Justice Committee on Nov. 15th, 2016

[Ahmed Hussen, Liberal, York South—Weston, ON]

Is there any time left?

[The Chair, Liberal, Anthony Housefather]

You have two minutes left.

[Ahmed Hussen, Liberal, York South—Weston, ON]

Okay, wonderful.

I think, Mr. Oliphant, that you indicated there was no opposition from the provinces. I would like to explore that a little further.

[Rob Oliphant, Liberal, Don Valley West, ON]

Sure.

Both Senator Cowan and the clerk of the committee at the Senate sent letters to the provinces and territories. I believe seven of the 10 jurisdictions actually responded, either strongly in favour or neutrally. No one had a negative or adverse response to it. Some chose not to say anything. That would be the first thing.

Moving on from that, in discussions with individual ministers of health in Ontario, Nova Scotia, and elsewhere, that has been reiterated.

One of the issues, I think, is that there is a kind of a wonderful flexibility in Canada in the way our Constitution works. I think it's partly because when I see unanimity, particularly in the House of Commons, that tells me there's an instinct in the House to use our power to do this. I can't know what's in the mind of every MP, but I think it was that this is important enough that we should act.

I think the provinces are going to end up saying—and we can't determine that for sure—that they're glad we acted, so they don't have to do all of that. They may have to do some particular things. I would like to see them insert those words in their human rights acts as well. I don't think that would be out of place either. It's a strong signal. We're saying it wouldn't be as necessary. Madam Landry may have a comment on that as well. We think there's a sentiment in both Houses that we want to do this as Canadians helping Canadians.

[James S. Cowan]

Might I add just one comment?

[The Chair, Liberal, Anthony Housefather]

Sure.

[James S. Cowan]

We'd be happy to provide copies of the materials—we provided this to the minister before of course, and it was provided to the Senate committee—and the sense you get from the letters is the provinces are looking at their human rights codes and their labour codes, assuming that this bill will pass, and they're seeing what changes they might need to make. We haven't suggested the changes to them, if any, that they need to make at the provincial level. That's not our responsibility. But there's no indication—and let me reinforce that—from any source, either written or oral or through the back door or under the table, that any province or territory has any concern and has any expectation other than we will do the right thing and pass this bill.

[Ahmed Hussen, Liberal, York South—Weston, ON]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thanks very much, Senator Cowan. Our clerk will obtain from the clerk of the Senate the letters that were obtained by the Senate human rights committee.

Mr. MacGregor.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Senator Cowan, I'd like to open by congratulating you for getting to this stage. You've been working on this issue for a long time, going through the Senate. Last week I was talking to school groups in my riding and outlining the process, the very long route a bill must take before it reaches royal assent. I think we have to respect the version of the bill that we have before us because it has gone through all that scrutiny in the Senate, and you've had the witnesses at the human rights committee. I'm concerned, like my colleague Mr. Nicholson. We have started to hear rumours that the government may have reservations about this bill. In fact, hearing that gives me a sense of déjà vu with you two because of Bill C-14. It feels we are here again.

Senator Cowan, can you provide this committee with examples of where federal criminal law power is currently in statute, but may seem to be in provincial areas? I know there are examples where federal criminal law power is used extensively, and in some cases where it may seem to impinge on provincial jurisdiction, but has been accepted as constitutional.

[James S. Cowan]

Absolutely. I do have that information; I'm just looking for it.

[Rob Oliphant, Liberal, Don Valley West, ON]

We have a list.

I just don't want to be inaccurate.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

While he's looking for that, Mr. Oliphant, can you emphasize for the committee just how important that concept of the three-legged stool is, the fact that we may have Canadians feel they're under-protected, but if we get this bill and remove one of those legs they will not be.

[Rob Oliphant, Liberal, Don Valley West, ON]

You're going to be hearing from geneticists. I've been working on this bill with the geneticists from SickKids hospital in Toronto, and they're talking about real cases, clinical experience, where you have a child presenting symptoms that could be one of two different diseases as its foundation, and a genetic test will make the difference. Parents have declined getting that test done half the time for fear of future discrimination that child may face. Even though they may have a 5% chance of getting that illness, they don't trust the system. If they sense possible discrimination, they won't get the test, and the child could die. That's the reality.

After the death of that child they would have to go to the Human Rights Commission in their province or territory and take a case forward to a commission after it's too late. We're trying to say it's very different. You got a letter from a Mr. Howard, that he copied me on. It was a stunning letter for me because he doesn't understand the differences. Rights are rights, but the experience and the truncation of those rights have a different effect in different ways. It's quite different on a life-and-death issue like this, where you can have a health impact that makes a difference.

[The Chair, Liberal, Anthony Housefather]

Senator Cowan, we get back to your half of the list.

[James S. Cowan]

Thank you.

I'm referring now to evidence that Professor Ryder gave to the Senate committee when he addressed this point.

By way of a preamble, he referred to section 91(27) of the Constitution, which confers on Parliament the exclusive jurisdiction to pass laws in relation to criminal law. The leading decision on that is the Margarine Reference in 1949, when Justice Rand held that a valid criminal law must have “as its dominant characteristic the putting in place of prohibitions, coupled with penalties”, for “a typically criminal public purpose”, such as the protection of public peace, order, security, health, and morality. That's the definition that's been used.

Then he goes on to talk about a wide range of statutes that have been upheld pursuant to that. These include the following: prohibitions on anti-competitive practices in combines legislation; the consumer protection provisions in the Food and Drugs Act; the now-defunct therapeutic abortion provisions in the Criminal Code; Tobacco Products Control Act, now the Tobacco Act; the Lord's Day Act; the Firearms Act; recent legislation repealing the long-gun registry; the Young Offenders Act, now the Youth Criminal Justice Act; the drug offences in the Controlled Drugs and Substances Act; the toxic substance provision in what is now part 5 of the Canadian Environmental Protection Act; the prohibition on issuing false prospectuses in what is now section 400 of the Criminal Code; and the prohibited activities provisions in section 5(1) of the Assisted Human Reproduction Act.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you for that, Senator Cowan.

I think that's a great list to read into the record.

Quickly, because my time is almost up, for the benefit of the members of this committee, has the Canadian Medical Association taken a position on this bill, and what is it?

[James S. Cowan]

Yes, the Canadian Medical Association has taken a strong position in support of the letter of this bill. There was a letter submitted to the chair on November 1.

Mr. Chair, is that being circulated, or how is that handled with the committee?

[The Chair, Liberal, Anthony Housefather]

I imagine it's being translated right now, because I haven't seen it yet, but as soon as it's translated it will be circulated to members of the committee.

[James S. Cowan]

I could provide copies here, but the concluding sentence to the letter signed by the president of the Canadian Medical Association is, “To that end, the CMA urges the Standing Committee on Justice and Human Rights to support the enactment of Bill S-201 with no amendment.”

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you very much.

[The Chair, Liberal, Anthony Housefather]

We'll now go to Mr. Bittle.

[Chris Bittle, Liberal, St. Catharines, ON]

I want to, again, echo my colleagues and thank especially you, Senator Cowan, for your incredible work on this. To be at the forefront of an advancement in human rights is an exciting thing to be part of.

You touched on it briefly, Mr. Oliphant and Senator Cowan, but can you explain your motivation behind this bill and what drove you to sponsor it, to be a custodial parent, if you will, and to bring this forward to the Senate in Senator Cowan's case?

[Rob Oliphant, Liberal, Don Valley West, ON]

When the people spoke in 2011 and sent me home to Toronto after a brief but very good time in the House of Commons, I was hired to be president and CEO of the Asthma Society of Canada, a small but mighty health charity.

I was fairly quickly elected to the governing council of the Health Charities Coalition of Canada. That is the group that the 30 or so health charities and patient groups in Canada are members of. We look at particular policy issues that are stumbling blocks or barriers for us to advancing the health of Canadians.

At our coalition, we made the decision to get into the area of genetic testing. With the discovery of the human genome, medicine was changing every day. Our old laws and old practices were not keeping up. Everything about our world in health care was changing.

They have not yet discovered the asthma gene; they've discovered biomarkers to recognize why different medications don't work. They used to do it by trial and error. Until a couple of years ago, everything was by trial and error in the area of asthma. We now have biomarkers that tell people why certain medications work.

In other diseases.... This year, for example, they discovered the gene for cystic fibrosis. A few years ago they discovered the genes that are related to breast cancer, ovarian cancer, cervical cancer, now prostrate cancer, multiple sclerosis, Alzheimer's, and rapid onset and early advanced Alzheimer’s. They now have a genetic component for that.

As a patient organization, we found that none of the governments in Canada was moving quickly on this. We looked at the American model; we looked at another model, in Europe, and said, let's do this. That's when Bev Heim-Myers, one of my colleagues, started working with Senator Cowan on this bill.

It seemed a natural fit for me to pick it up. I'm not a lawyer—there's a reason I'm not a lawyer, when I read that list of acts—however, I understood the bill from the health perspective. What I was hoping was that the lawyers would give us a break. That was my goal on this one, to say that the health impact of this is so important and that people's lives could be affected so positively that it's important.

One story I got was that companies were now looking at.... It wasn't so much life insurance that was the problem, but are you going to hire someone who carries a gene when someone else doesn't carry that gene, even though they might have a 5% chance of actually developing this disease because of all the other factors? We now have documented cases of employers choosing one person over another because of the experience of providing health care benefits or drug benefits.

That's not the way we work in Canada. We share risk, we work together on it, and that is pervasive. I would say that is a fundamental principle that we're trying to engage in.

[Chris Bittle, Liberal, St. Catharines, ON]

I thought we would hear from you both.