Justice Committee on Nov. 22nd, 2016

[Prof. Bruce Ryder]

Thanks, Mr. Fraser.

I think it's an interesting question. Professor Hogg has taken a position that the federal Parliament can pass laws prohibiting discrimination pursuant to the criminal law power. We haven't had a lot of opportunity to consider the limits of such a power, because Parliament has chosen not to address discrimination primarily through the vehicle of the criminal law power, and that's true at the provincial level as well, where most of our approach is remedial and focuses on civil penalties as opposed to offences.

Discrimination as a legal term, of course, covers a very broad array of conduct. Some of it is very serious in its impact on individuals and groups, and some can be relatively less serious. For example, in the context of employment discrimination, people can lose their jobs as a result of discrimination, a very serious consequence, or they may have to endure one single discriminatory comment at work that does create a negative environment and has impact, but is that a kind of evil that would amount to something that could be covered by the criminal law power? It's definitely arguable that this would be going too far.

I think it is very significant that the prohibitions set out in clauses 3 through 6 of the bill are very targeted. They don't deal with all aspects of discrimination. They're focused on giving individuals control over their genetic information, giving them control over the decision of whether or not to undergo genetic testing, and giving them confidence that, if they do decide to undergo genetic testing, they will be able to maintain control over the results of that test and it won't be able to be used by others to impose negative consequences on them.

I think those are very serious kinds of discrimination, which are being addressed by the bill, and certainly not the full array of potential discriminatory consequences that could be imposed on the basis of genetic characteristics.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much, professor.

Professor Cyr, could you comment on this please?

[Prof. Hugo Cyr]

Certainly.

There is one thing that surprises me. It is difficult to say that the objective is necessarily to obtain health information when clause 3 itself seeks to protect the person from having to take a test. Clause 3 seeks only to authorize a person to refuse to take a genetic test.

The idea of protecting patients so they can voluntarily take a test and not be required to disclose the results is reflected in clause 4. Clause 3, on the other hand, does not pertain to this health objective. It pertains to the person's autonomy, that is, their free choice to take a test or not and to obtain information or not on their propensity to develop an illness. Clause 4 also seeks to protect the patient from the potential consequences. Retaining this ability, that is, the autonomy to choose, traditionally falls under private law.

People from certain communities know that they have a greater propensity to develop an illness. Some of these people do not want to know if they have the illness because it would change their life, while others want to know in order to plan.

To the extent that the provision seeks to protect autonomy, that is no longer the objective of protecting health.

[Colin Fraser, Liberal, West Nova, NS]

Okay. Thank you very much.

Professor Hogg, could I ask you, regarding the double aspect doctrine, how that applies to constitutional issues in Canada with particular regard to this bill? Are there other areas of discrimination where double aspect has been utilized and the criminal law power has been used to combat some form of discrimination that you can think of?

[Peter Hogg]

No, I can't think of any examples where the criminal law power has been used against discrimination, so that the double aspect doctrine would be relevant. But the double aspect doctrine would be relevant here because there are so many other areas where the criminal law power has been exercised. A good example is highway traffic. There are federal prohibitions, criminal law. There are provincial prohibitions, property and civil rights. Exactly the same doctrine would apply here, so that it's not as if Parliament would be absorbing the whole area of genetic discrimination. It would simply be making it an offence to discriminate on the basis of genetic characteristics.

[Colin Fraser, Liberal, West Nova, NS]

Yes.

Professor Ryder, do you have a quick comment?

[Prof. Bruce Ryder]

I agree with Professor Hogg.

I suppose the closest equivalent would be in the context of hate speech, in that Parliament has acted to prohibit the willful promotion of hatred through the passage of subsection 319(2) of the Criminal Code. That is hate speech directed at identifiable groups. The Canadian Human Rights Act used to have a provision addressing hate speech as well. A number of provincial human rights codes have provisions dealing with the civil consequences of hate speech. For example, in the Saskatchewan human rights code, there's a prohibition on hate speech in section 14.

There's an example of the Supreme Court of Canada upholding those various provisions, most recently in the Whatcott v. Saskatchewan decision from a few years ago. The court described hate speech as discriminatory speech or speech that has discriminatory effects. We can think of hate speech as a branch of discrimination law in that sense. They've upheld the provincial provision and of course they've upheld subsection 319(2) of the Criminal Code in the Keegstra case and other decisions. That's an example of an area where there's room for an overlap between criminal prohibitions passed by Parliament and prohibitions in provincial human rights codes.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. MacGregor, you're next.

[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.

[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.

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

For example, there have been some cases where the federal powers over trade and commerce have been used as a part of that doctrine. Correct?

[Pierre Thibault]

Yes.

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

I'll move on to Professor Ryder and Professor Hogg. I specifically wanted to talk about the public health evil that this bill is trying to address. We've gotten a letter from the University of Toronto that's been signed by a host of genetic scientists, medical doctors, genetic counsellors, and innovators from this university. They have stated:

...in the absence of any protections against genetic discrimination, there is evidence of such discrimination that demonstrates that these fears are well founded....

We believe fears about genetic discrimination should not be a factor influencing a person’s decision whether or not to take a genetic test, particularly when their very lives could be at stake.

When previous Supreme Court decisions have looked at federal criminal law power, they've been reluctant to freeze the law in time and also to look at future cases. We now know very well that we are on the steps of a gigantic leap forward in what genetic testing can provide. Indeed the number of tests coming out every year is following a logarithmic pattern.

I would like to have your comments with respect to what the professors' fears have outlined and the way genetic testing is going forward and just how federal criminal law in this bill is designed to promote defence against a public evil, not just with respect to the insurance industry here and now, but also with respect to how these genetic tests could potentially be used by future employers and future contracts in a whole host of industries we may not even know about right now.

[Prof. Bruce Ryder]

Thanks very much. I think it's an excellent point, and it brings up one of the dominant principles of Canadian constitutional interpretation, the idea that the Constitution needs to be interpreted as a “living tree” capable of evolving over time and capable of addressing new social problems and challenges.

With all due respect for my colleague, Professor Cyr's quote from the Attorney General for Ontario v. Reciprocal Insurers decision from 1924 is a little dangerous from that point of view, because it predates the articulation of the living tree principle in 1930 in the Persons Case by the Privy Council, and also predates the evolution of a modern understanding of the criminal law power that started with the margarine reference in 1949. It was a time when there was a much more restrictive interpretation of the criminal law. In any case, the Reciprocal Insurers case from 1924 dealt with an attempt by the federal Parliament to assert jurisdiction over the insurance industry, writ large, and the comments from that case have to be thought of in their historical context and the legal context of the time. I'm not sure they're very helpful in thinking through this issue.

I agree with you, however, that this is a fast-moving area of science with huge implications for our health and for our health care system. I think there's a growing consensus, which we see reflected in the debates throughout the parliamentary process, that we need to take steps to protect people's genetic information and to give them a firm basis for believing that their genetic information will be within their control.

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

Professor Hogg.

[Peter Hogg]

I think the living tree concept that the courts adopt is always true of Parliament. It will be open to Parliament to review this law—assuming it's passed—as developments warrant a change. I would expect that there are enough groups with an intense interest in this that you will be invited to do so. I think you are safe to legislate on the basis of what we know now, bearing in mind that if things look entirely different in 10 years' time Parliament can always look at it again.

[The Chair, Liberal, Anthony Housefather]

Your time is up, Mr. MacGregor. I cannot give you any more time as we have gone over the six minutes allotted.

We're going to move to Ms. Khalid.

[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?

[Peter Hogg]

You're concerned about two different approaches.

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

Yes, and to clarify, with respect to discrimination, why select one specific area of discrimination as opposed to other identifiable groups as well?

[Peter Hogg]

I think that's a perfectly legitimate question and it's one of the issues that the Minister of Justice talked about. I think it's an issue of policy for Parliament to consider, but we do have a definite indication that genetic discrimination is an issue. It's not properly dealt with in the law right now, and I think that the enactment of a criminal law to govern it is a perfectly sensible response, bearing in mind that there may be other approaches that eventually should supplant the criminal approach.

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

Mr. Cyr, do you have a comment on that?

[Prof. Hugo Cyr]

The jurisprudence is replete with tensions between labour law and human rights regimes, and by adopting this statute, which will modify both at the same time, there are possibilities that there will be tensions between those two regimes, and there will be questions as to which is the best path to follow for a claimant. Should that person go through the labour system and arbitration and so on? Or should that person go through the human rights system? Oftentimes, the different systems come up with completely different types of jurisprudence. Right? And the standards will be different.

Mind you, the first part, if it's criminal law, the standard will be proof beyond a reasonable doubt, which is quite something if you're actually looking to eradicate some...if you're thinking in terms of civil rights issues. So I agree with the minister. I think that there is a problem or a political issue to think about in terms of how that will work in practice. I'm not sure it's wise to keep both tracks at the same time.

[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?

[Prof. Bruce Ryder]

Sorry, I wasn't sure I understood.

Jurisdiction over discrimination is, of course, divided between the federal Parliament and the provincial and territorial legislatures. As you know, pursuant to the Canadian Human Rights Act, federal jurisdiction applies only within certain areas, such as, for example, federally regulated workplaces. Provincial jurisdiction under human rights codes will apply to other workplaces.

On this issue, when we think of the amendments to the Canadian Human Rights Act, for example, they're not going to apply. A prohibition on genetic characteristics in the Canadian Human Rights Act is not going to apply to most employers in the country. The provinces would have to amend their human rights legislation to accomplish that objective, as Ontario is doing with Bill 30, which is currently before the Ontario legislature and is going to amend the Ontario human rights code to add a prohibition on discrimination on the basis of genetic characteristics. It has passed second reading and is now on its way to the justice committee at Queen's Park.

The criminal law power—and this comes back to what Professor Hogg was saying earlier—enables Parliament to pass a law that will apply in all spheres. Of course the advantage of that is that when we believe that something is seriously wrong and amounts to a social evil, then it's not enough to leave it to the human rights complaints process, which is episodic and may deal with a very small part of the issue, and may lead to remedies that are tailored primarily to the individual complainant. It could possibly have an impact in a more systemic sense, but it's not particularly reliable in that regard, whereas the criminal law, especially when you have prohibitions coupled with serious penalties, is, one would hope, going to have a more systemic impact on all service providers caught by the prohibitions, and all those engaging in contracts caught by the provisions.

So yes, there is an overlap with provincial areas of jurisdiction, but that's so common with federal criminal laws.