Genetic discrimination: it’s criminal!

The Supreme Court of Canada has upheld sections 1 to 7 of the Genetic Non-Discrimination Act (the Act) as a valid exercise of the federal criminal law power¹. Among other things, the Act prohibits individuals and corporations from forcing individuals to disclose the results of genetic tests as a condition of obtaining access to goods, services or contracts. On a reference by the government of Québec, the Québec Court of Appeal held that sections 1 to 7 of the Act were ultra vires Parliament’s criminal law power because they lacked any real criminal law purpose. In a 5-4 decision, the Supreme Court of Canada reversed the Québec ruling (Torys acted for the Canadian Life and Health Insurance Association, who intervened in the case).

What you need to know

• The Genetic Non-Discrimination Act is a valid exercise of Parliament’s criminal law power under section 91(27) of the Constitution Act, 1867.
• Sections 1 to 7 of the Act establish various prohibitions in respect of genetic testing. Among other things, they prohibit:
  • individuals and corporations from refusing an individual access to goods, services and contracts because the individual refused to take a genetic test, or refused to disclose the results of a genetic test; and
  • using individuals’ genetic test results without their written consent in the areas of contracting and the provision of goods and services.
• The Supreme Court’s three sets of reasons in this decision demonstrate that the case turned almost entirely on how the law was characterized and whether it had a valid criminal law purpose:
  • The two sets of majority decisions held that the law was about providing individuals control over their personal information. Both emphasized privacy concerns, autonomy and the idea that fears over how genetic testing information would be used could lead to health-related harms.
  • The dissent held that the true aim of the provisions is to regulate contracts, particularly contracts of insurance and employment. The dissenting judges found that the provisions were intended to remove a “stumbling block”—fear of how genetic testing information would be used—so that Canadians would take advantage of genetic tests. They concluded that the provisions were aimed at promoting health benefits, not targeted at any “public health evil,” and were outside the jurisdiction of criminal law power.
• Employers and businesses will need to ensure that they adapt their procedures to prevent violations. As this is criminal law, sanctions include fines of up to $1,000,000 and imprisonment of up to five (5) years.

The Genetic Non-Discrimination Act

The Genetic Non-Discrimination Act arose from a private member’s bill introduced in the Senate in December 2015. While most private members’ bills languish on the order paper, the Senate passed the bill by unanimous vote. The government opposed the bill, taking the position that it lacked the constitutional authority to enact it. However, it did not require party backbenchers to vote against it, and it passed through the House of Commons with a strong majority.

The Act defines—and makes it a criminal offence to engage in various conduct in respect of—genetic testing:

• Section 2 of the Act defines a genetic test as “a test that analyzes DNA, RNA or chromosomes for purposes such as the prediction of disease or vertical transmission risks, or monitoring, diagnosis or prognosis.”
• Sections 3, 4 and 5 establish prohibitions relating to genetic tests. Individuals and corporations cannot:
  • force individuals to take genetic tests or disclose genetic test results as a condition of obtaining access to goods, services and contracts;
  • refuse an individual access to goods, services and contracts because they have refused to take a genetic test or refused to disclose the results of a genetic test; or
  • use individuals’ genetic test results without their written consent in the areas of contracting and the provision of goods and services.

The term “genetic discrimination” in the title of the Act refers to the possibility that people will be treated differently according to their genetic profile. For example, someone with genetic markers for certain diseases may be assessed higher premiums for life, health or disability insurance.

The regulation of contracts is generally a matter of property and civil rights and within exclusive provincial jurisdiction under section 92(13) of the Constitution Act, 1867. However, Parliament invoked its section 91(27) criminal law power to pass the Act, as was clear from the form of the legislation.

Shortly after it was enacted, the Government of Québec referred to the Québec Court of Appeal the question of whether Parliament has the constitutional authority to enact sections 1-7 of the Act. In an interesting twist, the Attorney General of Canada’s position was that these provisions are outside Parliament’s jurisdiction over criminal law. A unanimous Québec Court of Appeal agreed in a 5-0 ruling, concluding that the provisions could not be upheld under the criminal law power because they lacked any valid criminal law purpose. However, the Supreme Court of Canada reversed this ruling in a 5-4 split decision.

The SCC’s decision: protecting autonomy, privacy and health—or regulation of contracts?

Section 91(27) of the Constitution Act, 1867 gives Parliament the exclusive authority to make laws in relation to criminal law. Courts have held that the criminal law power is “broad and plenary.” It has been used to uphold legislation regulating tobacco advertising, the environment, and excessively high rates of interest for borrowing and lending. It is well-accepted that a law is a valid exercise of the criminal law power if, in pith and substance, it: (1) consists of a prohibition; (2) is accompanied by a penalty; and (3) is backed by a criminal law purpose. There was no dispute that the Genetic Non-Discrimination Act met the first two criteria. The split in the Court turned entirely on the judges’ characterizations of the legislation, and in particular, whether the impugned provisions were directed to a valid criminal law purpose.

Majority reasons

The Act is about protecting personal information and preventing discrimination. Emphasizing the title and text of the Act, as well as its legislative history and parliamentary debates, Justices Abella, Karakatsanis and Martin held that in enacting the Genetic Non‑Discrimination Act, Parliament sought to both prohibit genetic discrimination and alleviate Canadians’ fear of suffering genetic discrimination. They emphasized the deeply personal nature of decisions about genetic testing, and concluded that Parliament saw genetic test results relating to health as “particularly vulnerable to abuse and discrimination.” As a result, Parliament sought to fill a gap in Canada’s laws that made individuals vulnerable to genetic discrimination in contracting and the provision of goods and services. They concluded that “in pith and substance, ss. 1 to 7 of the Act protect individuals’ control over their detailed personal information disclosed by genetic tests in the areas of contracting and the provision of goods and services in order to address fears that individuals’ genetic test results will be used against them and to prevent discrimination based on that information.”

The Act responds to threats to privacy, autonomy, equality, public health. In upholding the legislation, Justices Abella, Karakatsanis and Martin rejected the idea that valid criminal law must be directed to an “evil.” Instead, they held that a law will have a criminal law purpose if it represents Parliament’s response to a threat of harm to public order, safety, health or morality or fundamental social values, or to a similar public interest. No particular degree of harm must be established. Parliament must simply have acted in response to a reasoned apprehension of harm to one or more of these public interests. They concluded that this law represents Parliament’s response to emerging threats to autonomy, personal privacy, equality and public health and is therefore valid criminal law.

The Act is about protecting health by removing barriers to genetic testing. In a concurring opinion, Justices Moldaver and Côté agreed that sections 1 to 7 of the Act are valid, but disagreed on the underlying analysis. They held that the pith and substance of the provisions is to “protect health by prohibiting conduct that undermines individuals’ control over the intimate information revealed by genetic testing.” In other words, Parliament sought to remove barriers to genetic testing so that individuals would be free to have tests without fear of how the results would be used. On this theory, sections 1 to 7 are directed to the valid criminal law purpose of targeting detrimental health effects, and are therefore a valid exercise of the criminal law power. Justices Moldaver and Côté did not comment on the requisite degree of harm that is required for valid criminal law. In their view, the legislation was valid on any standard of harm because there was evidence of people refraining from genetic testing out of fear as to how the results would be used, thereby suffering significant harm or putting themselves at risk.

Dissent

The Act is about regulating contracts for goods and services. Chief Justice Wagner and Justices Brown, Rowe and Kasirer dissented. Emphasizing the actual text of the legislation, they held that the pith and substance of sections 1 to 7 of the Act was “to regulate contracts and the provision of goods and services, in particular contracts of insurance and employment, by prohibiting some perceived misuses of one category of genetic tests, the whole with a view to promoting the health of Canadians.” Because promotion of beneficial health practices is not a valid criminal purpose, the provisions were not valid criminal law. The dissenting judges also disagreed with the majority as to the level of harm required. Relying on the 1951 Margarine Reference, the dissenters held that in order to be valid criminal law, legislation must be directed at an “evil or injurious or undesirable effect upon the public.” The threat must be well defined, and real in the sense that Parliament must have a concrete basis and a reasoned apprehension of harm. Here, there was “nothing on the record suggesting that the prohibited conduct is a threat to Canadians.”

Immediate and long-term implications

The Act applies generally to the provision of goods and services. Employers and businesses will need to ensure that they adapt their procedures to prevent violations. As this is criminal law, sanctions include fines of up to $1,000,000 and imprisonment of up to five (5) years. The implications of this decision have already been felt in the insurance industry, which has been complying with the Act and will now have to make those practices permanent. Legislation in every province requires prospective insureds to disclose any information that is material to the insurance². This is referred to as the principle of equal information. Failing to disclose or misrepresenting this information renders the contract voidable by the insurer. The courts will have to work out how the Act affects this fundamental principle of insurance law.

The long-term implications of this decision, however, may be more troubling. The majority’s expansive interpretation of the Criminal Law power means that Parliament may be able to regulate a whole variety of matters previously considered to be within provincial authority under “property and civil rights.” So long as the form of the regulation is amendments to the Criminal Code, and there is some ostensible relationship with health and/or privacy (or perhaps autonomy or equality), it appears that at least some judges of the Supreme Court will uphold the provision. How and when Parliament chooses to use this power in the future remains to be seen. Predicting the outcome of future decisions regarding the scope of the criminal law power will be difficult in light of the divided Court in this case.

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¹ S.C. 2017 c. 3

² See for example, section 183(1) of Ontario’s Insurance Act and art. 2408 of the Civil Code of Quebec