The Assisted Human Reproduction Act Reference and the Thin Line Between Health and Crime

Abstract

With respect to health, the Constitution Act, 1867 does not specifically assign legislative authority to any level of government. As a result, Parliament and provincial legislatures can enact laws relating to health. This inevitably leads to disputes between both levels of government over who has the authority to enact legislation to deal with whatever aspect of health is in question. However, it is now fairly well established that Parliament can regulate health using its criminal law power, among others, and that the provinces can do the same under various heads of provincial powers. The courts have also laid down a number of guiding principles to help delineate the legislative space occupied by each level of government in health and other subjects of shared jurisdiction. Still, controversy remains, as was the case in the Assisted Human Reproduction Act reference, which considered whether Parliament acted within its authority in using the criminal law power to enact provisions governing aspects of assisted human reproduction and related research.