These two laws overlapped and created a conflict over jurisdiction. Quebec challenged the federal law and after the Quebec Court of Appeal ruled,2008. that the federal act was invalid, Ottawa appealed to the Supreme Court in 2009. The Federal Government argued that it had jurisdiction under the Criminal law section 91-27, of the constitution. Quebec countered that it has jurisdiction under sec. 92-6, hospitals, sec.92-13,"property and civil rights" and under sec.92-16, " matters of a purely local nature in the Province".
Dec. 22, 2010, after 20 months, the Supreme court came back with a typical Canadian compromise. They ruled that while Quebec has jurisdiction over, "hospitals, property and civil rights and matters of a purely local nature", the federal law is valid because Ottawa has jiuisdiction over criminal law and does have the power to prohibit such activities as the cloning of human beings. However, the court said that "assisted human reproduction is an area of overlapping jurisdiction and allows provincial schemes to govern exclusively where provincial laws are equivalent to the federal scheme".
What does this mean ? The provinces have the power" to regulate clinical and research activities related to assisted human reproduction" . There will not be a single law for the country, but different laws for different provinces...a hodge-podge of laws,..... what may be allowed in one province will not be in another. Some provinces will have certain rights and protection which others will not have and vicre-versa, whether it be access, funding, research, oversight " the use and care of human embryos, eggs and sperm". No national standards.
This ruling has resulted in a gain of power for the provinces. It was a narrow interpretation of federal powers, which goes against the grain. Previously, the court had tended to interpret broadly, and this had favoured the federal government, especially in the area of "residual power". Perhaps the feds. should have argued that it is a new area not covered by the provincial grant of power, sec. 92 , and thus that it falls under 91-29 " such classes of subjects as are expressly excepted in the enumeration of the classes of subject by this Act assigned exclusively to the Legislatures of the Provinces."
It will be interesting to see whether this sets a precedent.