the donor or that person, as the case may be, destroy that information in the circumstances and to the extent provided by the regulations, and shall inform the donor or that person that the destruction has occurred. (3) A licensee and any other person that has control of human reproductive material or an in vitro embryo shall destroy that material or embryo at the request of its donor in the circumstances and to the extent provided by the regulations, and shall inform the donor that the destruction has occurred (4) This section does not apply to (a) government institutions subject to the Privacy Act or the National Archives of Canada Act; or (b) a court, body or person referred to in paragraph 15(2)(c). 17. The Agency shall maintain a personal health information registry containing health reporting information about donors of human reproductive material and in vitro embryos, persons who undergo assisted reproduction procedures and persons conceived by means of those procedures.
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18. (1) The Agency may use health reporting information, and information otherwise relating to the controlled activities undertaken by an applicant or licensee, for the purposes of the administration and enforcement of this Act or the identification of health and safety risks, potential and actual abuses of human rights, or ethical issues associated with assisted human reproduction technologies and the other matters to which this Act applies. (2) Notwithstanding section 8 of the Privacy Act but subject to subsections (3) to (8), health reporting information under the control of the Agency relating to a donor of human reproductive material or an in vitro embryo, a person who has undergone an assisted reproduction procedure or a person who was conceived by means of such a procedure is confidential and shall be disclosed only with the written consent of the donor or that person, as the case may be. (3) The Agency shall, on request, disclose health reporting information relating to a donor of human reproductive material or of an in vitro embryo to a person undergoing an assisted reproduction procedure using that human reproductive material or embryo, to a person conceived by means of such a procedure and to descendants of a person so conceived, but the identity of the donor — or information that can reasonably be expected to be used in the identification of the donor — shall not be disclosed without the donor's written consent. (4) On application in writing by any two individuals who have reason to believe that one or both were conceived by means of an assisted reproduction procedure using human reproductive material or an in vitro embryo from a donor, the Agency shall disclose to both of them whether it has information that they are genetically related and, if so, the nature of the relationship. (5) The Agency shall disclose health reporting information (a) for the purpose of complying with a subpoena or warrant issued or order made by a court, body or person with jurisdiction to compel the production of information, or for the purpose of complying with rules of court relating to the production of information; and (b) to the extent required by provisions of any federal or provincial law respecting health and safety that are specified in the regulations. (6) The Agency may disclose health reporting information (a) for the purposes of the enforcement of this Act; (b) to the extent required for the administration of a health care insurance plan within the meaning of the Canada Health Act; and (c) for the purposes of disciplinary proceedings undertaken by any professional licensing or disciplinary body established under the laws of Canada or a province and specified in the regulations.
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(7) The Agency may disclose the identity of a donor to a physician if, in the Agency's opinion, the disclosure is necessary to address a risk to the health or safety of a person who has undergone an assisted reproduction procedure, was conceived by means of such a procedure or is a descendant of a person so conceived. The physician may not disclose that identity. (8) The Agency may disclose health reporting information to an individual or organization for scientific research or statistical purposes, other than the identity of any person — or information that can reasonably be expected to be used in the identification of any person. 19. The Agency shall make available for inspection by the public in accordance with the regulations any information that is prescribed by the regulations relating to (a) this Act, the regulations under this Act and policy directions under section 25; (b) the by-laws of the Agency; (c) licences issued by the Agency; (d) applications for, and amendments or renewals of, licences; (e) notices of proceedings in respect of the issuance, amendment, renewal, suspension, restoration or revocation of licences; (f) information and observations provided to the Agency in respect of any proceedings respecting licences, other than the identity of — or information that can reasonably be expected to be used in the identification of — any donor of human reproductive material or an in vitro embryo, any person who has undergone an assisted reproduction procedure or any person who was conceived by means of such a procedure; (g) decisions of the Agency arising from any proceedings respecting licences; (h) the names and addresses of licensees; (i) aggregated outcomes of assisted reproduction procedures performed by licensees; (j) measures taken under section 44; (k) the enforcement of this Act; (l) agreements entered into under section 58; (m) agreements entered into under section 68; and (n) reports and other documentation provided to or by the Agency pursuant to the Agency's power to monitor and evaluate developments in assisted human reproduction and other matters to which this Act applies.
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40. (1) The Agency may, in accordance with the regulations, issue a licence to any person having the qualifications provided under the regulations, authorizing the person to undertake any controlled activity specified in the licence. (2) A licence authorizing the use of an in vitro embryo for the purpose of research may be issued only if the Agency is satisfied that the use is necessary for the purpose of the proposed research. (3) The number of licences that the Agency considers sufficient may be issued in respect of clinical trials of a controlled activity. (3.1) The Agency shall not issue a licence under subsection (1) for embryonic stem cell research unless it has received the written consent of the original gamete providers and the embryo provider in accordance with the Human Pluripotent Stem Cell Research Guidelines released by the Canadian Institutes of Health Research in March, 2002, as specified in the regulations (4) If a person to whom a licence is issued is not an individual, the licence must designate an individual as the person responsible for compliance with this Act, but that designation does not affect the responsibility of the licensee or any other individual under this Act. (5) The Agency may, in accordance with the regulations, issue a licence to the owner or operator of any premises permitting the use of those premises for a controlled activity undertaken by persons to whom a licence has been issued under subsection (1). (6) The Agency may, in accordance with the regulations, attach terms and conditions to a licence at the time of issuing the licence or at any time after that. (7) The Agency may not apply a policy of cost recovery to the issuance of licences.
41. The Agency may, in accordance with the regulations, amend a licence or renew an
expiring licence, with or without amendment. 42. The Agency may, in accordance with the regulations, amend, suspend or revoke the licence of a licensee who contravenes this Act or the regulations or the terms and conditions of the licence or who fails to comply with any measures ordered to be taken under this Act, and may prescribe conditions for the restoration of a suspended licence. 43. (1) In exercising its powers under sections 40 to 42, the Agency may take into account information and observations offered by any person and may seek the advice of persons having expertise related to the application or of persons representative of any interest affected by the application. (2) Subject to subsection (3), the Agency shall, on request, disclose the information and observations provided under subsection (1) unless the disclosure would, in the Agency's opinion, pose a risk to the health or safety of any person.
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(3) The identity of — or information that can reasonably be expected to be used in the identification of — a donor of human reproductive material or an in vitro embryo, a person who has undergone an assisted reproduction procedure or a person who was conceived by means of such a procedure may not be disclosed except to an applicant or licensee who, in the Agency's opinion, requires the information to support an application. (4) No civil or criminal proceedings may be brought against any person for offering information and observations in good faith under subsection (1). 44. (1) The Agency may take, or order any person to take, all reasonable measures that the Agency considers necessary to prevent, reduce or mitigate any threat to human health or safety that results, or may reasonably be expected to result, from a controlled activity. (2) For the purposes of taking measures referred to in subsection (1), the Agency may authorize an inspector designated under section 46 to enter the premises where the controlled activity is being undertaken and to assume the management of those premises and that activity. (3) Any costs incurred by an inspector acting under this section shall be borne by the person who holds the licence in respect of the controlled activity or premises and, until paid, those costs are recoverable in any court of competent jurisdiction as a debt due to Her Majesty in right of Canada. (4) No person acting under this section is personally liable for so acting, either civilly or criminally, unless it is established that the person acted in bad faith. 45. The following definitions apply in sections 47 to 62 and 65. “information” means information that is recorded in any form. “material” means an embryo or part of one, a foetus or part of one or any human reproductive material outside the body of a human being, or any other thing. 46. (1) The Agency may designate any person employed by the government of Canada or of a province, or having the qualifications specified in the regulations, as an inspector for the purpose of the enforcement of this Act. (2) An inspector shall be given a certificate in a form established by the Agency attesting to the inspector's designation and, on entering any place or conveyance under subsection 47(1), the inspector shall, if so required, produce the certificate to the person in charge of that place or conveyance. 47. (1) Subject to section 48, an inspector may at any reasonable time enter any place or conveyance in which the inspector believes on reasonable grounds that a controlled activity is undertaken or that there is any material or information in respect of which this Act applies or any information pertaining to a controlled activity.
(2) An inspector entering a place or conveyance may
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(a) examine any material or information that is relevant to the administration or enforcement of this Act; (b) require any person in the place or conveyance to produce, in the manner and form requested by the inspector, any such material or information; (c) open and examine any receptacle or package that the inspector believes on reasonable grounds contains such material or information; (d) take, or require any person in the place or conveyance to produce, a sample of such material; and (e) conduct any test or analysis or take any measurement of such material. (3) In carrying out an inspection, an inspector may (a) examine and make copies of or extracts from any books, documents or other records that the inspector believes on reasonable grounds contain information relevant to the administration or enforcement of this Act; (b) require any person to produce such books, documents or other records for examination or copying; (c) use or cause to be used any computer system to examine information relevant to the administration or enforcement of this Act that is contained in or available to the computer system; (d) reproduce such information in the form of a printout or other intelligible output for examination or copying; and (e) use or cause to be used any copying equipment. (4) The owner or person in charge of a place entered by an inspector under subsection (1) and every person found in that place shall give the inspector all reasonable assistance and furnish them with any information that they may reasonably require. 48. (1) Where a place referred to in subsection 47(1) is a dwelling-house, an inspector may not enter it without the consent of the occupant, except under the authority of a warrant issued under subsection (2). (2) If, on ex parte application, a justice of the peace is satisfied by information on oath that (a) the conditions for entry described in subsection 47(1) exist in relation to a dwellinghouse,
(b) entry to the dwelling-house is necessary for any purpose relating to the administration or enforcement of this Act, and
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(c) entry to the dwelling-house has been refused or there are reasonable grounds for believing that entry will be refused, the justice of the peace may issue a warrant authorizing the inspector named in it to enter the dwelling-house, subject to any conditions that may be specified in the warrant. (3) In executing a warrant issued under subsection (2), the inspector named in it shall not use force unless the inspector is accompanied by a peace officer and the use of force has been specifically authorized in the warrant 49. (1) No person shall obstruct or hinder, or knowingly make any false or misleading statement either orally or in writing to, an inspector engaged in carrying out duties under this Act. (2) Except with the authority of an inspector, no person shall remove, alter or interfere in any way with material or information seized under this Act. 50. (1) An inspector who enters a place or conveyance under section 47 may seize any material or information by means of which, or in relation to which, the inspector believes on reasonable grounds this Act has been contravened. (2) An inspector may direct that seized material or information be kept or stored in the place where it was seized or be removed to any other proper place. 51. (1) A person from whom material or information is seized may, within 60 days after the date of the seizure, apply to a provincial court judge within whose jurisdiction the seizure was made for an order of restoration, if the person sends the Agency a notice containing the information prescribed by the regulations within the time and in the manner prescribed in the regulations. (2) The provincial court judge may order that seized material or information be restored immediately to the applicant if, on hearing the application, the judge is satisfied that (a) the applicant is entitled to possession of it; and (b) it will not be required as evidence in any proceedings under this Act. (3) If, on hearing an application, a provincial court judge is satisfied that the applicant is entitled to possession of seized material or information but is not satisfied as regards paragraph (2)(b), the judge may order that the material or information be restored to the applicant (a) on the expiry of 180 days after the date of the seizure if no proceedings under this Act have been commenced before that time; or
(b) on the final conclusion of proceedings under this Act.
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(4) A provincial court judge may not make an order for the restoration of material or information if it has been forfeited by consent under subsection 52(2). 52. (1) If no application is made under subsection 51(1) for the restoration of seized material or information within 60 days after the date of the seizure, or an application has been made but on the hearing of the application no order of restoration is made, the material or information is forfeited to Her Majesty. (2) Where an inspector has seized material or information and the owner or the person in whose possession it was at the time of the seizure consents in writing to its forfeiture, the material or information is forfeited to Her Majesty. (3) Subject to section 54, the Agency may dispose of material or information forfeited to Her Majesty in any manner that the Agency directs. 53. (1) An inspector is a public officer for the purposes of the application of section 487 of the Criminal Code in respect of an offence under this Act. (2) An inspector may exercise without a warrant any of the powers conferred by virtue of subsection (1) if the conditions for obtaining a warrant exist but, by reason of exigent circumstances, it would not be practicable to obtain a warrant. 60. A person who contravenes any of sections 5 to 9 is guilty of an offence and (a) is liable, on conviction on indictment, to a fine not exceeding $500,000 or to imprisonment for a term not exceeding ten years, or to both; or (b) is liable, on summary conviction, to a fine not exceeding $250,000 or to imprisonment for a term not exceeding four years, or to both. 61. A person who contravenes any provision of this Act, other than sections 5 to 9, or the regulations is guilty of an offence and (a) is liable, on conviction on indictment, to a fine not exceeding $250,000 or to imprisonment for a term not exceeding five years, or to both; or (b) is liable, on summary conviction, to a fine not exceeding $100,000 or to imprisonment for a term not exceeding two years, or to both. 68. (1) The Governor in Council may, by order, declare that any or all of sections 10 to 16, 46 to 53 and 61 and any corresponding provisions of the regulations do not apply in a province, except in respect of Her Majesty in right of Canada, if the Minister and the government of that province agree in writing that there are law of the province in force that are equivalent to those sections and the corresponding provisions of the regulations.
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(2) An agreement made under subsection (1) shall be for a period of five years, or any shorter period agreed to by the parties, but may be renewed. (3) An order under subsection (1) does not prevent the Agency from taking measures under section 44. (4) Where an order has been made under subsection (1) in respect of a province, any person carrying on an activity in the province that would be a controlled activity under this Act shall obtain health reporting information in accordance with section 14 and disclose it under paragraph 15(2)( a) as if the person were a licensee under this Act, and sections 17 and 18 apply in respect of that health reporting information. (5) When provisions of this Act cease to apply in a province by virtue of this section, a licence issued in respect of a person or premises in the province continues in effect in that province as if it were issued under provincial law.