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Constitutional law - Division of powers - Health - Assisted human reproduction - Whether ss. 8 to 19, 40 to 53, 60, 61 and 68 of Assisted Human Reproduction Act, S.C. 2004, c. 2, exceed, in whole or in part, legislative authority of Parliament of Canada under Constitution Act, 1867.

To deal with concerns over the moral, religious, legal and social ramifications of scientific advances in the area of assisted human reproduction, the Parliament of Canada passed the Assisted Human Reproduction Act (“Act”) on February 11, 2004. On December 18, 2007, the Quebec Minister of Health and Social Services in turn introduced a bill — Bill 23 entitled An Act respecting clinical and research activities relating to assisted procreation — to regulate clinical and research activities relating to assisted procreation in order to ensure high-quality, safe and ethical practices.

In September 2007, a few months before Bill 23 was passed, the Quebec government referred to the Court of Appeal a question regarding the constitutional validity of ss. 8 to 19, 40 to 53, 60, 61 and 68 of the Act. According to the Attorney General of Quebec, the pith and substance of the impugned provisions is the regulation of all aspects of medical practices related to assisted human reproduction, including health professionals and the health institutions in which those professionals work, the doctor-patient relationship, and civil aspects of medically assisted human reproduction. In his view, those provisions are contrary to the division of powers provided for in the Constitution Act, 1867 and are accordingly invalid. The Attorney General of Canada submitted that the provisions in question are valid pursuant to both the power of the Parliament of Canada to make laws in relation to the criminal law and the “double aspect” doctrine, according to which two levels of government may make laws on different aspects of a single field. He added that the purpose of the Act is to protect health, safety and public morals and that the Act accordingly has a valid criminal law purpose.

On June 19, 2008, the Court of Appeal held in favour of the province, declaring that the provisions in issue exceed the authority of the Parliament of Canada under the Constitution Act, 1867.