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.