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Genetic non-discrimination law is constitutional, SCC rules

Decision has ‘profound implications’ beyond holding that Act is constitutionally valid, says counsel

Genetic non-discrimination law is constitutional, SCC rules
Joseph Arvay of Arvay Finlay LLP in Vancouver was lead counsel for the successful appellant in the case.

Federal legislation that prohibits genetic discrimination is constitutional, the Supreme Court of Canada ruled today in a 5-4 decision.

In Reference re Genetic Non‑Discrimination Act, the Supreme Court ruled that Parliament has the criminal law power to enact the Act, which was passed by Parliament in 2017.

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,” and says that individuals cannot be forced to take genetic tests or disclose genetic test results as a condition of obtaining access to goods, services and contracts – including with employers and insurers -- nor refused access to such because they have refused to take a genetic test or disclose the results of one.

At issue before the court was the “pith and substance” of the Act, and the division of powers between Parliament and the provinces.

The majority of the court found that the Genetic Non-Discrimination Act is not ultra vires of Parliament, which did and does have the ability to enact the legislation under s.91(27) — the criminal law power — of the Constitution Act, 1867.

“The decision has profound implications beyond its holding that the Genetic Non-Discrimination Act is constitutionally valid,” Joseph Arvay, a partner at Arvay Finlay LLP in Vancouver, told Canadian Lawyer.

“It may be fairly described as affirming an expansive view of Parliament’s jurisdiction to enact criminal law,” says Arvay, who was counsel for the appellant, the Canadian Coalition for Genetic Fairness.

The ruling “ensures that with whatever novel, yet harmful, conduct that might arise in the next millennium, Parliament will have the powers to prohibit and punish that conduct where it poses a risk of harm not only to public health but also to autonomy, privacy and equality.”

After the Genetic Non-Discrimination Act was enacted, the Government of Quebec argued that it exceeded federal authority, and referred it on a constitutional question to the Quebec Court of Appeal. Was the Act ultra vires, or outside the power, of the federal government, and if so, was it unconstitutional?

In 2018 a panel of five judges of the Quebec Court of Appeal [QCCA] unanimously answered the reference question affirmatively, finding that the Act did exceed Parliament's authority over the criminal law. The Court of Appeal found that the Act aims to encourage the use of genetic testing to improve the health of Canadians by suppressing the fear that this information could eventually be used for discriminatory purposes, and concluded that the provisions do not further a valid criminal law purpose.

Instead, in the QCCA’s view, the prohibitions in the Act govern the type of information available for employment and insurance purposes, which according to the QCCA is not a valid criminal law purpose. The provisions of the Act do not attack a real public health “evil,” in contrast to legislation dealing with matters such as tobacco and illicit drug use.

In October the Supreme Court heard the Canadian Coalition for Genetic Fairness’s challenge to the QCCA’s ruling.

In her reasons, Justice Andromache Karakatsanis outlined a methodology in determining whether a law falls under federal or provincial authority. The first step is to characterize the law by identifying its pith and substance, its true subject matter and dominant purpose, or leading feature: in other words, its most important characteristic. The next step is to classify the law, or assign that subject matter to one of the heads of power.

A valid criminal law will generally have three components: a prohibition, accompanied by a penalty, and backed by a criminal law purpose (i.e., whether a law is directed by an “evil”).

The prohibitions in the Genetic Non-Discrimination Act respond to a threat of harm to a number of overlapping public interests traditionally protected by the criminal law: autonomy, privacy, equality, and public health. Because the Act is protecting against threats to those public interests, it could be interpreted as having a valid criminal law purpose.

In today’s decision, Justice Karakatsanis (with Justices Rosalie Abella and Sheilah Martin concurring) found that the purpose of the legislation was to combat genetic discrimination and protect the health of Canadians, which fell under criminal law and therefore the jurisdiction of Parliament.

In concurring reasons, Justice Michael Moldaver (with Justice Suzanne Côté agreeing) found that the Act’s purpose was to protect Canadians’ health by ensuring they had control over their genetic information, which is also within Parliament’s powers under criminal law.

In dissent, Justice Nicholas Kasirer — also writing for Chief Justice Richard Wagner and Justices Russell Brown and Malcolm Rowe — found that the Act affected only contracts and aimed to prevent the misuse of genetic tests in order to promote their health. Since contractual law falls under provincial jurisdiction, the Act was therefore ultra vires of Parliament’s power.

”One of the difficulties in this case facing my clients — a coalition of societies committed to genetic fairness who alone with other interveners sought to support this law — was not only that the provincial attorneys general claimed that the Act was unconstitutional, but so did the Attorney General of Canada whose government enacted the law,” said Arvay.

He added that his coalition of “clients are both thrilled and relieved, as it was such a squeaker of a decision.”

Counsel for the Attorneys General of Quebec and Canada, the respondents in the case, were not immediately available for comment.

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