In a recent decision, the Quebec Court of Appeal declared the Genetic Non-Discrimination Act (the “Act”), adopted by the federal Parliament and which came into force on May 4, 2017, to be ultra vires because of its encroachment on the jurisdiction of provincial legislatures.
The Court was of the opinion that the main purpose of the Act was to promote the health of Canadians by encouraging access to genetic tests for medical purposes. Consequently, the Actsought to regulate matters falling under the province’s jurisdiction, namely genetic discrimination in employment and insurance contracts (civil and property rights), rather than criminal law, which would fall under federal jurisdiction.
Given the appeal by the Canadian Coalition for Genetic Fairness, the Supreme Court of Canada will once again have the opportunity to determine the constitutional validity of a law under the Constitution’s division of powers.
Introduction / history of the Act
Prior to the introduction of the Act, there was no legislation in force in Canada that specifically addressed the issue of genetic discrimination and the protection of the particular characteristics of the human genome. The purpose of the introduction of the Act to prohibit and prevent genetic discrimination (the “Bill S-201”) was to prohibit any person in requiring an individual from undergoing genetic testing or disclosing genetic test results as a condition of: (a) providing goods and services; (b) entering into or continuing a contract or agreement with that individual; or (c) offering or continuing specific terms or conditions in a contract or agreement with that individual. The Bill would also amend the Canada Labour Code and the Canadian Human Rights Act to address discrimination, particularly in the areas of insurance and labour relations, by adding the terms “genetic characteristics”.
The Bill S-201 was first introduced to encourage the use of genetic tests in order to improve the health of Canadians by suppressing the fear of some that this information could eventually serve discriminatory purposes in the entering of agreements of in the provision of goods and services.
This was legitimate purpose to legislate on since many Canadians and certain interveners have raised concerns about the fact the risk of discrimination could outweigh the benefits of information that could lead to more personalized and efficient health care. In that respect, the Bill then seemed to address a genuine problem. However, others were opposed to the Bill since it would prohibit insurers from obtaining genetic test results and thus undermine policy holders’ obligation to disclose all material information relevant to risk assessment.
That being said, even before its royal sanction and as we previously mentioned in one of our article, the bill was said to face constitutional challenge on the basis of the Constitution’s division of powers. The federal Parliament had nevertheless decided to proceed with the adoption of the law, against the advice of the Minister of Justice of Canada and notwithstanding the opinion of her department saying that the Act, as drafted, would rather be related to the regulation of contracts and the provision of goods and services (s. 92(13) and (16) of the Constitution Act, 1867).
Following its adoption, it did not take long for the Government of Québec to issue a decree in order to ask the Court of Appeal to verify the constitutional validity of the law, on the grounds that the Act encroaches on the jurisdiction of provincial legislatures to regulate private law.
The Government of Québec referred to the Court the following question:
“Is the Genetic Non-Discrimination Act enacted by sections 1 to 7 of the Act to prohibit and prevent genetic discrimination, (S.C. 2017, c. 3) ultra vires to the jurisdiction of the Parliament of Canada over criminal law under paragraph 91 (27) of the Constitution Act, 1867?”
This issue therefore was to analyze the validity of section 1 to 7 of the Act. In short, these provisions prohibit the following:
1. requiring an individual to undergo a genetic test as a condition of providing goods or services or of entering into or maintaining a contract or any of its terms (sec. 3);
2. requiring an individual to disclose the results of such a test as a condition of engaging in one of these activities or refusing to engage in these activities because of the refusal to disclose these results (sec. 4); and
3. for any person engaged in these activities in regard to an individual, to collect, use or disclose the results of a genetic test of the individual without that individuals written consent (sec. 5).
Section 2 of the Act defines a “genetic test” as “a test that analyzes DNA, RNA or chromosomes for purposes such as the prediction of disease or vertical transmission risks, or monitoring, diagnosis or prognosis”, as sec. 6 exempts health care practitioners and researchers from the application of sections 3 to 5 of the Act.
Criminal sanctions are provided at section 7, where any contravention of the here above prohibitions constitutes an offence and can result in a fine not exceeding one million dollars and in imprisonment for a term not exceeding five years on conviction on indictment, or in a fine not exceeding three hundred thousand dollars and in imprisonment for a term not exceeding twelve months on summary conviction.
In that respect, the Court had to determine the validity of Act by examining the language used in the provisions, the effects of the law, as well as the context of its enactment. While also looking at the parliamentary debates, the Court found that the main purpose of sections 1 to 7 of the Act (its pith and substance) was not to address a criminal law object but rather to protect and to promote health by fostering the access by Canadians to genetic tests for medical purposes (para 9).
Indeed, by referring to the Supreme Court’s findings in Reference re Validity of Section 5(a) of the Dairy Industry Act,  S.C.R. 1 and in Reference re Assisted Human Reproduction Act, 2010 SCC 61, the Court concludes that sections 1 to 7 of the Act do not prohibit genetic discrimination. In fact, the prohibition of discrimination based on genetic characteristics appears only in sections 8 to 10 of the Act, which respectively modify the Canada Labour Code and the Canadian Human Rights Act to include genetic characteristics as a prohibited ground of discrimination within the purview of matters falling under the legislative authority of Parliament (par.20).
Essentially, the Court indicated that “one cannot discern the ‘evil’ within the meaning of criminal law that Parliament sought to ban here, if not in the perspective of fostering or promoting health, which cannot constitute a primary criminal law object” (par.21).
The Court later clearly states that “there is no ‘real public health evil’ here that would justify the recourse to subsection 91(27) of the Constitution Act, 1867. The criminal law object advanced to justify the Act […] is clearly not a criminal law object. The situation here is “completely distinguishable from the exercise of federal jurisdiction over criminal law regarding tobacco or illicit drugs, which intrinsically present a threat to public health. That is not the case for genetic tests” (par.24).
Finally, the Court mentioned the importance to maintain a just and workable balance between the federal and provincial heads of power, and that courts should not be reluctant to invalidate federal legislative provisions inconsistent with the requirements of subsection 91(27) of the Constitution Act, 1867, in preserving this balance to insure Canada’s future (par.26).
In addition, as intervener on the case, the Canadian Coalition for Genetic Fairness recently filed a notice of appeal with the Supreme Court of Canada. As a result, the highest court of the country will once again have to decide on the constitutional validity of a law under the Constitution’s Division of powers, and incidentally, on which level of government is entitled to legislate on protection against genetic discrimination for Canadians. This issued is expected to be debated in fall 2019.
By Karl Bhérer
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