On May 4, 2017, the Genetic Non-Discrimination Act (Act) received royal assent and came into force, despite the federal Minister of Justice's opinion that the Act was unconstitutional. The Government of Québec quickly challenged its constitutionality, referring the question to the Québec Court of Appeal for an advisory opinion and arguing that the Act was beyond federal jurisdiction over criminal law. The federal government did not defend the law, so an amicus curiae was appointed and interveners came forward to support the law. They argued that the law was a valid exercise of the federal criminal law power.
On December 21, 2018, a five-judge panel of the Court struck down the law on the grounds that it was unconstitutional, finding that the Act's pith and substance was not criminal law, but rather property and civil rights.[i]
Through close monitoring of the Court's docket, Fasken has learned that an intervener, the Canadian Coalition for Genetic Fairness, has filed an appeal to the Supreme Court. The Court has accepted that an appeal lies as of right, and that no grant of leave is required. As a result, this case is headed to the nation's highest court for a decision.
The Act's Impugned Provisions
As discussed in a prior Fasken bulletin, sections 3-4 of the Act prohibit anyone from requiring that an individual undergo or disclose the results of a genetic test as a condition of providing goods or services, or as a condition of entering into or maintaining any contract. Section 5 prohibits any person engaged in such activities from collecting, using, or disclosing the results of a genetic test of the individual without his or her written consent. Section 2 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."
The Act is backed with criminal sanctions and maximum fines of $300,000 and $1 million, depending on the severity of the offence.
Moreover, section 6 exempts healthcare practitioners and researchers from the application of sections 3-5, and thus from the penalties.
Sections 8-11 of the Act were not challenged. Section 8 modifies the Canada Labour Code to provide employees working for a federal undertaking the right to refuse to undergo or disclose the results of a genetic test. Sections 9-11 modify the Canadian Human Rights Act by adding "genetic characteristics" as a prohibited ground of discrimination.
Pith and Substance of the Act
When a federal or provincial law is challenged under the Constitution's division of powers, courts look to the "pith and substance" or main purpose of the law, and then allocate the law to the appropriate level of government according to its pith and substance.
To ascertain the Act's pith and substance, the Court examined its language, the parliamentary debates surrounding its enactment, and its practical effects. The Court found that the Act's true purpose is not to prohibit genetic discrimination.[ii] Rather, the Act's purpose is to promote the health of Canadians by encouraging access to genetic tests for medical purposes.[iii] In particular, the Act encourages such access by suppressing the fear that genetic information could eventually serve discriminatory purposes in the context of a contract or service.[iv]
Validity of the Act
Supporters of the Act attempted to justify it as having a criminal law purpose. A criminal law purpose would have to address an "act which the law, with appropriate penal sanctions, forbids … some evil or injurious or undesirable effect upon the public against which the law is directed."[v] Traditionally, this has included protecting the community from dangerous objects and harmful substances, ranging from firearms to narcotics to tobacco.[vi]
However, the Court emphasized that there was an important difference between protecting the community from a dangerous object or substance and a more general goal of promoting good health. Indeed, the Court ruled that "fostering or promoting health … cannot constitute a primary criminal law object."[vii] This distinguished the Act's purpose from traditional criminal law objectives addressing substances "which intrinsically present a threat to public health."[viii] As a result, in the case of genetic tests "there is no 'real public health evil' that would justify the recourse" to the criminal law power.[ix]
Moreover, according to the Court, the Act is constitutionally suspect because it is aimed at regulating contracts of goods and services, which falls under provincial jurisdiction over property and civil rights.[x]
The judgment ended with a clear statement concerning the dangers of an overly-expansive interpretation of the criminal law power, and the importance of just and workable balance between federal and provincial jurisdiction. It emphasized that "a federal state depends for its very existence on this balance between the central and provincial levels of government … In short, Parliament's jurisdiction over criminal law cannot be exercised when the object of the legislation does not truly fit within the framework of criminal law."[xi]
On January 16, 2019, the Canadian Coalition of Genetic Fairness, an intervening party to the case, filed a notice of appeal to the Supreme Court of Canada under section 36 of the Supreme Court Act.[xii]
This is an appeal as of right. As such, the case is guaranteed to end up in front of the Supreme Court. Only time will tell how Canada's highest court will rule. If the Court of Appeal's decision is affirmed, then it will be up to the individual provinces to decide whether to legislate protections against genetic discrimination in their respective human rights codes, their insurance acts or in entirely new legislation.
[i] Reference Re Genetic Non-Discrimination Act, 2018 QCCA 2193 at para 1 [Reference Re Genetic Non-Discrimination Act].
[ii] Ibid., at para 9.
[iv] Ibid., at paras 9-10, 18-19.
[v] Reference re Validity of Section 5 (a) Dairy Industry Act,  SCR 1 at 49-50, quoted in Reference Re Genetic Non-Discrimination Act, supra note 1, at paras 12-13.
[vi] See respectively Ref re Firearms Act (Can), 2000 SCC 31; R v. Malmo-Levine, 2003 SCC 74; RJR-MacDonald Inc. v. Canada (AG),  3 SCR 199.
[vii] Reference Re Genetic Non-Discrimination Act, supra note 1, at para 21.
[viii] Ibid., at para 24.
[x] Ibid., at para 14.
[xi] Ibid., at para 26.
[xii] Supreme Court Act, RSC 1985, c S-26, s. 36.