The Supreme Court of Canada Splits in Reference re Assisted Human Reproduction Act

Posted By Chad Bass-Meldrum – Jan. 22, 2011

Just one month ago today, on 22 December 2010, the Supreme Court of Canada rendered its long-awaited decision in Reference re Assisted Human Reproduction Act, 2010 SCC 61—a controversial case concerning the constitutionality of several sections of Parliament’s Assisted Human Reproduction Act, SC 2004, c 2. At issue in this appeal from the Quebec Court of Appeal was whether the impugned provisions (namely ss 8-19, 40-53, 60, 61, and 68) of the Assisted Human Reproduction Act were in pith and substance a provincial matter of health or a federal matter of criminal law, and thus whether the impugned provisions exceeded the legislative authority of Parliament under s 91(27) of the Constitution Act, 1867. In responding to this issue the Court split 4-4-1: McLachlin CJ and Binnie, Fish, and Charron JJ reasoned that the legislation was valid under the federal criminal law power, while LeBel, Deschamps, Abella, and Rothstein JJ opined that the impugned provisions related to the provincial power over hospitals, property and civil rights as well as matters of a merely local nature and were thus ultra vires Parliament. Ultimately, Cromwell J. (a rookie member of the Court) split the Supreme Court of Canada by allowing the appeal in part, thereby giving everyone a piece of the federalism pie.

For the Court’s written judgment see: <http://scc.lexum.umontreal.ca/en/2010/2010scc61/2010scc61.html>.