Jan Meisels Allen
In a recent decision, the Quebec Court of Appeals declared the 2017 Genetic Non-Discrimination Act (the "Act"), adopted by the federal Parliament and which came into force on May 4, 2017, to be ultra vires because of its encroachment on the jurisdiction of provincial legislatures. (Ultra Vires- beyond one's legal power or authority. (https://www.law.cornell.edu/wex/ultra_vires). This is being appealed to Canada’s Supreme Court by the Canadian Coalition for Genetic Fairness. The Supreme Court will have to decide on the constitutional validity of a law under the Constitution's Division of powers, and incidentally, on which level of government is entitled to legislate on protection against genetic discrimination for Canadians. The Court heard the case on October 4th, a ruling is not expected until sometime in 2020.
The question put before the Court was:
"Is the Genetic Non-Discrimination Act enacted by sections 1 to 7 of the Act to prohibit and prevent genetic discrimination, (S.C. 2017, c. 3) ultra vires to the jurisdiction of the Parliament of Canada over criminal law under paragraph 91 (27) of the Constitution Act, 1867?"
They then had to analyze the sections of the Act. The Court found that the main purpose of the Act was not to address a criminal law object but rather to protect and to promote health by fostering the access by Canadians to genetic tests for medical purposes
The Quebec Court opined that the main purpose of the Act was to promote the health of Canadians by encouraging access to genetic tests for medical purposes. Therefore, the Act sought to regulate matters falling under the province's jurisdiction, namely genetic discrimination in employment and insurance contracts (civil and property rights), rather than criminal law, which would fall under federal jurisdiction. This is the crux of the court case: whether the Act is a valid exercise of Parliament’s criminal law power or does the aw really regulate the insurance industry an area that falls under provincial jurisdiction.
The case is also a test of Parliament’s criminal law power. The genetic characteristics as a ground for discrimination under the Canadian Human Rights Act and the Canada Labor Code. Which were unaffected by the Quebec decision.
Of course privacy is a key element as one’s genetic makeup is something that should only be used with one’s permission.
Prior to the Genetic Non-Discrimination Act Canada did not have legislation in force that addressed genetic discrimination and particular protection of the human genome. The purpose of the legislation was to prohibit and prevent genetic discrimination in requiring any individual from undergoing genetic testing or disclosing genetic test results under certain circumstances. The Act also amended the Canada Labor Code and the Canadian Human Rights Act to address discrimination, particularly in the areas of insurance and labor relations, by adding the terms "genetic characteristics".
The Act went forward by the federal parliament although there was concern at the time due to the Constitution’s division of powers. The issue is if the regulation of contracts and provision of goods and services in the Constitution is being violated. Following its adoption, it did not take long for the Government of Québec to issue a decree in order to ask the Court of Appeal to verify the constitutional validity of the law, on the grounds that the Act encroaches on the jurisdiction of provincial legislatures to regulate private law. Interestingly, for the first time the government of Canada has intervened to challenge the constitutionality of a bill passed by Parliament, the Attorney of Canada rather than supporting the constitutionality of a federal law joined the Quebec Attorney General to defend Quebec’s ruling on jurisdictional grounds.
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There may be legislation introduced in the provinces to protect their citizens while this is being reviewed by the Supreme Court. While I heard about a campaign for such legislation in the Province of Ontario, I was not able at this time to find the bill.
Jan Meisels Allen
Chairperson, IAJGS Public Records Access Monitoring Committee