Justice Committee on Nov. 17th, 2016

[The Chair, Liberal, Anthony Housefather]

I'd like to bring this meeting of the Standing Committee on Justice and Human Rights to order as we recommence our study on Bill S-201, an act to prohibit and prevent genetic discrimination.

I'd like to welcome today, as our witnesses from the Department of Justice, Laurie Wright, who is the assistant deputy minister, and Laurie Sargent, who is the deputy director general and general counsel, in the human rights law sector, public law and legislative services sector.

Welcome. By the way, I'm always so impressed by this title. It is the longest title I have ever seen.

[Voices]

Oh, oh!

[Laurie Sargent, Deputy Director General and General Counsel, Human Rights Law Sector, Public Law and Legislative Services Sector, Department of Justice]

I do my best.

[The Chair, Liberal, Anthony Housefather]

We welcome you.

Ladies, as I understand it, you do not have a statement in advance of questions.

[Laurie Wright, Assistant Deputy Minister, Department of Justice]

That is correct. I understand that you may have something from the minister by way of a statement.

[The Chair, Liberal, Anthony Housefather]

Perfect.

Members of the committee, we're going to be interrupted by bells at a certain point. I'm wondering if members would agree to give unanimous consent at the 30-minute bells to go for 15 minutes and then stop after 15 minutes so that we can go to vote. Is that okay with everyone on the committee? Do we have unanimous consent so that we won't interrupt?

[Some hon. members]

Agreed.

[The Chair, Liberal, Anthony Housefather]

Given that, we'll move to questions for witnesses, starting with the Conservatives. Who will be going first?

Mr. Nicholson.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much.

Thank you very much for your appearance here today.

The bill describes “genetic characteristics”. Do you have any issue with that definition perhaps being too broad? Do you have any thoughts on that at all?

[Laurie Sargent]

Thank you very much.

As you know, we're here to provide the technical views. From our perspective, we're not going to speak to the term “genetic characteristics” as it is used in relation to the genetic non-discrimination act. We're going to leave the statement to speak to that.

As we understand it, from the perspective of the Canadian Human Rights Act, that definition won't be imported into the CHRA, so, as with so many other grounds in the CHRA, the terms will be left to be defined by the Canadian Human Rights Commission and others as they interpret the legislation.

That would be our understanding of the bill, anyway. Thank you.

[Rob Nicholson, Conservative, Niagara Falls, ON]

All right. That's fair enough.

Let me ask you questions with respect to the fines and penalties here. This is not part of the Criminal Code, but it creates an offence. That being said, how do you think the penalties, the fines, or the prison time line up? Do you find this pretty well in line with others? Do you find it consistent, or above, or below? What are your thoughts on that?

[Laurie Wright]

Certainly, the act stipulates that a prison term of up to 12 months could be imposed on summary conviction. By way of general reference, the Criminal Code for summary conviction offences has a maximum term not exceeding six months.

Also, with respect to both the possible term of imprisonment and the fines that are available under the genetic non-discrimination act, they would line up with much more serious penalties that you would see for offences in the Criminal Code, such as counterfeiting or those kinds of things. They're certainly on the high end.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Are you able to give any opinion with respect to the constitutionality? This is an issue that has come up on a number of occasions. I expressed my own opinion yesterday that creating an offence of actions that we find intolerable or wrong is within the federal jurisdiction, but nonetheless, we're going to be hearing more about this. You may or may not want to comment on it, but I thought I would raise it with you.

[Laurie Wright]

Thank you very much.

As you know, Mr. Chair, we're here to provide technical comments on the bill, not to provide advice to the committee.

Thank you.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much.

Those are my questions, Mr. Chairman.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Nicholson.

You still have more time in the block if Mr. Falk or Mr. Cooper wants to ask any questions. No?

All right. We're going to move to Ms. Khalid.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you very much, Chair.

Thank you, ladies, for coming in today to answer questions on the technical aspects.

As you may know, we will be having some lawyers coming here and presenting testimony on the constitutionality of the bill, among other things, so I'm sure Mr. Nicholson will really look forward to that.

[Voices]

Oh, oh!

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

I do want to ask some technical questions. If you can, as a beginning, please talk about how each section of the bill affects the respective codes that are being amended. For example, what is the effect on the Labour Code? What is the effect on the Criminal Code and on the Human Rights Act as well, please?

[Laurie Wright]

Maybe I'll ask Laurie to address the Canadian Human Rights Act first, and then I can follow up from there.

[Laurie Sargent]

With respect to the Canadian Human Rights Act, the key piece will be that it's adding a new prohibited ground of discrimination to the CHRA: the ground of genetic characteristics. We were just been here on Bill C-16, which was also adding a new ground of gender identity and expression. This bill will provide explicit protection against discrimination on the basis of genetic characteristics.

From the Department of Justice's perspective, there already is some protection in the CHRA under the ground of disability for anyone who has a predisposition, as we would call it, to a disability that might be revealed through any number of means, including a genetic test. That has been established in the case law by the Supreme Court, in the case of Quebec v. Boisbriand (City) and Quebec v. Montreal (City). This is taking that, in a way, one step further to make it clear that discrimination is prohibited whenever someone has a genetic characteristic that may predispose them to particular abilities or not, or illness or not, and clear that this is obviously a prohibited basis on which employers and service providers who are regulated by the federal jurisdiction can make decisions.

[Laurie Wright]

With respect to the Canada Labour Code, in terms of the detailed interaction between the two, I would refer you to the possibility of speaking to labour officials about the details of the Canada Labour Code. I can say generally that the concurrent changes to the Canadian Human Rights Act and to the Canada Labour Code do appear to create two systems that would operate to effectively be looking at the same kinds of complaints and issues at the same time.

With respect to the Criminal Code portion, the criminal nature of the genetic non-discrimination act, I think it would be solely, as another honourable member already mentioned, a question of whether the types of penalties match up with those for offences of a similar kind of gravity that are already in the Criminal Code.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Okay. Thank you.

I understand that we are talking only about the technical terms here. What arguments can be made against the constitutionality of this bill with respect to jurisdiction? I'm not talking about your position. I'm talking about what arguments can be made. If possible, can you cite some cases that we could refer to in preparation for our questioning of the lawyers who will be attending?

[Laurie Wright]

I'm not in a position necessarily to put specific arguments on the table. I can tell you that there is a long history, both in the judicial committee of the Privy Council and in the Supreme Court, of looking at various times when Parliament has brought forward legislation that purported to apply to insurance companies, and it has been rejected on numerous occasions.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

To flip that, can you then give arguments that can be made for the constitutionality of this proposed legislation? If you can, then we'd really appreciate you citing some cases.