The Scope of the Federal Criminal Law Power in the Reference re Genetic Non-Discrimination Act
The need to safeguard privacy has long been a mainstay of the Canadian legal system. The right to secure autonomy and control over our private information has been preserved both by federal criminal legislation and the Charter of Rights and Freedoms [Charter], further bolstered by jurisprudence addressing the importance of privacy and autonomy to our dignity as human beings.
What has changed, however, is the meaning of “privacy” itself. Conceptions of what it means to be private have shifted drastically since the growth of biotechnology and the ever-evolving digitization of our world. It appears that the Supreme Court of Canada [SCC], with its decision in Reference re Genetic Non-Discrimination Act, 2020 SCC 17 [Reference re GNDA], is working on catching up.
Factual Background & Procedural History
In 2017, Parliament passed the Genetic Non-Discrimination Act, SC 2017 c 3 [GNDA], which was originally brought to the Senate as a private member’s bill (Bill S-201). The general purpose was to criminalize genetic discrimination. Specifically, it would prohibit people from requiring genetic testing as a condition of accessing goods, services and entering into contracts, and from disclosing the results of genetic testing without written consent.
The GNDA defines a “genetic test” as one that “analyzes DNA, RNA or chromosomes for purposes such as the prediction of disease or vertical transmission risks, or monitoring, diagnosis or prognosis” (GNDA, s. 2). The central prohibitions of the GNDA are outlined in sections 3-5. Section 3 prohibits “any person to require an individual to undergo a genetic test as a condition of (a) providing goods or services […]; (b) entering into or continuing a contract or agreement with that individual; or (c) offering or continuing specific terms or conditions in a contract or agreement,” while section 4 prohibits disclosure of the results of such tests as a condition of any of the above agreements. Section 5 prohibits the use or disclosure of these results without the person’s written consent. A violation of any of these prohibitions is an offence and punishable by a fine of up to $1,000,000 or imprisonment for up to five years (GNDA, s. 7).
Supporters of the bill, including David Lametti, the current Minister of Justice, expressed the increasing importance of such legislative protections to the lives and safety of Canadians, stating that “those who choose to undergo this kind of testing must have confidence their privacy will be respected and that the sensitive information they obtain will not be used to discriminate against them in any capacity.”
The bill was controversial. It eventually received royal assent despite the vocal opposition of then-Minister of Justice, Jody Wilson-Raybould, and Prime Minister Trudeau, who labeled the proposed law unconstitutional on the basis that the federal government would be encroaching on provincial jurisdiction to regulate contracts of employment and insurance, and the provision of goods and services. Wilson-Raybould proposed an amendment to the bill that would have effectively stripped it of its central purpose, leaving behind little more than the inclusion of genetic characteristics as a ground of discrimination covered by the Canadian Human Rights Act, RSC 1985 c H-6. While the amendment was defeated in a vote of 218-59, the debate about the GNDA across party lines reflected tension surrounding the scope and application of the federal criminal law power.
The Quebec Government referred the question of the bill’s constitutionality to the Quebec Court of Appeal [QCCA]. The central issue was whether the GNDA constituted a valid exercise of the federal power to regulate criminal law, as stated in section 91(27) of the Constitution Act, 1867 [CA 1867], or whether it fell within provincial jurisdiction over property and civil rights (CA 1867, s. 92(13)), which includes matters relating to employment, insurance, and the exchange of goods and services. A finding of the latter would mean that the GNDA was ultra vires — outside of Parliament’s jurisdiction— and therefore unconstitutional.
The QCCA held that the GNDA was indeed ultra vires federal jurisdiction. The Court found that “nothing in the record or in reported decisions indicates that the conditions of employment or the information required for employment purposes or the measures to prevent discrimination in employment […] constitute a criminal law object” (In the matter of the: Reference of the Government of Quebec concerning the constitutionality of the Genetic Non-Discrimination Act, 2018 QCCA 2193, para 22) [QCCA Reference re GNDA]. The Court held that there “is no ‘real public health evil’ here that would justify the recourse” to the federal criminal law power (QCCA Reference re GNDA, para 24).
The QCCA found that the risk posed by potential discrimination on the basis of genetic information was not significant enough to displace provincial jurisdiction over property and civil rights, nor did it warrant the exercise of federal criminal protection over the limited criminal law powers allocated to provinces to impose “punishment by fine, penalty, or imprisonment for enforcing any law of the province” (CA 1867, s. 92(15)). The Court therefore found the GNDA unconstitutional. The Canadian Coalition for Genetic Fairness, a group of organizations dedicated to preventing genetic discrimination, appealed the QCCA opinion to the Supreme Court.
A Brief Overview of the Federal Criminal Law Power
Constitutional law jurisprudence has shown that there is a fine and difficult balance to strike between the Parliament’s exclusive jurisdiction over criminal legislation and the provincial ancillary power to include criminal sanctions within provincial legislation. This division of criminal law powers under the Constitution Act, 1867, indicates that while provincial governments can include criminal provisions in otherwise intra vires (within jurisdiction) provincial laws, there are some wider-reaching matters that require federal criminalization. In practice, however, the division is not as clear-cut.
Unlike other areas with some overlapping jurisdiction, there are many subjects that are covered by federal criminal law that are also validly legislated at the provincial level. “Double aspect” matters (Multiple Access Ltd. V McCutcheon,  2 SCR 161 at 182), in which both exercises of law-making power are valid, are often applied in areas relating to criminal law. The underlying tensions of morality and public safety that imbue Canadian criminal law have demanded a symbiotic relationship between both federal and provincial criminal law to meet its ends.
Determining the constitutional validity of legislation — or, in other words, whether a law is a valid exercise of federal or provincial jurisdiction — first requires finding its “pith and substance” (Starr v Houlden,  1 SCR 1366 at 1389 [Houlden]; R v Morgentaler,  3 SCR 463 at 481 [Morgentaler]). Determining the pith and substance of a piece of legislation is a flexible and inexact exercise (Morgentaler, 482) and involves “examining both the purpose and effect of the law” (Houlden, 1389). Other considerations include those that go beyond “the four corners of legislation” and “inquire into the social or economic purposes which the statute was enacted to achieve” (Morgentaler, 482). This could include the context surrounding the law’s enactment, its legislative background, and other extrinsic evidence (Morgentaler, 484).
The SCC established the test to determine the validity of an exercise of the federal criminal law power in Reference re Validity of Section 5(a) Dairy Industry Act,  SCR 1 [Margarine Reference]. Importantly, the Court expanded the definition of a criminal law beyond just a “prohibition coupled with a penalty” (Proprietary Articles Trade Association v Attorney General for Canada,  2 DLR). The validity of a federal criminal law also depends on its public purpose, such as “public peace, order, security, health, [and] morality” (Margarine Reference, 51). Ultimately, the pith and substance of a valid federal law must be found collectively to include a prohibition, a penalty and, most importantly, a public purpose aimed towards preserving safety and suppress “some evil or injurious or undesirable effect” (Margarine Reference, 50).
The Supreme Court Reference
The majority opinion, written by Karakatsanis J, found that the GNDA is a valid exercise of the federal criminal law power, owing to the law’s valid criminal law purposes, and is therefore constitutional pursuant to s. 91(27) of the Constitution Act, 1867.
At the outset, the Court recognized the importance of the principle of cooperative federalism, which involves “increased tolerance for overlap” between federal and provincial jurisdictions, but also notes that this overlap “does not override or modify the scope of legislative authority conferred by the Constitution” (Reference re GNDA, paras 24-25). The Court contextualized its decision by emphasizing while cooperative federalism is necessary in areas such as criminal law, it should not be used as a justification for encroachment upon clearly defined division of powers (para 25).
The Court’s characterization of the GNDA’s purpose suggests that the Act aims “to combat discrimination based on information disclosed by genetic tests by criminalizing compulsory genetic testing, compulsory disclosure of test results, and non-consensual use of test results in a broadly-defined context” (para 39). The “broadly-defined context” refers to “contracting and the provision of goods and services” (para 49). The Court outlined that the Act’s effects grant people “control over the decision of whether to undergo genetic testing and over access to the results of any genetic testing they choose to undergo” (para 54). It also identified the consequent effect was “[reducing] the risk of genetic discrimination” and potentially “encourage[ing] individuals to undergo genetic testing” without the risk of such discrimination (para 56).
Next, the Court unpacked the argument that the law’s effect on insurance companies indicates that its pith and substance is to regulate matters squarely within provincial jurisdiction, namely property and civil rights. This particular effect could come about if insurance companies increase insurance premiums overall, in order to offset additional costs arising as a result of insuring people who will have health problems later in life, and are not compelled to disclose under the GNDA. In response to this concern, Karakatsanis J wrote that while the GNDA will indeed have an effect on the insurance industry, this effect “does not overtake the prohibitions’ direct legal and practical effects in the pith and substance analysis” (para 59). The Court found that “though there is no doubt that parliamentarians were concerned about genetic discrimination in the insurance context, it does not follow that the prohibitions are essentially about insurance,” and such a narrow characterization “fails to capture the broad purpose and effects of the legislation” (para 62).
In applying the Margarine Reference test to determine whether the GNDA is a valid federal criminal law, the SCC held that its “essential character” is a response to the risk of harm that genetic discrimination poses to public safety. Ultimately, the Act’s public purpose is to preserve the interests commonly protected by federal criminal law, namely “autonomy, privacy and the fundamental social value of equality, as well as public health” (para 80). Importantly, the SCC recognized the potential for genetic information to be used and abused in a myriad of ways. Legislative initiatives to combat this potential for abuse fall squarely within federal jurisdiction to “protect people from emerging threats to privacy, autonomy and equality” (para 92).
Aside from the clear message that the criminalization of certain kinds of discrimination can be a valid exercise of the federal criminal law power, the SCC Reference on the validity of the GNDA indicates that while technological evolution is now inseparable from capitalist gain, Canadian courts have the power to place the safety of the Canadian public over the economic interests of private corporations.
Karakatsanis J’s majority opinion does its part to catch up to an ever-shifting world of biotechnology. While biotechnology can positively transform prospects for medical care, it also poses great risks when sensitive information falls into the wrong hands. It is powerful that the Court recognized that the interests of insurance companies cannot trump the very real privacy and autonomy interests of the Canadian people, as enshrined in other areas of the legal system.
Beyond the discussion of constitutionality and division of powers, a central issue underlying the Reference is the question of genetic discrimination itself. In a society already steeped with ableism in every aspect of its legal system, it has never been more necessary to enact interventive legislation that tangibly protects people with disabilities — and, in this case, people with a genetic predisposition for certain disabilities — from discrimination.
The very idea that a corporate entity would require the disclosure of one’s genetic information as a condition for the provision of goods and services, is indicative of a much broader moral issue. It begs the question: rather than criminalize genetic discrimination — thereby further legitimizing and expanding a carceral system that is founded on ableism — how can the discussion seen by the Court here serve as a catalyst for a bigger conversation about our systemic devaluing of people with disabilities?