Sep 11, 2020

Reference re Genetic Non-Discrimination Act. 2020 SCC 17

Reference re Genetic Non‑Discrimination Act, 2020 SCC 17 (CanLII)


In 2017 Parliament enacted the Genetic Non-Discrimination Act (the Act). 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.”

The Act also creates certain prohibitions relating to genetic tests. Individuals and corporations cannot force individuals to take genetic tests or disclose genetic test results as a condition of obtaining access to goods, services and contracts; cannot refuse an individual access to goods, services and contracts because they have refused to take a genetic test or refused to disclose the results of a genetic test; and cannot use individuals’ genetic test results without their written consent in the areas of contracting and the provision of goods and services.

Physicians, pharmacists or other health care practitioners are exempt from these prohibitions, as are people conducting certain kinds of research. Doing anything prohibited by the act is a criminal offence. The Act also amends the Canada Labour Code to protect employees from discrimination on the basis of genetic testing, and amends the Canadian Human Rights Act to add genetic characteristics as a prohibited ground of discrimination.

The Government of Quebec referred the Constitutionality of sections 1 to 7 of the Act to the Quebec Court of Appeal, asking whether these provisions were ultra vires the jurisdiction of Parliament over criminal law under s. 91(27) of the Constitution Act, 1867. The Court of Appeal answered in the affirmative and declared the law unconstitutional. The Canadian Coalition for Genetic Fairness, an intervener in the Court of Appeal Case, appealed the decision to the Supreme Court.

Verdict: Appeal allowed. The act is intra vires Parliament’s power over criminal law and therefore constitutional.

Sidebar: Reference Cases

Courts in Canada are empowered to hear reference questions, which are questions of law that do not arise out of any legal dispute between parties. At the Supreme Court of Canada, these questions are delivered by the Governor General in accordance with the Supreme Court Act. In the Provinces, the power of Superior Courts or Courts of Appeal to hear reference questions come from their respective local legislation. Once a provincial court has given their answer to a reference question, there is an automatic right to appeal the decision to the Supreme Court.

Sidebar: The Division of Powers

To determine whether a law falls within the authority of Parliament or a provincial legislature to make, a court must first characterize the law and then, based on that characterization, classify the law by assigning it to one of the federal and provincial heads of power under sections 91 and 92 of the Constitution Act, 1867.

In the past, this exercise was limited by the “Watertight Compartments” theory. That is, that the federal government and the governments of the provinces each had their own separate powers and neither can intrude upon the power of the other. That has now changed, with the courts allowing some interplay and flexibility in how the heads of power are interpreted as the world has become more nuanced and complicated.

Municipal governments are considered creations of the provinces and have their powers delegated to them by the provincial legislature. They have no constitutional status.

To properly characterize the law, a court must identify the law’s “pith and substance”; determine the law’s true subject matter, even where that may not be immediately apparent or stated up front. The court will characterize the specific provisions challenged, rather than the legislative scheme as a whole, to determine whether they are validly enacted. Identifying a law’s pith and substance requires considering both the law’s purpose and its legal and practical effects. The law’s matter must be precisely defined, with a focus on the law itself and what it is really about.

Determining a law’s purpose requires looking at both internal and external evidence. Internal evidence includes the text of the law, and the provisions that expressly set out the law’s purpose. External evidence includes statements made during parliamentary proceedings and what is written in government publications. Legal and practical effects are also relevant to identifying pith and substance. Legal effects flow directly from the provisions of the statute, and practical effects flow from its application.

Once the pith and substance of the law has been determined, it must then be assigned to a “head of power” under sections 91 or 92 of the Constitution. A partial list of the exclusive powers of the Federal government include:

  • Taxation;
  • Postal Service;
  • Defence;
  • Quarantine; and
  • Criminal Law

The Provincial governments, meanwhile, have the exclusive power over, among other topics:

  • Municipalities;
  • Property and Civil Rights;
  • Hospitals;
  • Incorporation of Properties; and
  • Matters “of a merely local or private nature”

If the law can be placed within an appropriate head of power, it is considered intra vires (“within the powers”) of that government and therefore constitutional. If not, it is ultra vires (“beyond the powers”), and therefore invalid.

Majority Decision (3 Judges)

The majority concluded that Parliament had the power to enact the Genetic Non-Discrimination Act under s. 91(27) of the Constitution Act, 1867. The pith and substance of the challenged law is to protect individuals’ control over their detailed personal information disclosed by genetic tests. The purpose for this was to address Canadians’ fears that their genetic test results will be used against them and to prevent discrimination based on that information. This matter is properly within Parliament’s power over criminal law. The provisions are supported by a criminal law purpose because they respond to a threat of harm to several overlapping public interests traditionally protected by the criminal law – autonomy, privacy, equality and public health.

The court looked at the parliamentary debates around the bill. They provided strong external evidence that the purpose of section 1 to 7 is to combat genetic discrimination. The debates make it clear that the immediate mischief that the law was intended to address was the lack of legal protection for the results of genetic testing. Those concerns correspond to the title of the Act and the text of the prohibitions. The simultaneous amendments to the Canada Labour Code and the Canadian Human Rights Act suggest a coordinate approach to tackling this issue.

Having determined the purpose the court then turns to the law’s effects. The most direct and significant practical effect of the prohibitions is to give individuals control over the decision of whether to undergo genetic testing and over access to the results of genetic testing. They do so by preventing genetic testing requirements from being imposed on individuals as a condition of access to goods, services and contracts, and by preventing individuals’ genetic test results from being used non-consensually when they seek to obtain goods and services and enter into contracts.

The court then moved to the classification stage, placing the pith and substance of the law under one of the heads of power in the Constitution. Section 91(27) of the Constitution Act gives Parliament the exclusive authority to make laws in relation to criminal law. A law will be valid criminal law if, in pith and substance, (1) it consists of a prohibition, (2) accompanied by a penalty and (3) backed by a criminal law purpose. Here, there are unquestioningly prohibitions accompanied by penalties, leaving the only remaining issue as whether sections 1 to 7 of the Act are supported by a criminal law purpose.

A law is backed by a criminal law purpose if it represents Parliament’s response to a threat of harm to public interests 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 standard used is that Parliament is addressing a “reasoned apprehension of harm” to one or more of these public interests. The degree of seriousness of the harm does not need to be proven to make criminal law.

The Act represents Parliament’s response to the risk of harm that genetic discrimination poses to several public interests traditionally protect by the criminal law: autonomy, privacy, equality, and public health. Genetic discrimination poses a risk of harm to autonomy and personal privacy because individuals have an interest in protecting their genetic information from others. Genetic test results potentially reveal highly personal information about the individual tested and there is immense potential for abuse. Genetic discrimination also threatens the fundamental social value of equality by stigmatizing and burdening individuals because of inherited genetic characteristics. The court stated that protecting these core interests is an established, proper use of the criminal law power.

Concurring Decision (2 Judges)

Moldaver and Côté agree that sections 1 to 7 of the Act represent a valid exercise of Parliament’s power over criminal law. However, they disagree with the majority’s classification of the pith and substance of the law.

Their conclusion is that the pith and substance of sections 1 to 7 of the Act is to protect health by prohibiting conduct that undermines individuals’ control over the information revealed by genetic testing. By giving people control over the decision to undergo genetic testing and over the collection, disclosure and use of the results of such testing, Parliament sought to mitigate their fears that their genetic test results could be used against them in a variety of contexts. Parliament had evidence of the harm this fear was causing to the health of individuals and their families.

This is a valid exercise of Parliament’s power over the criminal law. The criminal law purpose is suppressing a threat to health, specifically the detrimental health effects caused by people foregoing genetic testing out of fear as to how the information revealed by such testing could be used.

Dissenting (4 Judges)

The dissenting judges wrote that the appeal should be dismissed and the law found to be ultra vires parliament’s authority over criminal law. Sections 1 to 7 were not enacted constitutionally. Rather, they fall within the province’s jurisdiction over property and civil rights under s. 92(13).

They stated that the pith and substance of sections 1 to 7 of the Act is to regulate contracts and the provision of goods and services, in particular contracts of insurance and employment, by prohibiting some perceived misuses of one category of genetic tests. Sections 1 to 7 do not satisfy the substantive component of criminal law – a valid criminal law purpose – because Parliament has neither articulated a well-defined threat that it intended to target, nor did it provide any evidentiary foundation of such a threat. Instead sections 1 to 7 substantially affect the law of insurance as well as human rights and labour legislation.

The court first examined the internal evidence. Nothing in the law itself supports a conclusion that sections 1 to 7 seek to prohibit or prevent discrimination on genetic grounds. There is also no evidence that Parliament’s dominant purpose as focused on privacy and autonomy. No preamble or purpose sections exist to guide the inquiry into the law’s dominant purpose.

The text of sections 1 to 7 do not prohibit the use of genetic information that was disclosed voluntarily or obtained through other means, and they do not prohibit genetic discrimination. Sections 1 to 7 are limited in scope to a category of certain health-based genetic tests, as defined in section 2.

The court turned to external evidence next. The amendments to the Canadian Human Rights Act and Canada Labour Code in sections 8 to 10 of the Act create prohibitions against genetic discrimination which are absent from sections 1 to 7 of the Act [note that sections 8 to 10 are not challenged in this case, only sections 1 to 7]. Sections 1 to 7 offer limited control to individuals over their genetic information, but they do not reduce their fears surrounding genetic testing in any real measure, since they do not prohibit genetic discrimination.

Next, there are the legislative debates. They may indicate the legislature’s intent when crafting the law, but they cannot stand in for the text of the Act itself. In this case, the debates emphasize that sections 1 to 7 were included as a way to encourage Canadians to undergo genetic tests by mitigating the fear of misuse, in particular in respect of insurance and employment.

In light of the evidence, the court concludes that the true purpose of sections 1 to 7 is to regulate contracts, particularly contracts of insurance and employment, in order to encourage Canadians to undergo genetic tests without fear that those tests would be misused. This will ultimately improve the health of Canadians.

With the purpose determined the court moves on to the effects. The dominant effects of sections 1 to 7 concern the regulation of insurance and promotion of health rather than in the protection of privacy and autonomy or the prevention of genetic discrimination.

The sole remaining issue was whether there was a valid criminal law purpose. When determining if there is a valid criminal law purpose, there are three questions. First, does the law relate to a public purpose, such as public peace, order, security, health, or morality? Second, did Parliament articulate a well-defined threat to be suppressed or prevented by the impugned legislation? Third, is the threat “real” in the sense that Parliament had a concrete basis and a reasoned apprehension of harm?

Regarding the first question, the dissenting judges agreed that the provisions can be said to relate to health, which is a valid public purpose. The provisions also have an impact on privacy and autonomy, but the scope of the definition of “genetic test” in s. 2 means that health is the primary character of the law and these other subjects are derivative.

Regarding the second question, the court states that Parliament must clearly define the scope of the threat it seeks to suppress. This requirement is particularly important when matters have provincial aspects, such as health, to preserve the balance of federal and provincial powers. To say the pith and substance merely related to health is not sufficient. It must also involve suppressing an evil or undesirable effect upon the public.

In this case, there is no well-defined public health evil or threat to be suppressed. The objective of the legislation is to promote beneficial health practices. It seeks to encourage Canadians to undergo genetic testing, which may then result in better health outcomes. This will not suffice as a valid criminal law purpose. The mere fact that genetic testing is a novel development does not, on its own, bring it within the purview of the criminal law. Moreover, a gap in provincial legislations across the country is not a well-defined threat that justifies recourse to the criminal law.

Finally, on the third question, the reasoned apprehension of harm, there is no adequate evidentiary foundation here that the law is aimed at preventing harm. Rather, Parliament seeks to improve the health of Canadians by making them aware of underlying conditions they may have and does so by encouraging the use of genetic tests.