Genetic Non-Discrimination Act

An Act to prohibit and prevent genetic discrimination

This bill was last introduced in the 42nd Parliament, 1st Session, which ended in September 2019.

This bill was previously introduced in the 41st Parliament, 2nd Session.

Status

This bill has received Royal Assent and is now law.

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

This enactment prohibits any person from requiring an individual to undergo a genetic test or disclose the results of a genetic test as a condition of providing goods or services to, entering into or continuing a contract with, or offering specific conditions in a contract with the individual. Exceptions are provided for medical practitioners and researchers, as well as for insurance providers in respect of high-value insurance contracts if provincial laws expressly permit a requirement that existing genetic test results be disclosed.
The enactment amends the Canada Labour Code to protect employees from being required to undergo or to disclose the results of a genetic test, and provides employees with other protections related to genetic testing and test results. It also amends the Canadian Human Rights Act to prohibit discrimination on the ground of genetic characteristics.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, an excellent resource from the Library of Parliament. You can also read the full text of the bill.

Votes

March 8, 2017 Passed That the Bill be now read a third time and do pass.
March 8, 2017 Passed That Bill S-201, An Act to prohibit and prevent genetic discrimination, as amended, be concurred in at report stage .
Oct. 26, 2016 Passed That the Bill be now read a second time and referred to the Standing Committee on Justice and Human Rights.

November 22nd, 2016 / 12:35 p.m.
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Senior Vice-President, Policy, Canadian Life and Health Insurance Association

Stephen Frank

Thank you, Chair.

I'm Stephen Frank, senior vice-president of policy for the Canadian Life and Health Insurance Association. I am accompanied by my colleague, Frank Zinatelli, who is vice-president and general counsel at the CLHIA.

The CLHIA represents life and health insurance companies that account for 99% of the life and health insurance in force across Canada. The industry protects 28 million Canadians and makes benefit payments of $84 billion a year.

We appreciate this opportunity to appear before the committee as it reviews Bill S-201. As drafted, we do not support Bill S-201. Our central issue is that, over time, it would likely result in an increase in the number of Canadians who do not have insurance. In addition, we do not believe that clauses 1 to 7 of the bill are constitutional.

Let me elaborate on these issues and also highlight what the industry is doing to address concerns over the protection of individuals' genetic information, while ensuring that insurance remains affordable for Canadians.

Insurance is a good faith agreement. At the time of application, parties disclose any information that may be material to the contract so that the contract can be entered into on an equal information basis. This ensures that the applicant knows what benefits are being provided and that the insurer can properly understand the risk in order to make an informed decision about whether to provide life insurance to that individual and at what price.

This principle is protected in insurance legislation in every province and territory. Under this principle, and with the express consent of the applicant, insurers use family history, lifestyle and medical information to set prices that fairly reflect the level of risk of insurance applicants. Using genetic test results already in the hands of the applicant is a logical application of this principle. This helps ensure that the costs of insurance reflect each individual's risk and that some individuals are not inappropriately paying for or subsidizing the cost of insurance for others.

Experience tells us that if an individual gets a genetic test result that confirms that they're more likely to develop an illness or other condition earlier in life than the general public, they will seek out insurance and they will seek out more of it than they otherwise would have.

Ultimately, this will result in higher premiums for other consumers as insurers will need to increase premiums for everyone to cover these unanticipated higher costs. As you've heard already, the Canadian Institute of Actuaries has concluded that not allowing insurers to have such relevant information would over time lead to increases in term life insurance of 30% for men and 50% for women.

We know that Canadians are price-sensitive. As prices rise, many thousands of them will likely decide not to purchase insurance due to cost considerations. Therefore, a likely result of any prohibition on insurers having equal information when assessing an application for insurance, is that fewer Canadians will have protection from unfortunate events than otherwise would have.

We also do not believe that section 1 through 7 of the bill fall within the constitutional jurisdiction of Parliament. The predominant effect of those sections would be to regulate the provisions of goods and services and the terms of contracts including in the insurance industry. Sections 1 through 7 of the bill, therefore, fall clearly under the property and civil rights head of power, for which the provinces have exclusive constitutional authority.

There have been previous testimony on this bill that it could be considered constitutional based on the federal criminal power. The federal Parliament has broad and plenary power in relation to criminal matters. However, the federal Parliament cannot legislate within an area of exclusive provincial jurisdiction, simply by casting the legislation as criminal. The Supreme Court of Canada has indicated that Parliament's ability to pass criminal law that addresses health is limited. Genetic testing information does not fall under this category.

As well, please note that sections 1 through 7 of Bill S-201 target a specific category in specific contexts, including insurance and employment, and do not have a criminal law purpose. They're not aimed at prohibiting genetic discrimination generally and cannot be supported under the federal criminal law power.

Our comments are supported by the views of the Torys law firm, in an opinion that we have obtained. We have provided copies of the legal opinion to the clerk to distribute to members of this committee.

As an industry, we understand that genetic testing information is sensitive medical information. This is why the industry already has in place an Industry Code, in which all life and health insurers commit to a variety of obligations, including that no Canadian will be asked to take a genetic test as a condition of obtaining insurance.

Beyond this, however, we are committed to proactively finding a solution that balances the concerns of Canadians regarding the use of genetic testing results with the need for fair and reasonably priced insurance.

As such we've been actively working on this for many months and recently initiated discussions with the provinces on an approach where insurers in Canada would commit to not asking for or using any genetic test results for applications for life insurance policies up to $250,000. At this level more than 85% of applications for life insurance would not require any disclosure of genetic test results, and therefore, will address the concerns around this issue for the large majority of Canadians.

This approach would also keep the cost of life insurance affordable for the average middle-class family. We hope to be in a position to make an announcement with respect to this initiative shortly.

In conclusion, Bill S-201 would undermine the critical principle of equal information and would likely result in an increase in the number of Canadians who do not have insurance over time. In addition, we do not believe that the sections of the bill dealing with insurance are within federal powers. However, we understand that genetic information is sensitive to Canadians. We've started discussions with the provinces about finding a balanced solution that will appropriately protect Canadians' genetic information while also maintaining fair and reasonably priced insurance.

We appreciate this opportunity to participate in the committee's review. We would be pleased to answer any questions you may have.

Thank you.

November 22nd, 2016 / 12:30 p.m.
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Paediatrician-in-Chief, Hospital For Sick Children, As an Individual

Dr. Ronald Cohn

Thank you very much, Mr. Chair, and thanks to the committee for providing me the opportunity to speak to you.

I would like over the next few minutes to try to bring to life some of the discussions you have been having over the last few weeks, and to provide you with evidence that genetic discrimination is real. It's a frequent problem in this country that's affecting thousands and thousands of individuals.

I'm here today speaking not only on behalf of the 197 colleagues around the country who have sent a letter to all of you, but also on behalf of health care providers all over Canada, and maybe most importantly, I'm here to speak on behalf of every individual in Canada who is potentially at risk of being faced with genetic discrimination at some time in their lives.

I will provide you with three examples that address the issue that we are facing in the health care community.

I will give you an example of how genetic discrimination interferes with our ability to provide high-quality, safe, and best-standard clinical care to our patients, something that, in part, can be paralyzing for us as health care providers.

I will provide you with an example of how fear of genetic discrimination can interfere with our ability to perform the kind of research we need to actually move forward our standard of clinical care and continue to improve it, and at the same time think about the health care cost and try to keep it down.

Last but not least I will give you an example of the preventative aspect that the fear of genetic discrimination has, where without genetic testing, individuals cannot act upon certain knowledge and put measures into place that will provide protection or help to avoid a life-limiting or a life-threatening disorder.

Let me start with the first example—and it's sad for me to say that I've been in Canada for four and a half years now, and there are too many examples that I could choose from since I've moved here. I chose the example of a young girl who came to my clinic because she was thought to have a connective tissue disorder. The issue with that disorder was that she would be put at risk of her big blood vessel, coming out of her heart, the aorta, being torn, which would be a life-threatening problem.

Once I examined her, I discussed with the family the offer of genetic testing to find out whether she has a more severe or a milder form of this disorder. When I went through the consent process and we had to discuss the issue of genetic discrimination, both parents were very agitated about it. The mother was looking for a new job, and she said she was afraid that this might interfere with her ability to get that job. The parents did not have life insurance, and they said they did not want to go forward with the genetic tests. As a result, this child has to come to the hospital every three months to get an ultrasound of her heart, and is living with the fear of having the more severe form of the disease, but taking this fear over the fear of genetic discrimination.

I would like each one of you to put yourself for one minute into my shoes, knowing that I am not able to provide the right standard, best practice of care because the family declined to go forward with genetic testing. It has been paralyzing at times to me and to other health care providers to simply not do the job I learned and was trained how to do.

The second example is of a research study in which we were trying to answer the question of whether whole genome sequencing—the sequencing of your entire genome—would be a much better test to diagnose a medical condition, and also a much cheaper test for the health care system.

We approached about 200 families. I would like you to think for a moment about families who have had children for many years, most of them with very severe medical conditions, who are trying to look for an answer as to why this is happening to their child. When we offered them the chance to participate in the study, telling them, “There's a really high likelihood that we'll find an answer for you”, they were elated, excited, as you can imagine. Yet again, when it came to the consent process, over 35% of families elected not to participate because of a fear of genetic discrimination.

What that shows you is that, despite being on a search, a journey, to try to find an answer for “what is wrong with my child?”, parents elected not to go after that because of the fear that they would have issues with genetic discrimination. At the same time, it corroborated, somehow, that our study made it much more difficult to do this kind of research to actually prove that this is a better test, it's a cheaper test, and that's the test that we should offer the Canadian public if you are in a situation like this.

The last example I'm going to give you is about a young adult woman who has a family history of colon cancer. Her mom had colon cancer. She elected to do genetic testing, in order to find out whether she has a genetic form that predisposes her to this cancer.

When she went through the consent process, I don't want to repeat myself too much, again she was faced with the fact, “I can't get life insurance. What I will do is I will get yearly colonoscopies to screen myself so, in case something happens, I know that I can protect myself.”

The issue is, if you are young, you don't get yearly colonoscopies covered by OHIP if you don't have genetic evidence in order to actually be allowed to get that covered. In the end, she decided her health was more important than insurance issues. She did the genetic tests and was found positive and is in now in a situation to do yearly colonoscopies and is actually going to be able to prevent any kind of medical complication from happening.

While I'm not here to talk about industry or insurance issues, I would like everyone to consider that the preventative aspect and the preventative power of genetic knowledge gives many individuals the opportunity to take action to actually stay alive, healthy, as long as possible, and as a bi-effect, obviously, pay your insurance premium.

I hope I was able to bring to light some of the issues and, based on this, I'm going to go out on a limb and urge all of you to accept Bill S-201 without any amendments, in full, as it is, so every Canadian can have a better life, free of genetic discrimination for everyone.

Thank you.

November 22nd, 2016 / 12:20 p.m.
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Past President, Canadian Institute of Actuaries

Robert Howard

Thank you very much, Mr. Chair.

You may not have intended it, but the anti-selection that Bill S-201 would allow confers a benefit on those who test positive for certain genes. They know that they will be able to buy insurance priced to cover a risk much lower than their own risk. Suppose Bill S-201 is enacted as is, and then you learn that, say, your son-in-law carries a gene for a serious, often fatal, heart condition. Wouldn't you recommend that he buy life insurance, and a lot of it? If you answered yes, you are agreeing that anti-selection is real and that the law confers a benefit on those who test positive.

How big will the impact be? I created a model on behalf of the Canadian Institute of Actuaries, and I wrote two papers on it just to answer that very question. My model suggests that premiums for life insurance are likely to go up by 30% for males and 50% for females because of the prohibition in Bill S-201. That's a lot. That's what most of your constituents will be facing soon after the passing of Bill S-201. We believe that you didn't intend to do something that would result in a big jump in costs for your constituents. We don't think that it's in the public interest to do so.

If you're familiar with the paper written by Angus Macdonald, in 2011, the size of the impact may surprise you. I can explain why my numbers are appropriate for Canada, if you wish.

It's possible to amend the bill to avoid the unintended consequence of large increases in what Canadians will pay for insurance. Our proposed amendment is in our brief, and it's shown on the slides here. There's a table, as well, that gives the amounts that we're suggesting. The amendment sets a limit for the prohibition on requesting to see the results of a genetic test. Because the limit in our proposal is based on the average weekly earnings as published by StatsCan, it requires no recurring action from Parliament to keep it up to date. A company could use a genetic test if the amount is over the limit and if the mortality impact of the gene is found to be well supported by data. That's what's meant by “reasonable and bona fide grounds”. This chart shows the limits for the various types of insurance.

The amendment directly addresses two concerns. First, there is no restriction on buying insurance after a positive test up to the amount that the average Canadian is now buying. Second, by not applying the prohibition on larger amounts, we won't have the serious anti-selection that would result in large premiums for those who have not been tested or have tested negative.

By the way, even today, Canadians with a positive test can get a significant amount of life insurance. Group insurance is not restricted at all. Mortgage life insurance is not restricted, as opposed to what CMHC offers. There are insurance products sold with no medical questions at all; these aren't restricted. If an individual previously bought guaranteed insurability insurance, then more life insurance can be purchased with no medical evidence. Any insurance that's already owned cannot be terminated by the insurance company because of a positive test. So, fears about access to insurance are not well founded.

Note that the amendment that we will propose will not benefit the insurance companies. The companies are able to adjust their premium rates to protect their own profits.

I don't expect that their profits will, in the long run, be materially different if Bill S-201 is defeated, if it passes as is, or if it's amended as we propose. It's the public that will be hurt, but only if Bill S-201 passes as is. Our proposed amendment would protect.

Thank you, Mr. Chair.

November 22nd, 2016 / 12:20 p.m.
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Jacques Boudreau Chair, Genetic Testing Committee, Canadian Institute of Actuaries

Thank you, and thank you for this opportunity.

The Canadian Institute of Actuaries is dedicated to serving the public interest through the provision of actuarial services and advice of the highest quality. The institute specifically holds the duty of the profession to the public above the needs of the profession and its members.

The CIA has applied actuaries' unique skill set to genetic testing and its potential impacts on the Canadian public. I stress that we are not here to speak on behalf of the insurance industry.

The first problem with the bill is that it facilitates anti-selection. There are many components to a robust insurance system and one of them is the ability of the insurer to evaluate an individual's risk based on many inputs, including a variety of medical tests, and placing those with similar risk profiles in a distinct pool. This is a process based on actuarial and medical science that can be best described as differentiation, a foundational insurance concept used for centuries. It insures that for fairness considerations people facing similar risks pay similar premiums. This bill would undermine this time-tested process and introduce the likelihood of pervasive anti-selection, which is the ability of one party to a contract to take advantage of information that is not available to the other party.

The second problem with the bill is that it is discriminatory. When purchasing insurance, Canadians facing a reduced life expectancy discovered through non-genetic medical means such as an EKG or an X-ray must disclose the information they have been asked, and may be declined for insurance. However, under this bill, those with similarly reduced life expectancy discovered through genetic tests may withhold the results and get the insurance they applied for. This distinction is not based on sound actuarial and medical principles. It is completely arbitrary and as such represents the worst form of discrimination.

Let me discuss briefly the experience of the Affordable Care Act in the United States, also known as the ACA or Obamacare, because it's very relevant to this bill. One of its key elements is that insurers are legally required to provide coverage to all applicants regardless of medical history. The premiums basically reflect the age of the insured and the experience within a region, but sex and pre-existing conditions are ignored. This is a textbook condition to encourage anti-selection, which led me and many actuaries and economists to predict the following: one, large spikes in premiums for many people; and two, many people refusing to participate in the ACA and instead paying the fine for doing so, and large losses for insurers. That is exactly what has happened.

Increases of as high at 65% have taken place. An insurance death spiral resulted as the people remaining in the ACA required so much medical care that many insurers lost money no matter how much they raised premiums. Eventually insurers had no choice but to pull out of the program. Aetna and UnitedHealth and many other insurers have done so after massive losses.

The ACA experience is very relevant because its key element is similar to the condition that Bill S-201 would create. In fact, under the bill, the ACA's key element could be rewritten as “insurers are legally required to provide coverage to all applicants regardless of the results of genetic tests, and must set premiums based on age, sex, and smoking status”, rather than “age, sex, smoking status, and relevant genetic information”.

As you can see, the two wordings are close, and it would be remarkable if the bill didn't have similar impacts on the people of Canada who buy individual life insurance. American lawmakers ignored expert advice with the negative results I just mentioned. We can only hope that the proper lesson has been learned so as to avoid a similar debacle in Canada.

Thank you.

November 22nd, 2016 / 12:05 p.m.
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Liberal

The Chair Liberal Anthony Housefather

Thank you.

I have one short question, if it's okay with the committee.

The actuaries' association is coming before us, and they're recommending to reinsert clauses in Bill S-201 that were removed from previous iterations, which would have specifically governed the insurance industry, in order to say that it does not apply to insurance contracts over a specific value.

As I understand it from your testimony, Professor Thibault,

I imagine you believe that, if we do this, it will make certain parts of the law unconstitutional.

November 22nd, 2016 / noon
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Liberal

Iqra Khalid Liberal Mississauga—Erin Mills, ON

Thank you.

Professor Ryder, in your testimony before the Senate committee, you noted that the pith and substance of Bill S-201 is to prohibit genetic discrimination. Now, my understanding is that the prohibition of discrimination falls to whichever order of government has jurisdiction to regulate that area in which the discrimination occurs. In this case then, wouldn't we be talking about discrimination in the area of contracts in the provision of goods and services, which would be under provincial jurisdiction?

That's the question. Do you think that this falls within provincial jurisdiction, by way of discrimination being controlled by the area of that law that falls before that jurisdiction?

November 22nd, 2016 / noon
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Liberal

Iqra Khalid Liberal Mississauga—Erin Mills, ON

Thank you, Chair.

Thank you, gentlemen, for coming in today. It was fascinating to listen to all of your perspectives.

With respect to making law, I find that we can never look at anything in a vacuum and we always have to look at the global and the throughout-the-country impact, not just for that specific group but also how it impacts other groups.

Professor Hogg, if I may, I'll take you through a bit of a scenario. Suppose that Bill S-201 has become law, and a father and a son both apply for a job. The father has a medical test disclosing that he has Huntington's disease, and the son has a genetic test disclosing that he has a predisposition to Huntington's disease. As part of the employment conditions, they are both required to disclose their results. Let's say that they both don't get the job based on their medical results and on their genetic results. One would have remedy in the Canadian Human Rights Tribunal and the other would have remedy in the courts. Can you comment on that, please?

November 22nd, 2016 / 11:50 a.m.
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Assistant Dean and Counsel, Civil Law Section, University of Ottawa, As an Individual

Pierre Thibault

Yes, okay.

I do not consider it abnormal for there to be overlaps in jurisdiction in a federation. Consider health. Consider criminal law. I will refer to the decision in Canada Western Bank v. Alberta. Since banks sell insurance, there is an overlap when they promote insurance. The same thing applies to regulation, whether federal or municipal, as regards the environment. There will be overlaps.

In my opinion, the effects of Bill S-201 are purely incidental to provincial jurisdiction. If the provinces want to legislate, we can say that they have the jurisdiction to do so under the double aspect doctrine. All I am saying is that the incidental effects doctrine can apply. If we conclude that jurisdiction over criminal acts is not sufficient, we can use the ancillary powers doctrine initially to validate Bill S-201. If we conclude that the jurisdiction in criminal law is sufficient, we can say that it has incidental effects on provincial jurisdiction as regards private law. Once again, this justifies the constitutional validity of Bill S-201.

November 22nd, 2016 / 11:50 a.m.
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NDP

Alistair MacGregor NDP Cowichan—Malahat—Langford, BC

Thank you, Mr. Chair.

Professor Thibault, can you say a little more about how the pith and substance of Bill S-201 relates to how the ancillary powers doctrine might also apply? We know when there's a potential encroachment on provincial powers we have to make a decision on the proper standard for such a relationship.

November 22nd, 2016 / 11:25 a.m.
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Assistant Dean and Counsel, Civil Law Section, University of Ottawa, As an Individual

Pierre Thibault

Thank you, Mr. Chair, for inviting me to appear before the committee today with regard to Bill S-201, which seeks to prohibit and prevent genetic discrimination.

The objective of the bill is in my opinion commendable and warrants consideration. As my colleagues have pointed out, however, we have to consider the legislative impact of this bill as regards the Constitution of Canada. I have examined the new version of Bill S-201 and consider it constitutionally valid.

As I stated when I appeared before the Standing Senate Committee on Human Rights on December 11, 2014, I do not see anything that prevents Parliament from amending the Canada Labour Code and the Canadian Human Rights Act—on the contrary, in fact—and adding provisions to prohibit genetic discrimination without encroaching unduly on provincial jurisdiction for insurance. That is what the new Bill S-201 does.

I also thought that there might be debate about the scope of Parliament's power with regard to criminal law. In my opinion, there are two other ways of justifying the constitutionality of Bill S-201. The first is based on the incidental effects doctrine and the second on the ancillary powers doctrine. Let me explain what these two doctrines entail.

Under the incidental effects doctrine, the constitutionality of a law can be justified based on its purely incidental effects on provincial jurisdiction. Here is what Chief Justice McLachlin said in the Lacombe decision:

The incidental effects rule, by contrast, applies when a provision, in pith and substance, lies within the competence of the enacting body but touches on a subject assigned to the other level of government. It holds that such a provision will not be invalid merely because it has an incidental effect on a legislative competence that falls beyond the jurisdiction of its enacting body.

Under the ancillary powers doctrine, on the other hand, a law can be justified that encroaches on the jurisdiction of the other order of government to the extent that the provisions in question are ancillary and necessary to implement the law effectively and adequately. This means that the law is entirely valid.

This is how Chief Justice McLachlin explains it, once again in Lacombe:

The ancillary powers doctrine applies where, as here, a provision is, in pith and substance, outside the competence of its enacting body. The potentially invalid provision will be saved where it is an important part of a broader legislative scheme that is within the competence of the enacting body.

One could deduce from these explanations that the ancillary powers doctrine and the incidental effects doctrine of a law appear to contravene the exclusive areas of jurisdiction set out in sections 91 to 96 of the Constitution Act, 1867.

It should be noted that the Supreme Court is not in favour of a strict interpretation of this doctrine of exclusive areas of jurisdiction since this would run counter to the principle of cooperative federalism. In Bank of Montreal v. Marcotte, for instance, Justices Rothstein and Wagner state:

A broad application of the doctrine is in tension with the modern cooperative approach to federalism which favours, where possible, the application of statutes enacted by both levels of government.

On these grounds and in view of the state of Canadian constitutional law, it appears to me that Bill S-201, as revised and amended, is constitutionally valid.

Thank you for your attention. I will be pleased to try to answer your questions.

November 22nd, 2016 / 11:15 a.m.
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Prof. Hugo Cyr

Thank you very much, Mr. Chair, for inviting me to be here today.

This is a topic that I have been thinking about for some time. Last night, I found in my archives a paper on genetic discrimination that I did in 1994 for a certain Professor Irwin Cotler. You will understand therefore that I am in agreement with the principle and objective of Bill S-201. I do however have a number of reservations, specifically as regards the constitutionality of clauses 3, 4, 5, 6, and 7.

I also agree with the letter published by the Minister of Justice regarding the validity of clauses 8, 9, and 10. In my opinion, these clauses are valid and do not pose any constitutional problems.

There are issues relating to legislative policy that have to be considered since there will be an overlap in jurisdiction, namely in labour law and the jurisdiction that will be given to human rights tribunals. This will create a conflict. I will talk in particular about clauses 3, 4, 5, 6, and 7.

In examining the substance of a provision, we have to look at the title, to be sure, but we must also look at what is in it and what exactly it does. Clause 3 prohibits any person from requiring an individual to undergo a test. It is possible to undergo a test to obtain services. The bill does not prohibit it, but it does prohibit requiring someone to take a test as a condition of obtaining services.

Nor do these same provisions prohibit the use of genetic information obtained with written consent for purposes of clarity. Clauses 3, 4, 5, 6, and 7 of the bill do not prevent discrimination on the basis of genetic information. It does, however, prohibit this in the two other parts. Under labour law, a person cannot be punished or have a benefit withdrawn based on test results.

The Canadian Human Rights Act prohibits discrimination based on genetic characteristics, but not in the first part, which simply prohibits requiring someone to provide information for the purpose of obtaining a service or a contract. The real legal effect is to prohibit requiring someone to take a test, to allow information to be disclosed voluntarily, and to allow information to be used if it is provided voluntarily.

The conditions under which a contract is formed or those affecting what in civil law are called personality rights traditionally fall under provincial jurisdiction, as stipulated in section 92.13 of the Constitution Act, 1867. Moreover, section 3 of the Civil Code of Quebec provides as follows: “Every person is the holder of personality rights, such as the right to life, the right to the inviolability and integrity of his person, and the right to the respect of his name, reputation and privacy.” Section 3 is an integral part of the first book of the Civil Code of Quebec, entitled “Persons”. There is also a separate chapter on respect of privacy, starting at section 35.

I will read you a passage from a key decision that elucidates what criminal law is and what can be done under it. This passage is from the Attorney General for Ontario v. Reciprocal Insurers.

In accordance with the principle inherent in these decisions their Lordships think it is no longer open to dispute that the Parliament of Canada cannot, by purporting to create penal sanctions under s. 91, head 27, appropriate to itself exclusively a field of jurisdiction in which, apart from such a procedure, it could exert no legal authority, and that if, when examined as a whole, legislation in form criminal is found, in aspects and for purposes exclusively within the Provincial sphere, to deal with matters committed to the Provinces, it cannot be upheld as valid. And indeed, to hold otherwise would be incompatible with an essential principle of the Confederation scheme....

In this case, it was argued that selling insurance without obtaining a federal license was a crime. The court ruled that it was not. Selling insurance falls under provincial jurisdiction. It is not possible, simply by creating a prohibition and a sanction, to cause the matter to fall under federal jurisdiction under criminal law. In the present case, we cannot consider that requiring someone to give genetic information in order to obtain a service automatically falls under criminal law simply because a sanction is added to the prohibition. As my colleagues have pointed out, we must determine whether this prohibition is criminal in nature.

Allow me to digress for a moment on this subject. If, despite the term used, the subject of the bill is not the transfer of genetic information but rather rights and freedoms and the right to equality, we must remember that these rights do not fall under the jurisdiction assigned to one legislature or another, but instead they fall under a jurisdiction that is ancillary to another. We must therefore stipulate what this other jurisdiction is.

Traditionally, this would be a jurisdiction associated with private law, civil law, and contracts law. That is why the provinces are responsible for the general rules applicable to the right to equality. I would point out in passing that, even though it prohibits a series of discriminatory actions, section 20.1 of the Quebec Charter of Rights and Freedoms provides that in such contracts or plans, that is, insurance contracts or pension plans, “[...] the use of health as a risk determination factor does not constitute discrimination within the meaning of section 10.”

Rightly or wrongly, a provision specifically provides that using health status to determine the extent of risk is not a discriminatory act. Professor Hogg told us earlier that, in his opinion, this is an issue that falls under criminal law. In his book, he states in fact that it may be possible to criminalize discrimination.

He said that under the criminal law power and in making that classification, the courts will look for the ingredients of criminal law—the prohibition, the penalty, and typically, criminal public purpose—and not primarily the law's impact on discrimination.

The criminal nature cannot be deduced simply from the fact of discrimination. Moreover, what constitutes criminal nature?

We have to fight against an evil. We saw the reference on firearms and we discussed that. We talked about the three criteria, which are prohibition, penalty and fighting against a criminal purpose. The courts have pointed out many times that this must not be interpreted too broadly so as not to deplete provincial jurisdiction.

In the Reference re Assisted Human Reproduction Act, the term “reprehensible conduct” is used. Although this decision is fairly complex since there was no consensus, there was agreement on the term “reprehensible conduct”. The term “undesirable conduct” is used often. It is difficult to talk about reprehensible or undesirable conduct in this instance when the Assisted Human Reproduction Act itself recognizes the possibility of providing information voluntarily. It is hard to say that disclosing genetic information is undesirable or reprehensible conduct in itself when section 7 of the act allows it.

I can answer other questions, but, before I conclude, I would stress that in this reference, in examining whether elements are criminal in nature, the decision refers to “conduct that is reprehensible or represents a serious risk to morality, safety or public health”. In this case, the rules on consent in civil law is emphasized. The Supreme Court ruled in this case that the provisions pertaining to information and patient consent are all unconstitutional.

The concern is that there could be a legislative gap. We must remember, however, that our laws prohibit discrimination on the basis of disability, which includes not only an actual disability, but also a potential or feared disability, and even the perception of such a disability. This is established in a Supreme Court decision.

Thank you very much.

November 22nd, 2016 / 11 a.m.
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Prof. Bruce Ryder

Thank you very much, Mr. Chair, and thank you, honourable members.

It's a great privilege to have the opportunity to appear before you today to speak about the constitutionality of Bill S-201, which is a very important initiative. In my view, the doubts that have been expressed in some quarters about the constitutional validity of the bill are a mistake.

I believe it's a valid exercise of Parliament's power. In particular, the more controversial parts of the bill from a constitutional point of view—not from my perspective but from the perspective of some—sections 3 through 7, the part that's going to be a new free-standing genetic nondiscrimination act is a valid exercise of Parliament's power to enact laws in relation to criminal law because it consists of, in its dominant characteristic, putting in place prohibitions in sections 3 through 6, and a penalty provision in section 7 for the purpose of protecting the health of Canadians.

I'm going to say a few words about the scope of section 91(27), and a few words about the bill itself. I'd like to emphasize the importance of a constitutional doctrine in this context, which we refer to as the double aspect doctrine.

What we mean by that is that there are some subject matters, like genetic discrimination, that can be addressed by both levels of governments within their respective spheres of jurisdiction. This subject matter can be addressed by Parliament in part through it's criminal law power, and of course, it also falls within the jurisdiction of the provinces. I hope I can offer some clarity on that point as well.

First of all is the criminal law power, and you're going to hear from the other members of the panel about its scope. This is a very broad federal power that has been defined by the courts as allowing Parliament to enact laws that have, as their dominant characteristic, putting in place prohibitions coupled with penalties for a typically criminal public purpose, such as the protection of public peace, order, security, health, and morality.

I'm quoting the leading decision of the Supreme Court of Canada on the scope of the criminal law power, a decision known as the “margarine reference”, which was decided by the Supreme Court in 1949 and has been the leading case that has been followed by the courts ever since.

The court has repeatedly emphasized that the criminal law power is a very broad power. It has served over the years to uphold, of course, many provisions of the Criminal Code, but many provisions of other statutes as well.

In my testimony to the Senate committee earlier this year, and in the brief that I've prepared for this committee as well, I've listed some examples of federal statutes that have been upheld pursuant to the criminal law power. They include provisions of the Food and Drugs Act, the Tobacco Act, the Firearms Act, the Youth Criminal Justice Act, the Controlled Drugs and Substances Act, provisions of the Criminal Code that relate to the securities trade, the prohibited activities provisions of the Assisted Human Reproduction Act, and part V of the Canadian Environmental Protection Act, which deals with toxic substances. Those are just some examples from the case law.

It's also true that the provinces have jurisdiction in relation to property and civil rights pursuant to section 92(13) of the Constitution Act 1867. This too has been a provision that the courts have interpreted broadly, and it includes regulation over most aspects of the regulation of the insurance industry. It includes regulation of the labour relations of most employers because most employers fall within provincial jurisdiction.

It's also true that the provisions of the genetic non-discrimination act, in sections 2 through 7 of this bill, have a significant impact on activities that fall within provincial jurisdiction, such as the insurance industry and activities of provincially regulated employers. That, however, is true of most provisions of the Criminal Code, or at least many provisions of the Criminal Code; that is, they deal with matters like theft, which is also in relation to property which is a provincial area of jurisdiction.

There are significant portions of the Criminal Code that deal with the solemnization of marriage, the conjugal offences, and the unlawful solemnization of marriage. Again, this is a provincial subject matter, pursuant to section 92(12).

In other words, we can say that much of the Criminal Code deals with matters that are double aspect matters, meaning they can be regulated by the federal Parliament pursuant to its criminal law power with regard to particularly harmful activities, and can be regulated from a provincial point of view pursuant to jurisdiction over property and civil rights. Therefore, I don't think we need to dispute whether or not this is a law that will have important impacts on provincial areas of jurisdiction. It will, but that's not determinative of its constitutional validity.

To determine its constitutional validity we have to ask if its dominant characteristic is to put in place prohibitions coupled with penalties in order to combat harmful conduct or to combat a social evil, or should we be worried that this is a kind of surreptitious attempt for Parliament to regulate the insurance industry, or to regulate provincial employers? I don't believe there is any reason to conclude that is the case. If that were the case, we would say this is colourable legislation, that its form is disguising its true purpose, which is to regulate provincial matters as opposed to suppressing harmful conduct or to suppress a social evil that we think is damaging to Canadians' health.

That's the key question, not whether this is a law that has an impact on provincial areas of jurisdiction. Of course it does, but that's true of most of the Criminal Code, for example.

The question we have to focus on is the pith and substance or dominant characteristic of the provisions of the bill. Is the dominant characteristic putting in place prohibitions coupled with penalties to protect the health of Canadians, or is it the regulation of a subject matter that falls within provincial jurisdiction? To determine pith and substance, the courts will examine the purpose of legislation as well as its effects, the title of the legislation as set out in clause 1 of the bill, the “Genetic Non-Discrimination Act” is important.

Clauses 3, 4, and 5 put in place prohibitions on requiring individuals to undergo genetic testing, on requiring them to disclose the results of a genetic test, and on the use of genetic test results without written consent. The aim of these provisions is to promote health and personal security and to protect privacy by protecting individuals' control over the decision of whether to undergo testing and over the uses of genetic test results. These prohibitions apply to any person. They do not mention any particular industry or type of actor.

Clause 6 provides exemptions from the prohibitions for health care practitioners and researchers, and clause 7 puts in place serious penalties for the violation of the prohibitions in clauses 3 through 5. In my view, it is evident that the dominant characteristic of these provisions is to put in place prohibitions coupled with penalties aimed at protecting individuals from threats to health and personal security posed by the use of genetic information without their consent.

The pith and substance of these provisions fall squarely within the definition of criminal law followed by Canadian courts ever since the margarine reference. They do not resemble the detailed and extensive regulation of assisted reproduction services, for example, of the type that were declared invalid by the Supreme Court of Canada in the Assisted Human Reproduction Act reference, or the detailed regulation of the insurance industry that was declared invalid in a series of cases decided in the first half of the 20th century, where the federal Parliament was seeking to assert jurisdiction over the insurance industry more generally.

Rather, clauses 3 through 7 of Bill S-201 are very similar in their nature and objectives to the prohibited activities provisions, including the prohibitions on the use of reproductive material without consent that were upheld by the Supreme Court of Canada in the Assisted Human Reproduction Act reference.

I'll be happy to go into further detail about the case law, or other aspects of jurisdiction of Parliament over human rights laws generally, or over discrimination generally, and how federal jurisdiction interacts with provincial jurisdiction in discussion with members of the committee.

Thank you very much.

November 22nd, 2016 / 11 a.m.
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Liberal

The Chair Liberal Anthony Housefather

Good morning, ladies and gentlemen.

It is a pleasure to convene this session of the Standing Committee on Justice and Human Rights as we resume our study on Bill S-201, an act to prohibit and prevent genetic discrimination.

I'd like to welcome Mr. Lukiwski who is joining us this morning.

It's a pleasure to have such an esteemed panel of scholars here to share with us their views on constitutionality and policy on Bill S-201.

Professor Ryder, welcome.

November 17th, 2016 / 12:50 p.m.
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NDP

Alistair MacGregor NDP Cowichan—Malahat—Langford, BC

I'm going to just read a quick quote, and I'd like to have all of you respond. On Tuesday, we had the sponsors of the bill here. Mr. Oliphant stated, and I quote here:

I have been a chair of a human rights commission. The onus in a human rights complaint is put on the complainant. It's on the patient, who may actually be struggling and may not have the financial resources. The act would—

and that's Bill S-201

—ensure that the crown is acting on behalf of the population to ensure that we have strong deterrents to this form of discrimination, and it would make it fundamentally important for all Canadians....

Ms. Gibbons, starting with you, I'd like to hear comments from all of you on that specific quote, whether you agree with it, and so on.

November 17th, 2016 / 12:45 p.m.
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General Counsel and Senior Government Advisor, Centre for Israel and Jewish Affairs

Richard Marceau

It is my professional opinion that Bill S-201 would stand a constitutional test based on the division of power, and I agree with your colleague, former minister Nicholson, who said earlier that the creation of such a criminal offence falls squarely within federal jurisdiction.