Prohibiting genetic discrimination: a valid criminal law subject, according to the Supreme Court of Canada
In a contentious 5-4 split decision, with 3 justices providing the main reasons, 2 justices concurring and 4 judges dissenting, the Supreme Court of Canada has ruled that the Parliament of Canada has the power to prohibit genetic discrimination.1 Specifically, Justice Karakatsanis found that the purpose of the Genetic Non-Discrimination Act is to ensure that individuals’ genetic test results will not be used against them and to prevent any form of discrimination based on that information. This, according to the Court, falls squarely within Parliament’s criminal law powers under s. 91(27) of the Constitution Act of 1867 because it responds to a threat of harm to several overlapping public interests protected by the criminal law – autonomy, privacy, equality and public health.
In 2017, Parliament passed the Genetic Non-Discrimination Act (“Act”), also known as Bill S-201.2 While the Trudeau government opposed Bill S-201, it did not force the liberal backbenchers to vote against it. These backbenchers joined the opposition parties in voting 222-60 in favour of the Bill. Section 2 of the Act broadly defines a genetic test as a test that analyses DNA, RNA or chromosomes to predict the likelihood that someone will contract a disease or to monitor a diagnosis or prognosis. Sections 3, 4 and 5 of the Act list a series of prohibitions related to genetic testing. For example, section 3 prohibits individuals or corporations from forcing someone to undergo a genetic test as a condition for receiving goods and services or for entering into a contract. Anyone found guilty of violating the Act can face up to 5 years in prison or be fined up to one million dollars.3
Believing that Parliament was encroaching on its jurisdiction, the Government of Quebec asked the Quebec Court of Appeal to determine the constitutionality of sections 1 through 7 of the Act. The Court of Appeal unanimously held that the purpose of the Act was to encourage Canadians to undergo genetic testing by allaying their fears that the results would be used against them in the context of insurance or employment contracts.4 As such, the impugned provisions were deemed unconstitutional in that the promotion of access to genetic tests, as important as that may be, is not a valid criminal law purpose. The Canadian Coalition for Genetic Fairness, an intervener before the Court of Appeal, appealed the decision by right to the Supreme Court.
The Supreme Court was called upon to determine whether Parliament had the power under s. 91(27) of the Constitution Act of 1867 – the criminal law power – to enact sections 1 through 7 of the Act. To properly answer this question, the Court had to first characterize the impugned provisions and then determine whether they fall under the umbrella of Parliament’s criminal law jurisdiction.
To properly characterize legislation, a court must identify its “pith and substance”. This requires an examination of both the purpose and the effects of a law in order to determine its true essence. Justice Karakatsanis, joined by Justices Abella and Martin, found that the intrinsic and extrinsic evidence (the title of the Act, the text and the parliamentary debates) provide strong overall evidence that the purpose of the impugned provisions is to prohibit genetic discrimination in the broad areas of contracting and the provision of goods and services. As for its effects, the Act gives individuals control over their genetic information by prohibiting the imposition of genetic tests and the unauthorized use of genetic test results. Taken as a whole, Justice Karakatsanis concluded that the pith and substance of sections 1 to 7 of the Act was, therefore, to combat genetic discrimination. In a set of concurring reasons, Justices Moldaver and Côté held that the pith and substance of the impugned provisions is to protect health by prohibiting conduct that undermines individuals’ control over their personal information revealed by genetic testing. As for the dissent, Justice Kasirer, joined by Chief Justice Wagner and Justices Brown and Rowe, found that the pith and substance of sections 1 to the 7 of the Act is neither to combat and prohibit genetic discrimination nor to control the use of private information revealed by genetic testing. Rather, their true aim is to regulate contracts, namely employment and insurance contracts, in order to encourage Canadians to undergo genetic tests without fear that those tests would be misused.
Once the pith and substance of the impugned provisions was determined, the Court then turned to the issue of classification. As Justice Karakatsanis notes, a law will be valid criminal law if it: (1) consists of a prohibition; (2) is accompanied by a penalty; and (3) is backed by a criminal law purpose. Naturally, it was clear that the impugned provisions met the first two requirements. After all, sections 3, 4 and 5 explicitly prohibit certain practices, and section 7 imposes stringent penalties for any violation. Thus, the real question was whether there was a true criminal law purpose behind these provisions. To respond to this question, Justice Karakatsanis established the following framework by which courts will determine whether a law pursues a valid criminal law purpose:
 Taken together, the requirements established in the Margarine Reference and subsequently applied in this Court’s jurisprudence mean that a law will have a criminal law purpose if its matter 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. As long as Parliament is addressing a reasoned apprehension of harm to one or more of these public interests, no degree of seriousness of harm need be proved before it can make criminal law. The court does not determine whether Parliament’s criminal law response is appropriate or wise. The focus is solely on whether recourse to criminal law is available under the circumstances.
For Justice Karakatsanis, the impugned provisions address multiple public interests traditionally protected by the criminal law. For one thing, the Act protects autonomy, privacy and equality, because forced genetic testing, forced disclosure of results and the collection or use of genetic test results without written consent compromises an individual’s control over access to their genetic information. For another, the Act ensures that individuals are not made to choose between two unenviable options: to seek potentially beneficial genetic testing but be exposed to the risk of having to disclose results; or to forego genetic testing and expose themselves to potentially serious health risks while keeping genetic information private. In doing so, Parliament sought to do away with the rock-and-a-hard-place approach to genetic testing, as this poses a serious threat to public health. For the dissenting judges, it is not enough for the impugned provisions to merely relate to health. They must also involve suppressing an evil or undesirable effect upon the public. Justice Kasirer found that there is no particular public health evil that the Act seeks to suppress. Instead, the Act is made to promote beneficial health practices by encouraging Canadians to undergo genetic testing that could potentially improve their health. This is not, in and of itself, an issue traditionally protected by the criminal law.
In short, the Supreme Court recognized that Parliament could prohibit genetic discrimination under s. 91(27) of the Constitution Act of 1867. This decision is of particular importance to employers and insurers who henceforth are prohibited from demanding that an individual undergo a genetic test or requiring disclosure of genetic test results.
The Reference, however, also highlights the divisions within the Court regarding the appropriate scope of Parliament’s criminal law power. While Justice Karakatsanis held that a reasoned apprehension of harm is necessary for the purposes of the criminal law power, Justice Kasirer and the dissenting judges opted for a more stringent criterion: that of the real and concrete apprehension of harm.
1 Reference re Genetic Non-Discrimination Act, 2020 SCC 17 [Reference]
2 S.C. 2017, c. 3
3 Section 7 of the Act.
4 In the matter of the : Reference of the Government of Quebec concerning the constitutionality of 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)