Motion No. 1
That Bill S-201 be amended by deleting the short title.
Motion No. 2
That Bill S-201 be amended by deleting Clause 2.
Motion No. 3
That Bill S-201 be amended by deleting Clause 3.
Motion No. 4
That Bill S-201 be amended by deleting Clause 4.
Motion No. 5
That Bill S-201 be amended by deleting Clause 5.
Motion No. 6
That Bill S-201 be amended by deleting Clause 6.
Motion No. 7
That Bill S-201 be amended by deleting Clause 7.
Motion No. 8
That Bill S-201 be amended by deleting Clause 8.
Mr. Speaker, I will use my time to address Bill S-201, an act to prohibit and prevent genetic discrimination, and the amendments that were tabled yesterday, which propose to delete clauses 1 through 8 of the bill.
I will begin by noting that the proposed amendments were neither the subject of discussion nor debate before the Standing Committee on Justice and Human Rights during its consideration of the bill. It is important to take this opportunity to address some critical concerns arising from the proposed legislation.
I will first clarify that I fully support the intent of Bill S-201, which is to protect Canadians from being discriminated against on the basis of their genetic characteristics. I agree wholeheartedly that no one should be singled out solely on the basis of a genetic predisposition to a particular disease or condition. That is why I believe fundamentally that the amendments to the Canadian Human Rights Act should remain in this bill as a matter falling squarely within the federal jurisdiction.
As all members of this House are aware, it is our duty as parliamentarians to ensure that we fundamentally respect the Constitution before passing any laws. Part of that duty means that we must remain vigilant of the constitutional division of powers between the federal Parliament and our provincial counterparts. In particular, clauses one through seven of Bill S-201, which would enact the genetic non-discrimination act, or GNDA, intrude into provincial jurisdiction over contracts and the provision of goods and services.
This is not about abstract or academic concerns, nor is it about solely co-operative and respectful federalism, which forms the bedrock of democracy in this country. This is a matter of our fundamental obligation, as members of Parliament, to ensure that legislation complies with our Constitution.
I share the concerns previously expressed by the government. Cabinet is certainly not alone in this view, as a number of the provinces have written to the government in opposition to the GNDA portion of Bill S-201. I will return to these letters shortly, but first I will offer some background on the constitutional responsibilities we have with respect to our provincial partners.
The Constitution Act of Canada calls for a separation of powers between the federal Parliament and the provincial and territorial legislative assemblies by theme. Based on these shared jurisdictions, the Parliament of Canada can only legislate on the powers included in the Constitution and residual powers, while provincial legislatures have their own areas of jurisdiction.
To determine whether the federal legislation respects this division of powers, the courts look to whether the law's “pith and substance”, what the law is really about, relates to a federal area of power.
The act to prohibit and prevent genetic discrimination prohibits any person from requiring an individual to undergo a genetic test or disclose the results of a genetic test as a condition of offering or maintaining specific conditions in a contract or agreement, and of providing goods or services.
When we look at this context, it is clear that the legislation in question, in its wording and substance, regulates contracts and the provision of goods and services. These things fall fully under provincial legislative jurisdictions over property and civil rights.
The Constitution engages concerns that are bigger than any one piece of legislation, no matter how laudable its intent. As written, the GNDA impedes on a critical set of powers which belongs exclusively to the provinces.
I will now focus my attention to the responses from the provincial governments. Over the past few weeks, our government has received a series of letters from the provinces of Quebec, British Columbia, and Manitoba on the matter of Bill S-201. Every one of these letters suggest that the act to prohibit and prevent genetic discrimination would encroach on an exclusively provincial jurisdiction.
In one letter co-signed by three Quebec ministers, the Hon. Stéphanie Vallée, minister of justice and attorney general of Quebec, the Hon. Carlos Leitão, minister of finance, and the Hon. Jean-Marc Fournier, minister responsible for Canadian relations and the Canadian francophonie, opposed the act to prohibit and prevent genetic discrimination.
They said that by virtue of the subject matter of the bill, it constitutes a clear intrusion in exclusively provincial jurisdictions. They add that the regulation of contracts and the provision of goods and services are in fact matters that fall under provincial jurisdiction. They say that, like us, they refer to the jurisdiction of the provinces and the Supreme Court's position in Reference re Assisted Human Reproduction Act, whereby the extent of Parliament's power to legislate criminal law must not upset the balance of the division of powers.
The ministers concluded by suggesting that there should be a more collaborative and respectful approach to the federal-provincial division of powers in order to address the issue of genetic discrimination.
Next is a letter from the Hon. Cameron Friesen, the Minister of Finance in Manitoba. Minister Friesen expresses similar concerns to those of his Quebec colleagues, stating, “We have consulted with other governments and among my staff, and we agree that there is considerable potential for this act to stray into areas of provincial jurisdiction over insurance. As you might expect, provinces are not inclined to relinquish our constitutional authority, and certainly not without discussion. Provinces will likely be forced to seek judicial review on the validity of this legislation if it receives royal assent.”
Minister Friesen also draws attention to the broader policy discussion regarding disclosure of genetic information that ought to occur between the federal and provincial governments before comprehensive legislation is passed.
The third letter comes from the Hon. Suzanne Anton, the Minister of Justice and Attorney General of British Columbia. Minister Anton begins by noting that the B.C. government is “very supportive” of the intention behind Bill S-201. She underscores her government's commitment to the protection of basic human rights, and raises significant concerns with Bill S-201.
Minister Anton states, “However, we share the view...that the proposed Act may go beyond Parliament's legislative jurisdiction. In fact, we would identify the following considerations relative to the issues raised by this Bill: 1...the proposed Bill has the potential to encroach in a number of areas of provincial jurisdiction, and as such, would benefit from a more comprehensive review and amendment prior to passage; and 2. Proportionality: In reviewing the potential consequences for an act of prohibited discrimination under the Bill relative to a comparable discrimination under human rights legislation, it appears that the consequences of this Bill would be significantly greater and arguably disproportionate relative to the consequences of actual discrimination.” The minister concludes by stating that as a result of these concerns, the Government of British Columbia opposes Bill S-201 in its current form.
In reviewing these letters, there is no doubt that as a government we are running the risk of provoking and impeding upon the jurisdiction of our provincial partners. That is why we have proposed the deletion of clauses 1 through 7 of Bill S-201. It is not because of disagreement with the stated goal of the bill. In fact, the contrary is true. It is because of a sincere belief in upholding the fundamental balance of federalism, without which our country cannot function. This issue is too important to not get right.
In my remaining time, I will briefly address reasons for proposing the deletion of clause 8 of Bill S-201, which contains the amendments to the Canada Labour Code, CLC. Employment-related discrimination in Canada is typically addressed by human rights legislation like the Canadian Human Rights Act, not by labour legislation. There is concern about singling out one specific form of discrimination for protection in the CLC, and about establishing a separate complaints mechanism under the CLC that would only consider complaints of genetic discrimination. By amending both the CLC and the Canadian Human Rights Act, we would be creating two parallel and overlapping avenues for redress. This would be confusing for employers and employees, and could result in conflicting decisions and an inefficient use of public resources. In Canada, addressing discrimination falls squarely under the purview of the Canadian Human Rights Commission, and that is where it must remain.
Bill S-201 also departs from the traditional and respectful approach to labour law reform, which involves consultation and consensus building between employers, labour unions, and the federal government. For these reasons, clause 8 of this bill should be deleted.
While recognizing the tremendous work that has gone into the development of Bill S-201, only the amendments to the Canadian Human Rights Act should be supported by the House.
In closing, I wish to emphasize that all Canadians should be protected from genetic discrimination, a matter that requires ongoing co-operation between federal and provincial governments. Such important intergovernmental co-operation must and will continue to protect the rights of all Canadians.