Reference Re Genetic Non-Discrimination Act, 2020 SCC 17

Terminology

Ultra Vires - outside or beyond the enacting government’s scope of power (in this case, the Federal Gov’t).

Intra Vires - inside or within the enacting government’s scope of power (in this case, the Federal Gov’t).

Overview

In 2017, the Genetic Non-Discrimination Act came into force which prohibited third parties from forcing individuals to take genetic tests or disclose results as a condition of obtaining access to goods, services and contracts, with certain exceptions for health care and research. Further, the Act amended the Canada Labour Code to protect employees from forced testing and / or disclosure and added genetic characteristics as a prohibited ground under the Canadian Human Rights Act.

The Government of Quebec questioned whether such legislation was ultra vires the Federal Government. The Quebec Court of Appeal held it was ultra vires the Federal Government.

IN A 5-4 DECISION, THE SUPREME COURT OF CANADA DETERMINED THAT THE ACT WAS INTRA VIRES THE FEDERAL GOVERNMENT UNDER THE CRIMINAL LAW POWER. THREE ELEMENTS MUST BE MET FOR A LAW TO BE CATEGORIZED AS VALID CRIMINAL LAW: A PROHIBITION, A PENALTY RELATED TO THE PROHIBITION AND VALID CRIMINAL LAW PURPOSE. 

Majority

Abella, Karakatsanis and Martin JJ (Majority) assert that a law will have a criminal purpose where, it in “pith and substance” represents Parliament’s response to a threat of harm to a public interest “traditionally protected by the criminal law, such as peace, order, security, health and morality, or to a threat of harm to another similar interest.” The Genetic Non-Discrimination Act responds to several public interests, namely: autonomy, equality and public health.

“Safeguarding autonomy and privacy are established uses of the criminal law power.” 

The purpose of the Act is not to target a particular industry, but rather, conduct which enables genetic discrimination. They identified significant risks to “dignity related interests in the contexts of the provision of goods and services” as individuals have an interest in deciding whether to access and disclose their genetic results with others. The information is highly personal with high risk for abuse. Further, the court identified that genetic discrimination could pose as a barrier to healthcare.

Concurring

Moldaver and Côté JJ concurred with Karakatsanis that the Act was under the head of Criminal power, however disagreed on the pith and substance of the law. The impugned provisions are backed by a criminal law purpose as they are “directed at suppressing a threat.” They assert that Act’s purpose is to protect health by “prohibiting conduct that undermines individuals’ control over the intimate information revealed by genetic testing.” In giving individuals control over their genetic information, Parliament sought to mitigate fears that the results could be used against them. Canadians choosing to forgo genetic testing out of fear can lead to preventable suffering and death. The effect of this control is the protection of health.  The provisions also protect privacy and autonomy.  

Dissent

Wagner CJ and Brown, Rowe and Kasirer JJ dissented, finding that in pith and substance, the Act was meant to regulate contracts of insurance and employment as well as the provisioning of goods and services. Health is the primary character of the law, while privacy and autonomy are derivatives. They assert that Parliament did not express a “well-defined threat” which it intended to target, rather, it focused on removing barriers to incentivize genetic testing. They suggest the impugned provision must be aimed at an “evil” effect upon the public, and that mere undesirable effects are not sufficient. While the provisions allow individuals some control over genetic information, they “do not reduce their fears surrounding genetic testing in any real measure, since they do nothing to prohibit genetic discrimination.” They acknowledge Parliament’s wide latitude for assessing harm, but there was no evidentiary foundation for harm, instead, the Act is aimed at health-promotion.

Read the full reference here.

Note: This post was written by Chelsea Buggie. This post was copy edited by Sara Little.