Justice Committee on Nov. 22nd, 2016

[Stephen Frank]

This is a very complicated area. We've been spending many months, if not years, thinking about an approach that could allow us to balance an appropriate protection of genetic information while protecting the premiums for the vast majority of Canadians.

It requires significant analysis and understanding of the implications before you would commit to that kind of approach. The reality is that we're approaching that time when we're prepared to be moving forward on that, after very careful consideration. This is not something we've pulled out in the last couple of weeks.

I will quickly respond. Everybody wants the appropriate use of genetic information. We understand very clearly as an industry that understanding genetic information will allow us to provide better treatments. It provides better outcomes for people. There are advantages to everyone from being able to access that information.

Cutting that off from us precludes not only the underwriting use of that information, but the diagnostic and treatment information as well. We think it's a very broad and problematic approach to this issue.

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

I would like to follow up with the memo from Torys. I do appreciate your having footnotes. Not everyone provides us footnotes or where they got their information.

It seems your argument is significantly buttressed by the works of Peter Hogg, who testified here today and completely disagrees with you. He said this bill is, in fact, constitutional and a valid use of the criminal law power.

Doesn't that render this opinion moot at this point, if you're basing it on one particular scholar who fundamentally disagrees with you?

[Frank Zinatelli]

Mr. Hogg, of course, everybody involved in constitutional law does read his textbook.

Let me give you an analogy. In the life and health insurance industry, for anybody that has practised in that area, there is a book, the Bible as it were, by Mr. David Norwood, who unfortunately passed away five or six years ago.

I recall very clearly that Mr. Norwood, who was the all-knowing person on the topic, lost many cases before the courts and before the Supreme Court of Canada, so I think everybody has an opinion of how different laws should be interpreted, but just because somebody has written a text on it does not mean they are always on the right side of the law.

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

Not that he has written a text, but you have used his information as to how to determine the pith and substance of this legislation. You have referenced him multiple times, and the best way to determine it is to use his test and use that information.

Then he appears before this committee, and you're giving him a great deal of props, for lack of a better word. Now you're saying don't listen to him.

[Frank Zinatelli]

I'm not saying don't listen to him. I would also note that a number of the folks who presented before you before this session actually cited some of the same tests that Professor Hogg has presented at different points from his textbooks.

As I recall hearing those folks, not all of them were in agreement, and we respectfully disagree with his conclusions on this matter.

[The Chair, Liberal, Anthony Housefather]

Excellent. Thank you so much.

Are there any short snappers from anyone?

I just have one. The actuarial organization has presented proposed amendments to the legislation. The insurance industry is arguing that the law is already unconstitutional. Of the four constitutional experts we just had, two of them said that adding these amendments would render the law unconstitutional. Two said it would enhance the chances that the law would be rendered unconstitutional. Does the insurance industry support the amendments proposed by the actuarial industry?

[Stephen Frank]

No. We continue to believe this bill is unconstitutional. We continue to believe that we need to carve out the insurance section. I think what we're signalling is that this is a provincial area of responsibility, and we're working actively with the provinces on an approach.

[The Chair, Liberal, Anthony Housefather]

I understand. So essentially, what you would propose, they don't want, and they would use it to argue the law's even more unconstitutional than their current position. I just want you to understand that I am taking seriously what you said. It was in the British agreement. There's multiple jurisdictions that have such a proposal, but the effect would be difficult here.

Gentlemen, thank you so much for your testimony. It was really appreciated, and it was fascinating in some cases.

This meeting is adjourned.