Scaling Back the Federal Criminal Law Power: Justice Cromwell Splits the Difference in Reference re Assisted Human Reproduction Act

Politicians may try to claim otherwise, but federalism rarely concerns life and death. Every so often, however, a division of powers dispute arises that has considerable public policy implications. On December 22, the Supreme Court of Canada (“SCC”) issued a divided 4-4-1 opinion in Reference re Assisted Human Reproduction Act, 2010 SCC 61, which struck down several regulations in the federal government’s assisted reproduction regime for violating the constitutional division of powers.

This case was highly anticipated for several reasons. First, as with everything pertaining to assisted reproduction policy in Canada, the case had a long gestation period: the Supreme Court originally heard the case in April 2009, taking nearly 20 months to come to its ruling. Second, it offered an opportunity for the Court to clarify its recent federalism jurisprudence, which had hitherto expanded the criminal law power under s. 91(27) of the Constitution Act, 1867.

Finally, for those concerned with these evolving technologies, the stakes were high. Proponents of Canada’s reproductive technology regime feared that losing important pieces of this legislation – which covered everything from in vitro fertilization to human cloning – would once again leave Canada with an unregulated patchwork of unenforceable policies, increasing the likelihood of fertility tourism. Whether such a patchwork will develop remains to be seen, but this decision had potential implications for both the constitutional law of federalism and the future of reproductive technologies in this country.

Reproductive Technologies and the Assisted Human Reproduction Act

Assisted reproductive procedures such as in vitro fertilization and germ-line engineering touch on highly sensitive issues of life, death, and sexuality. As such, Canadian policymakers have tread very carefully when deciding how to regulate this evolving policy field. Brian Mulroney struck a Royal Commission on New Reproductive Technologies in 1989, and in 1993 it recommended a mix of criminal prohibitions and regulations. Importantly, the Commission advocated federal rather than provincial legislation, claiming there was “a clear basis for seeking national action in this area.” In particular, it pointed to the “Peace, Order, and Good Government” clause in s. 91 of the Constitution Act, 1867 as justification.

After five legislative attempts, in 2004 Parliament finally passed the Assisted Human Reproduction Act, SC 2004, c 2 [AHRA], which was widely considered one of the most comprehensive pieces of reproductive technology legislation in the world. The AHRA followed the Royal Commission’s recommendations very closely. It banned everything from human cloning to the creation of animal/human chimeras to payment for surrogacy, and set regulations for the licensing of clinics, donor consent, and the storing of genetic records.

Taking another piece of advice from the Commission, the Act also created Assisted Human Reproduction Canada (“AHRC”), a federal agency with a broad power to introduce new regulations. However, the Quebec government raised concerns that the AHRA violated provincial jurisdiction over health and medicine. It put a reference question to the Quebec Court of Appeal, which ruled much of the AHRA unconstitutional in June 2008. The federal government then appealed to the SCC, which heard the case in 2009 and ruled a few days before Christmas 2010.

Limiting the Criminal Law Creep

The Attorney General for Quebec (joined by New Brunswick, Saskatchewan, and Alberta) did not challenge the majority of the criminal prohibitions contained in ss. 5-7 of the Act. However, it asserted that ss. 8 to 19, 40 to 53, 60, 61 and 68 of the Act – virtually every regulatory provision, along with a few prohibitions deemed regulatory in nature – were ultra vires the Parliament of Canada.

Specifically, Quebec argued that the impugned provisions were in pith and substance related to health care and the training of medical professionals, violating ss. 92(7) (the establishment, maintenance, and management of hospitals), 92(13) (property and civil rights in the province), 92(16) (matters of a merely local or private nature), and 93 (education) of the Constitution Act, 1867. For its part, the federal government claimed that the laws were ancillary to the prohibitions contained in ss. 5-7 of the Act, and thus were intra vires under s. 91(27), the criminal law power. Interestingly, the federal government did not even attempt to justify the legislation under the Peace, Order, and Good Government (POGG) power, as the Royal Commission had recommended.

This case offered the Supreme Court a chance to clarify its jurisprudence concerning the evolving criminal law power under s. 91(27). In RJR-MacDonald Inc v Canada (Attorney General), [1995] 3 SCR 199, R v Hydro-Québec, [1997] 3 SCR 213, and the Reference re Firearms Act (Can), [2000] 1 SCR 783 [Firearms Reference], the Court consistently offered an expansive definition criminal law. However, in Reference re Assisted Human Reproduction Act, the Court was faced with the most difficult application of this doctrine yet. By conceding that most prohibitions (such as human cloning and payment for surrogacy) were constitutionally valid, Quebec focused the Court’s attention squarely on those regulations that were ancillary to criminal prohibitions.

Moreover, because Quebec was able to point to over a dozen provincial statutes and regulations affected by the Act, the case offered the Court an opportunity to determine where exactly the line between criminal law and health care must be drawn. In short, there had to be a winner.

Fundamentally, the case turned on whether or not the impugned provisions were in pith and substance a matter of health or criminal law. In a 163-page opinion, the Court split 4-4-1: McLachlin C.J., joined by Binnie, Fish, and Charron JJ., would have upheld the entire legislation as valid under the criminal law power; LeBel and Deschamps JJ., joined by Abella and Rothstein JJ., felt the impugned provisions were related to health, and would have struck them all down. In the end, the tiebreaking vote of rookie Justice Thomas Cromwell decided the case. Cromwell’s brief opinion gave half a loaf to each side, striking down many provisions but upholding regulations relating to consent and surrogacy, finding they were criminal in nature. This result leaves a regulatory void to be filled by the provinces in many areas of assisted reproductive technology.

If You Want Clarity, Look Elsewhere

Unfortunately, those looking to the Court for clarity will be disappointed; the two main opinions were divided on nearly every substantive issue before the Court. The most fundamental disagreement, which coloured the subsequent analysis, concerned the pith and substance of the legislation. McLachlin agreed with the federal government that the purpose and effect of the legislation was to ban certain practices associated with assisted reproduction that constituted a public health “evil.”

Thus, McLachlin could claim that “the dominant thrust of the Act is prohibitory,” and that the legislation constitutes “essentially a series of prohibitions, followed by a set of subsidiary provisions for their administration” (paras 24-25). LeBel and Deschamps JJ, by contrast, argued the Act in pith and substance set national standards for “a specific type of health services provided in health-care institutions by health-care professionals” (para 227). For McLachlin, the legislation prohibits an evil; for LeBel and Deschamps, it regulates a good.

Once the pith and substance was determined, it was clear that the Justices would agree on little else. McLachlin found the legislation related primarily to s. 91(27), while LeBel and Deschamps found it fell within ss. 92(7), (13), and (16), though they rejected Quebec’s argument that it affected s. 93 (education).

Yet the disagreements did not stop there. McLachlin gave little weight to the Royal Commission’s recommendations, while LeBel and Deschamps made it central to their analysis. McLachlin looked almost exclusively at the Act’s purposes, while LeBel and Deschamps gave greater scrutiny to its effects. McLachlin cited the Firearms Reference approvingly as an example of overflow and the “ancillary powers” doctrine, with LeBel and Deschamps claiming it was not an appropriate comparison. LeBel and Deschamps also accused McLachlin of essentially ignoring the “double aspect” doctrine; McLachlin, in turn, claimed their analysis of the doctrine went into “untravelled constitutional territory” (para 67).

Given such a deep divide, Justice Cromwell’s vote carried the day. In his brief opinion, he disagreed with both McLachlin and LeBel/Deschamps. For Cromwell, the pith and substance was neither the prohibition of harmful activities nor the regulation of assisted reproduction as a health service. Rather, the purpose and effect of the Act was “the regulation of virtually every aspect of research and clinical practice in relation to assisted human reproduction” (para 285, emphasis added). Cromwell agreed with LeBel and Deschamps that the Act as a whole fell under provincial jurisdiction rather than the criminal law.

However, not every impugned provision shared the Act’s overall pith and substance. In particular, Cromwell found ss. 8, 9, and 12 of the AHRA – concerning donor consent, the age of consent, and reimbursement for medical surrogacy expenses – were sufficiently criminal in nature, and therefore intra vires the Parliament of Canada. Cromwell also upheld several other sections of the Act, but only insofar as they related to sections he deemed constitutional. By finding middle ground between the other two opinions, many provisions relating to licensing and embryo implantation will now have to be regulated by the provinces.

Implications for Future Federalism Cases

Cromwell’s approach perhaps granted too much latitude to the federal government in attaching regulations to prohibitions, but at the very least it stopped a majority of the court from adopting an overly expansive definition of criminal law. McLachlin’s opinion was problematic for two reasons. The first was her dismissive treatment of the Royal Commission. McLachlin gave the Commission’s recommendation little if any weight, claiming it was a mere “policy analysis” that did little to inform the efforts behind the AHRA.

Yet a cursory study of Canadian assisted reproduction policy shows that this is not a credible position. At every stage of the legislative process, Parliament relied on the Commission, in the end producing legislation that was remarkably similar to its recommendations, including prohibited activities, “controlled” activities, and the establishment of a national agency. Moreover, statements from Ministers of Health confirm that Parliament’s goal, in addition to criminalizing certain “evils,” was to implement national standards in the area of reproductive technology, even when those standards tread on provincial jurisdiction over health. LeBel and Deschamps correctly criticized McLachlin’s account for containing “no factual basis whatsoever” and being “contrary to the usual approach to constitutional analysis” (para 177).

Second, even if McLachlin had been correct in her account of legislative history, the sweeping criminal law power she would have afforded the federal government would simply have gone too far. LeBel and Deschamps were again correct when stating that McLachlin’s interpretation “goes further than any previous judicial interpretation,” enabling the federal government to make laws “in respect to any manner, provided it cited its criminal law power” and included some form of criminal sanctions (paras 239-240).

So much of the AHRA, from licensing of clinics to the broad regulatory powers conferred on the national agency, was far removed from a criminal purpose. Any relation of these components to an “evil” posed by assisted reproduction was incidental, and the absence of these regulations will not impede the criminal prohibitions in ss. 5-7 of the Act. Whether the policies themselves were advantageous is irrelevant; as LeBel and Deschamps argued, “neither a desire for uniformity nor the very novelty of a medical technology can serve as the basis for an exercise of the federal criminal law power” (para 255).

What does this case mean for the future of federalism jurisprudence? The simple answer is that it is likely to mean very little. The doctrinal and jurisprudential disagreements between McLachlin and LeBel/Deschamps were so fundamental that it is impossible to predict how the Court might rule in future cases, including the forthcoming appeal concerning the federal government’s decision to close InSite, Vancouver’s controversial safe injection site (see PHS Community Services v Canada, 2010 BCCA 15). Cromwell’s tie-breaking vote offered an answer for this particular case, but it is not at all clear how such divergent approaches to the criminal law power can be reconciled in the future.