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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 laconstitutionnalité 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

CANADAPROVINCE OF QUEBECREGISTRY OF MONTREALNo.: 500-09-015177-041DATE: 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. 2ATTORNEY GENERAL OF QUEBEC

APPLICANTv.

ATTORNEY GENERAL OF CANADA

RESPONDENTJUDGMENT

I – INTRODUCTION

[1] Upon application by the Government of Quebec,

the Court must answer thefollowing question:

Orders in Council Reference to the Court of Appeal re Assisted Human Reproduction Act

, O.C. 1177-2004, 15 December 2004, G.O.Q. 2005.II.62 and

Amendment to Order in Council 1177-2004

500-09-015177-041 PAGE : 2

Are sections 8 to 19, 40 to 53, 60, 61 to 68 of the

Assisted Human

Reproduction

Act

S.C. 2004, c.2,

ultra vires

the Parliament of Canada in whole or in partunder the

Constitution Act, 1867

[2] 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 andsummarize the claims of the two parties to the reference. It will then consider thequestion raised, first by recalling the procedure of constitutional analysis in Canadianfederalism, and then by describing the respective areas of constitutional jurisdictionclaimed by both sides. Subsequently, the analytical principles set out in the variouslegislative provisions contemplated by the reference will be applied, and the Court willconclude its analysis by answering the question submitted by the Government of Quebec.

II – LEGISLATIVE HISTORY OF THE

ACT

[3] It will be helpful to recall the context in which this statute was enacted by meansof a brief overview of the various legislative and executive actions taken by Parliamentand the federal government in matters relating to assisted reproduction in recent years.[4] On October 25, 1989, motivated by concerns regarding the moral, religious, legaland social repercussions of scientific advances in assisted reproduction,

theGovernment of Canada passed an Order in Council creating the Royal Commission onNew Reproductive Technologies (the “Baird Commission”, named after its president,pediatrician Patricia S. Baird).

The Commission was mandated to investigate and makerecommendations with respect to the use of new reproductive technologies in Canada.On November 15, 1993, the Baird Commission submitted its final report.

It found thatthere was a need for Parliament to legislate to prohibit certain activities or technologiesdeemed to be unacceptable (human cloning, the creation of animal-human hybrids,etc.). It also recommended that Parliament create a national commission to regulate theaspects of various assisted reproductive technologies considered to be acceptable, andto issue licences to people who wish to apply these technologies.

[5] In April 1995, Health Canada asked a discussion group composed of researchersand 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. 73-2006, 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.

500-09-015177-041 PAGE : 3the Baird Commission, the discussion group found that prohibitions were needed toprevent certain experiments and activities relating to human embryos, such as thosehaving to do with cloning. It also emphasized the importance of establishing rules togovern other types of research on the human embryo, to be implemented through anational administrative body.

[6] On July 27, 1995, Diane Marleau, then Federal Minister of Health, asked medicalresearchers and practitioners to refrain from using new assisted reproductive practicesand technologies for a certain period of time. Among the technologies targeted by thisvoluntary moratorium were the sex selection of unborn children based on non-medicalcriteria, onerous surrogate motherhood contracts, and human cloning. At the same time,the Minister announced the creation of an advisory committee to advise Health Canadarespecting compliance with the moratorium.

[7] On June 1, 1996, the

Processing and Distribution of Semen for Assisted Conception Regulations

came into force.

Under this regulation, which creates auniform standard for sperm donation for assisted reproduction across Canada, spermwas now subject to a series of screening tests to reduce the risk of diseasetransmission.[8] On June 14, 1996, the first bill dealing with assisted reproduction was tabled inthe House of Commons.

Bill C-47, composed of fourteen sections, listed prohibitedactions and imposed penalties for violations. The bill prohibited assisted reproductivetechniques deemed to be totally unacceptable (producing zygotes from human andanimal reproductive material, selecting the sex of embryos, etc.) and thecommercialization of the human body (payment to surrogate mothers).[9] In June 1996, Health Canada published a document explaining the content of BillC-47 to the Canadian public. It also set out the framework of a second bill that wouldadd a section to the first permitting the regulation of assisted reproductive technologiesdeemed to be acceptable.

[10] Bill C-47 died on the Order Paper when the 1997 federal elections were called.[11] In June 2000, after consulting with the provinces about a possible federal lawprohibiting certain assisted reproductive technologies and regulating others, Health

Recherche sur l'embryon humain au Canada

(Final Report), discussion group on research onembryos, (Ottawa, 1995) at 2-3.

Health Canada, News Release 1995-57, “Health Minister Calls for Moratorium on Applying NineReproductive 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 tohuman 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.