Justice Committee on Nov. 22nd, 2016

[The Chair, Liberal, Anthony Housefather]

Good morning, ladies and gentlemen.

It is a pleasure to convene this session of the Standing Committee on Justice and Human Rights as we resume our study on Bill S-201, an act to prohibit and prevent genetic discrimination.

I'd like to welcome Mr. Lukiwski who is joining us this morning.

It's a pleasure to have such an esteemed panel of scholars here to share with us their views on constitutionality and policy on Bill S-201.

Professor Ryder, welcome.

[Professor Bruce Ryder, Associate Professor, Osgoode Hall Law School, York University, As an Individual]

Thank you.

[The Chair, Liberal, Anthony Housefather]

We have the eminent constitutionalist, Peter Hogg, welcome, and thank you so much for coming.

[Peter Hogg, Scholar in Residence, Blake, Cassels & Graydon LLP, As an Individual]

Thank you.

[The Chair, Liberal, Anthony Housefather]

We have Hugo Cyr, who is the dean of the faculty of political science and law at the Université du Québec.

Professor Cyr, we are very pleased to have you here with us today. Welcome.

[Professor Hugo Cyr, Dean, Faculty of Political Science and Law, Université du Québec à Montréal, As an Individual]

Thank you very much, Mr. Chair.

[The Chair, Liberal, Anthony Housefather]

We also welcome Mr. Pierre Thibault, from the University of Ottawa. We are also very pleased to have you here today.

[Pierre Thibault, Assistant Dean and Counsel, Civil Law Section, University of Ottawa, As an Individual]

Hello and thank you, Mr. Chair.

[The Chair, Liberal, Anthony Housefather]

We are going to follow the order that is set out on the agenda.

We are going to begin with Professor Ryder.

[Prof. Bruce Ryder]

Thank you very much, Mr. Chair, and thank you, honourable members.

It's a great privilege to have the opportunity to appear before you today to speak about the constitutionality of Bill S-201, which is a very important initiative. In my view, the doubts that have been expressed in some quarters about the constitutional validity of the bill are a mistake.

I believe it's a valid exercise of Parliament's power. In particular, the more controversial parts of the bill from a constitutional point of view—not from my perspective but from the perspective of some—sections 3 through 7, the part that's going to be a new free-standing genetic nondiscrimination act is a valid exercise of Parliament's power to enact laws in relation to criminal law because it consists of, in its dominant characteristic, putting in place prohibitions in sections 3 through 6, and a penalty provision in section 7 for the purpose of protecting the health of Canadians.

I'm going to say a few words about the scope of section 91(27), and a few words about the bill itself. I'd like to emphasize the importance of a constitutional doctrine in this context, which we refer to as the double aspect doctrine.

What we mean by that is that there are some subject matters, like genetic discrimination, that can be addressed by both levels of governments within their respective spheres of jurisdiction. This subject matter can be addressed by Parliament in part through it's criminal law power, and of course, it also falls within the jurisdiction of the provinces. I hope I can offer some clarity on that point as well.

First of all is the criminal law power, and you're going to hear from the other members of the panel about its scope. This is a very broad federal power that has been defined by the courts as allowing Parliament to enact laws that have, as their dominant characteristic, putting in place prohibitions coupled with penalties for a typically criminal public purpose, such as the protection of public peace, order, security, health, and morality.

I'm quoting the leading decision of the Supreme Court of Canada on the scope of the criminal law power, a decision known as the “margarine reference”, which was decided by the Supreme Court in 1949 and has been the leading case that has been followed by the courts ever since.

The court has repeatedly emphasized that the criminal law power is a very broad power. It has served over the years to uphold, of course, many provisions of the Criminal Code, but many provisions of other statutes as well.

In my testimony to the Senate committee earlier this year, and in the brief that I've prepared for this committee as well, I've listed some examples of federal statutes that have been upheld pursuant to the criminal law power. They include provisions of the Food and Drugs Act, the Tobacco Act, the Firearms Act, the Youth Criminal Justice Act, the Controlled Drugs and Substances Act, provisions of the Criminal Code that relate to the securities trade, the prohibited activities provisions of the Assisted Human Reproduction Act, and part V of the Canadian Environmental Protection Act, which deals with toxic substances. Those are just some examples from the case law.

It's also true that the provinces have jurisdiction in relation to property and civil rights pursuant to section 92(13) of the Constitution Act 1867. This too has been a provision that the courts have interpreted broadly, and it includes regulation over most aspects of the regulation of the insurance industry. It includes regulation of the labour relations of most employers because most employers fall within provincial jurisdiction.

It's also true that the provisions of the genetic non-discrimination act, in sections 2 through 7 of this bill, have a significant impact on activities that fall within provincial jurisdiction, such as the insurance industry and activities of provincially regulated employers. That, however, is true of most provisions of the Criminal Code, or at least many provisions of the Criminal Code; that is, they deal with matters like theft, which is also in relation to property which is a provincial area of jurisdiction.

There are significant portions of the Criminal Code that deal with the solemnization of marriage, the conjugal offences, and the unlawful solemnization of marriage. Again, this is a provincial subject matter, pursuant to section 92(12).

In other words, we can say that much of the Criminal Code deals with matters that are double aspect matters, meaning they can be regulated by the federal Parliament pursuant to its criminal law power with regard to particularly harmful activities, and can be regulated from a provincial point of view pursuant to jurisdiction over property and civil rights. Therefore, I don't think we need to dispute whether or not this is a law that will have important impacts on provincial areas of jurisdiction. It will, but that's not determinative of its constitutional validity.

To determine its constitutional validity we have to ask if its dominant characteristic is to put in place prohibitions coupled with penalties in order to combat harmful conduct or to combat a social evil, or should we be worried that this is a kind of surreptitious attempt for Parliament to regulate the insurance industry, or to regulate provincial employers? I don't believe there is any reason to conclude that is the case. If that were the case, we would say this is colourable legislation, that its form is disguising its true purpose, which is to regulate provincial matters as opposed to suppressing harmful conduct or to suppress a social evil that we think is damaging to Canadians' health.

That's the key question, not whether this is a law that has an impact on provincial areas of jurisdiction. Of course it does, but that's true of most of the Criminal Code, for example.

The question we have to focus on is the pith and substance or dominant characteristic of the provisions of the bill. Is the dominant characteristic putting in place prohibitions coupled with penalties to protect the health of Canadians, or is it the regulation of a subject matter that falls within provincial jurisdiction? To determine pith and substance, the courts will examine the purpose of legislation as well as its effects, the title of the legislation as set out in clause 1 of the bill, the “Genetic Non-Discrimination Act” is important.

Clauses 3, 4, and 5 put in place prohibitions on requiring individuals to undergo genetic testing, on requiring them to disclose the results of a genetic test, and on the use of genetic test results without written consent. The aim of these provisions is to promote health and personal security and to protect privacy by protecting individuals' control over the decision of whether to undergo testing and over the uses of genetic test results. These prohibitions apply to any person. They do not mention any particular industry or type of actor.

Clause 6 provides exemptions from the prohibitions for health care practitioners and researchers, and clause 7 puts in place serious penalties for the violation of the prohibitions in clauses 3 through 5. In my view, it is evident that the dominant characteristic of these provisions is to put in place prohibitions coupled with penalties aimed at protecting individuals from threats to health and personal security posed by the use of genetic information without their consent.

The pith and substance of these provisions fall squarely within the definition of criminal law followed by Canadian courts ever since the margarine reference. They do not resemble the detailed and extensive regulation of assisted reproduction services, for example, of the type that were declared invalid by the Supreme Court of Canada in the Assisted Human Reproduction Act reference, or the detailed regulation of the insurance industry that was declared invalid in a series of cases decided in the first half of the 20th century, where the federal Parliament was seeking to assert jurisdiction over the insurance industry more generally.

Rather, clauses 3 through 7 of Bill S-201 are very similar in their nature and objectives to the prohibited activities provisions, including the prohibitions on the use of reproductive material without consent that were upheld by the Supreme Court of Canada in the Assisted Human Reproduction Act reference.

I'll be happy to go into further detail about the case law, or other aspects of jurisdiction of Parliament over human rights laws generally, or over discrimination generally, and how federal jurisdiction interacts with provincial jurisdiction in discussion with members of the committee.

Thank you very much.

[The Chair, Liberal, Anthony Housefather]

Thank you so much, Mr. Ryder. We really appreciate that.

Professor Hogg.

[Peter Hogg]

I am not going to say much that Bruce hasn't already said.

I want to start by saying that the great advantage of the criminal law is that it can apply right across the country. On the problem with leaving the provinces and territories to enact prohibitions on genetic discrimination on their own, I agree with Professor Ryder that they would certainly have the power to do that. I'm sure that no province wants to permit genetic discrimination.

However, each province has its own legislative priorities, and a prohibition of genetic discrimination may not make the cut. If we did leave this to the provinces, I think we could be absolutely certain that there would not be a nationwide rule. The beauty of exercising the criminal law power is that it does provide a nationwide rule.

If I could talk a little again about assisted human reproduction, I appeared in the Supreme Court case for the federal government, and I was extremely disappointed when the whole scheme was not upheld. They did uphold certain prohibitions, but they struck down the regulatory scheme that had been established, I thought, under the criminal law power. However, the majority of the court disagreed. It was interesting that the provinces said it was something that was within their bailiwick. The majority of the court—although it is a very confusing judgment and the judges were all over the place—essentially agreed.

Do we expect the provinces to step up and deal with assisted human reproduction? If we did, we would be very disappointed. The provinces thought that was too controversial, too complicated, and the result of the Supreme Court's decision is that apart from the bits that were upheld, assisted human reproduction remains unregulated in most of the country. I think that's a really unfortunate situation.

I'm simply arguing for the great advantage once the federal Parliament makes some choices of enacting it through the criminal law, and where it will have a national effect.

A valid criminal law involves three elements. Professor Ryder has talked about them. There has to be a prohibition, there has to be a penalty, and there has to be a typically criminal purpose.

Limiting myself to the proposed genetic non-discrimination act—that piece of the bill—there is a prohibition of genetic discrimination. There is a penalty for breach of the prohibition. The only conceivable purpose of that is to prohibit and prevent what Parliament would regard as the evil of genetic discrimination. I agree completely with Professor Ryder's conclusion that the proposed law would be a valid exercise of Parliament's criminal law power.

I should add that I've read the Torys' opinion, which you have, which says that it's really about insurance, employment, etc. I don't agree with that. It seems to me that the act says nothing about those topics. I gather the topic of insurance was explicitly in the bill at an earlier stage. Professor Thibault took the view that the bill was unconstitutional for that reason. That's been eliminated, so this is not a prohibition that just applies to.... It's not singling out the insurance industry. It's not singling out employers. It's a perfectly general application.

So I do not agree with the Torys opinion, which was rendered on behalf of the insurance industry, that it's in pith and substance a matter of property and civil rights—i.e., insurance. Torys also said, and I disagree with them here as well, that we know there's a prohibition and a penalty, but it lacks a typically criminal purpose. In my opinion, the prohibition and prevention of the evil of genetic discrimination would clearly be accepted by the courts as a criminal law purpose.

Mr. Chair, let me stop there and await your questions.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Professor Hogg.

We will now move on to Professor Cyr's presentation.

[Prof. Hugo Cyr]

Thank you very much, Mr. Chair, for inviting me to be here today.

This is a topic that I have been thinking about for some time. Last night, I found in my archives a paper on genetic discrimination that I did in 1994 for a certain Professor Irwin Cotler. You will understand therefore that I am in agreement with the principle and objective of Bill S-201. I do however have a number of reservations, specifically as regards the constitutionality of clauses 3, 4, 5, 6, and 7.

I also agree with the letter published by the Minister of Justice regarding the validity of clauses 8, 9, and 10. In my opinion, these clauses are valid and do not pose any constitutional problems.

There are issues relating to legislative policy that have to be considered since there will be an overlap in jurisdiction, namely in labour law and the jurisdiction that will be given to human rights tribunals. This will create a conflict. I will talk in particular about clauses 3, 4, 5, 6, and 7.

In examining the substance of a provision, we have to look at the title, to be sure, but we must also look at what is in it and what exactly it does. Clause 3 prohibits any person from requiring an individual to undergo a test. It is possible to undergo a test to obtain services. The bill does not prohibit it, but it does prohibit requiring someone to take a test as a condition of obtaining services.

Nor do these same provisions prohibit the use of genetic information obtained with written consent for purposes of clarity. Clauses 3, 4, 5, 6, and 7 of the bill do not prevent discrimination on the basis of genetic information. It does, however, prohibit this in the two other parts. Under labour law, a person cannot be punished or have a benefit withdrawn based on test results.

The Canadian Human Rights Act prohibits discrimination based on genetic characteristics, but not in the first part, which simply prohibits requiring someone to provide information for the purpose of obtaining a service or a contract. The real legal effect is to prohibit requiring someone to take a test, to allow information to be disclosed voluntarily, and to allow information to be used if it is provided voluntarily.

The conditions under which a contract is formed or those affecting what in civil law are called personality rights traditionally fall under provincial jurisdiction, as stipulated in section 92.13 of the Constitution Act, 1867. Moreover, section 3 of the Civil Code of Quebec provides as follows: “Every person is the holder of personality rights, such as the right to life, the right to the inviolability and integrity of his person, and the right to the respect of his name, reputation and privacy.” Section 3 is an integral part of the first book of the Civil Code of Quebec, entitled “Persons”. There is also a separate chapter on respect of privacy, starting at section 35.

I will read you a passage from a key decision that elucidates what criminal law is and what can be done under it. This passage is from the Attorney General for Ontario v. Reciprocal Insurers.

In accordance with the principle inherent in these decisions their Lordships think it is no longer open to dispute that the Parliament of Canada cannot, by purporting to create penal sanctions under s. 91, head 27, appropriate to itself exclusively a field of jurisdiction in which, apart from such a procedure, it could exert no legal authority, and that if, when examined as a whole, legislation in form criminal is found, in aspects and for purposes exclusively within the Provincial sphere, to deal with matters committed to the Provinces, it cannot be upheld as valid. And indeed, to hold otherwise would be incompatible with an essential principle of the Confederation scheme....

In this case, it was argued that selling insurance without obtaining a federal license was a crime. The court ruled that it was not. Selling insurance falls under provincial jurisdiction. It is not possible, simply by creating a prohibition and a sanction, to cause the matter to fall under federal jurisdiction under criminal law. In the present case, we cannot consider that requiring someone to give genetic information in order to obtain a service automatically falls under criminal law simply because a sanction is added to the prohibition. As my colleagues have pointed out, we must determine whether this prohibition is criminal in nature.

Allow me to digress for a moment on this subject. If, despite the term used, the subject of the bill is not the transfer of genetic information but rather rights and freedoms and the right to equality, we must remember that these rights do not fall under the jurisdiction assigned to one legislature or another, but instead they fall under a jurisdiction that is ancillary to another. We must therefore stipulate what this other jurisdiction is.

Traditionally, this would be a jurisdiction associated with private law, civil law, and contracts law. That is why the provinces are responsible for the general rules applicable to the right to equality. I would point out in passing that, even though it prohibits a series of discriminatory actions, section 20.1 of the Quebec Charter of Rights and Freedoms provides that in such contracts or plans, that is, insurance contracts or pension plans, “[...] the use of health as a risk determination factor does not constitute discrimination within the meaning of section 10.”

Rightly or wrongly, a provision specifically provides that using health status to determine the extent of risk is not a discriminatory act. Professor Hogg told us earlier that, in his opinion, this is an issue that falls under criminal law. In his book, he states in fact that it may be possible to criminalize discrimination.

He said that under the criminal law power and in making that classification, the courts will look for the ingredients of criminal law—the prohibition, the penalty, and typically, criminal public purpose—and not primarily the law's impact on discrimination.

The criminal nature cannot be deduced simply from the fact of discrimination. Moreover, what constitutes criminal nature?

We have to fight against an evil. We saw the reference on firearms and we discussed that. We talked about the three criteria, which are prohibition, penalty and fighting against a criminal purpose. The courts have pointed out many times that this must not be interpreted too broadly so as not to deplete provincial jurisdiction.

In the Reference re Assisted Human Reproduction Act, the term “reprehensible conduct” is used. Although this decision is fairly complex since there was no consensus, there was agreement on the term “reprehensible conduct”. The term “undesirable conduct” is used often. It is difficult to talk about reprehensible or undesirable conduct in this instance when the Assisted Human Reproduction Act itself recognizes the possibility of providing information voluntarily. It is hard to say that disclosing genetic information is undesirable or reprehensible conduct in itself when section 7 of the act allows it.

I can answer other questions, but, before I conclude, I would stress that in this reference, in examining whether elements are criminal in nature, the decision refers to “conduct that is reprehensible or represents a serious risk to morality, safety or public health”. In this case, the rules on consent in civil law is emphasized. The Supreme Court ruled in this case that the provisions pertaining to information and patient consent are all unconstitutional.

The concern is that there could be a legislative gap. We must remember, however, that our laws prohibit discrimination on the basis of disability, which includes not only an actual disability, but also a potential or feared disability, and even the perception of such a disability. This is established in a Supreme Court decision.

Thank you very much.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Professor Cyr.

We will now move on the Professor Thibault.

[Pierre Thibault]

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.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Professor Thibault.

I would also like to thank all the witnesses for their presentations.

We're going to go to question period and we're going to start with Mr. Cooper.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you, Mr. Chair.

I'll direct my first question to Professor Cyr. Criminal laws for the protection of health must address a legitimate public health evil. That's been affirmed by the Supreme Court, including in RJR-MacDonald Inc., at paragraph 32.

Is it your opinion that genetic discrimination constitutes a legitimate public health evil?

[Prof. Hugo Cyr]

The health issues covered can not all necessarily be the subject of criminalization. This is precisely what is discussed in the Reference re the Assisted Reproduction Act. Not all public policy measures to promote health can be the subject of a criminal provision.

The court hopes of course that all the provisions that are adopted will, in general, seek to promote sound public policy. Be that as it may, it is not enough to say that, in the case of certain decisions and actions that could promote health, the specific issue in question raises an issue in criminal law.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

I'm a little unclear from your answer to my question whether you consider genetic discrimination to be a legitimate public health evil. You made the comment, or I thought I heard you say, that in terms of the criminal law power, as it relates to health, it must not be interpreted too broadly and I think that is a fair characterization.

I would note that at paragraph 56 of the assisted human reproduction reference, the Supreme Court stated that criminal law power may validly be used to safeguard the public from any injurious or undesirable effect and that, “The scope of the federal power to create criminal legislation with respect to health matters is broad, and is circumscribed only by the requirements that the legislation must contain a prohibition accompanied by a penal sanction and must be directed at a legitimate public health evil”.

Hence, my effort to press you on whether you would acknowledge that this constitutes a public health evil.

[Prof. Hugo Cyr]

Paragraph 56 is actually from Justice McLachlin, who's position on the validity of those sections was in dissent.

Paragraph 232 of the majority decision of Justices LeBel and Deschamps states:

Health, which Rand J. mentioned, cannot always justify action by Parliament in relation to the criminal law. This passage must therefore also be considered in the context of Rand J.’s definition of the criminal law.

Later in the same paragraph it states:

In our view, therefore, it is not enough to identify a public purpose that would have justified Parliament’s action. Indeed, it might be hoped that Parliament does not act unless there is a public purpose that justifies its doing so. Where its action is grounded in the criminal law, the public purpose must involve suppressing an evil or safeguarding a threatened interest.

With regard to suppressing an evil, the provisions in question pertain only to requiring the disclosure of genetic information and do not in any way prohibit the use of this information for discriminatory purposes. Clauses 3 to 7 do not in any way prohibit the use of this information for discriminatory purposes.

Is it an evil to require the disclosure of genetic information for the purpose of forming a contract? In my opinion, the answer is no. It is a question of public policy, but that is not the same thing.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you, Professor Cyr.

I would ask a question of all of the witnesses. When we talk about a public health evil, which was noted for example in the Torys' opinion.... In the Torys' opinion, the dissenting opinion of Chief Justice McLachlin was cited at paragraph 38, wherein Chief Justice McLachlin stated that the criminal law power cannot be employed to “promote beneficial medical practices”. It is the argument in the Torys' opinion that when you unpack the purpose of this legislation, it really goes toward promoting a good public health practice as opposed a health evil.

Perhaps you could comment on that opinion.

[Prof. Bruce Ryder]

Thank you, Mr. Cooper.

As a point of clarification, I don't think the chief justice's opinion in the Assisted Human Reproduction Act reference is correctly described as a dissent on some aspects of the decision. There were three separate opinions. I think the most important conclusion the court reached in the case was upholding the prohibited activities provisions of the act, but striking down the regulatory provisions of the act, the licensing scheme, what the court referred to as the detailed or minute regulation of the delivery of assisted reproductive services.

That's the key distinction in the case. The court upheld the prohibited activities provisions. It struck down the detailed regulation through licensing scheme, and other measures.

I think it's important to refer to her opinion, as you have it. It is not a dissent in all aspects. Together with Justice Cromwell's decision, it made up the majority for upholding the prohibited activities sections.

I don't understand the objection, frankly, to sections 3 through 7 on the grounds that they're not seeking to promote public health, which is one of the legitimate purposes of the criminal law power. It seems clear that the ultimate objective is to encourage people to undergo genetic testing because it has great value from the point of view of their health and our health care system as a whole. It also seems clear that we're concerned they will be discouraged from doing so if they don't have control over when to undergo genetic testing and what happens with their results.

The arguments against it remind me very much of some of the arguments that were made by the tobacco industry in the RJR-MacDonald case. The Tobacco Act prohibits advertising and other marketing practices related to the sale of tobacco products. The argument was made, “That's not targeting a social evil. What's evil about advertising? It's a lawful product. We're just seeking to promote it, and therefore, it falls outside the criminal law power.”

What the court said was that it's legitimate for Parliament to consider the various ways of promoting public health, and that given the addictive nature of tobacco products, it's very difficult to target consumption itself, so it would instead prohibit advertising and other marketing practices in an effort to deter the consumption of tobacco in the interest of promoting health.

I think what's going on with sections 3 through 7 is something very similar. Regarding the practices that can deter people from undergoing genetic testing and benefiting from the amazing amount of information one can obtain through genetic testing, which is related to taking preventative measures regarding health care and other health benefits, we believe we have to deter those practices in order to promote public health, just as we had to prohibit tobacco advertising for similar reasons.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Professor Ryder. We're at nine minutes on this question. We have to move to our next questioner.

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much, Mr. Chair.

I would like to thank all the witnesses for being here with us today and for their testimony. It helps us a great deal in our work.

I would like to ask a question, starting with Professor Ryder, regarding the social evil and the criminal purpose. In my opinion, this is really the crux of this whole issue. I'd like your help in understanding how a court might do an analysis regarding the pith and substance of this bill if it were to arrive in court.

I believe that you're saying the criminal purpose would be to combat genetic discrimination. Would a court look at the genetic discrimination element and say that since it's not targeting discrimination in general but specifically looking at genetic discrimination, that has implications for the insurance industry, for example, and that therefore the pith and substance of this would not be to combat discrimination and it would not be a proper use of the criminal law power? Would you comment on that please.