The Genetic Non-Discrimination Act: A Valid Exercise of the Federal Criminal Law Power? (Part 1)

This is the first of a two-part post discussing the constitutionality of the Genetic Non-Discrimination Act, SC 2017, c 3. Part I provides the legal context for the constitutional issues surrounding the legislation, and presents the arguments for the act as a valid exercise of the federal criminal law power. Part II outlines the arguments for the Act as an invalid exercise of federal authority and considers several policy arguments which highlight the potential benefits and limitations of the legislation. 

Given royal assent on 4 May 2017, Bill S-201, An Act to prohibit and prevent genetic discrimination, enacted the Genetic Non-Discrimination Act, SC 2017, c 3 [the Act], which establishes a criminal prohibition on “[requiring] an individual to undergo a genetic test” or “to disclose the results of a genetic test” as a “condition of providing goods or services,” or entering into contractual relations. Applicable to “any person,” apart from health care practitioners and researchers, the legislation has been defended as a valid exercise of the federal criminal law power enumerated in section 91(27) of the Constitution Act, 1867, (UK), 30 & 31 Vict, c 3 [the Constitution Act]. More specifically, it has been championed as aiming to promote the health and personal security of Canadians by providing protection against genetic discrimination, a goal that would fall squarely within the scope of the federal criminal law power. However, this assertion has been challenged on the grounds that the prohibition is in pith and substance a regulation of the insurance industry, a matter of property and civil rights pursuant to section 92(13) of the Constitution Act, and is thus ultra vires. The underlying rationale for this argument is that the Act prevents insurance companies from requesting genetic information from customers.

Seeking an opinion on the legislation’s constitutionality, the Quebec government has requested a reference on the issue from the Quebec Court of Appeal (hearing to be scheduled). The question before the Quebec Court of Appeal and the heart of the debate surrounding the Act asks: What is the dominant characteristic of sections 1 to 7 of the Genetic Non-Discrimination Act? Is the Act in “pith and substance” ensuring the protection of the health of Canadians by allowing them to safely and securely undergo genetic testing? Or is its “main thrust” to regulate the insurance industry by making it illegal to request genetic information when evaluating customers?

In advance of the reference, and quite possibly a future reference from the Supreme Court of Canada (“SCC”), the following post will examine the issue and provide insight into the arguments on both sides of the debate. In Part I, below, I provide the necessary legal context for understanding the issues surrounding the legislation, as well the arguments for its validity.

The Pith and Substance Doctrine – Identifying the “Dominant Characteristic” of the Legislation

In determining its views on the constitutionality of the legislation, the Quebec Court of Appeal will largely be applying the pith and substance doctrine. The doctrine calls upon courts to determine the pith and substance or dominant characteristic of the challenged legislation by asking: What is the true purpose of this law, as opposed to its stated or apparent purpose? To answer this question, courts must focus on both the purpose of the law and its legal effects by examining factors such as:

• The legislative scheme and objects, including the preamble or any purpose clauses;
• The legal effects and practical effects;
• The previous state of the law;
• The legislative context and history (i.e. Hansard record of debates, inquiries, reports);
• The chronology of events and the broader social and legal context that led to the introduction of the legislation; and
• Relevant precedent (R v Morgentaler, [1993] 3 SCR 463, para 481).

Based on the information gleaned from this analysis, the court will decide which head of power—in this case, either the federal criminal law power or the provincial power over property and civil rights—the legislation falls into. However, legislation often does not fit neatly into watertight compartments and often has features that fall within different heads of powers. As such, the doctrine requires courts to make a crucial choice in determining which of these features is “dominant” and which is “merely incidental.”

Arguments for the Act as a Valid Exercise of the Federal Criminal Law Power

There are a number of arguments in favour of the conclusion that the legislation is in pith and substance a criminal law. First, quite plainly, the title of the legislation is the Genetic Non-Discrimination Act, a broad title suggesting an aim of preventing genetic discrimination writ large, and not in relation to any specific industry.

Second, the legislation appears to meet the requirements for a valid criminal law as laid out by Justice Rand in the Margarine Reference, [1949] SCR 1, paras 49-50 [Margarine Reference]: a criminal law is any law that has as its dominant characteristic (1) the prohibition of an activity, (2) subject to penal sanctions, (3) for a “public purpose” of “[public] peace, order, security, health, [and] morality.” In other words, there must be “some evil or injurious or undesirable effect upon the public against which the law is directed” (Margarine Reference, para 49). According to Professor Hogg, the legislation meets these requirements: There is a “prohibition of genetic discrimination, a penalty for breach of the prohibition, and the only purpose is to prohibit and prevent the evil of genetic discrimination” (Peter W Hogg, “Bill S-201 An Act to Prohibit and Prevent Genetic Discrimination: Notes for presentation to Standing Committee on Justice and Human Rights” (Brief delivered at the Standing Committee on Justice and Human Rights, 22 November 2016) at 1 [unpublished]).

As there is little debate as to the first two components, it is on the third, substantive component, that much of the remaining arguments focus. On this issue, Professor Bruce Ryder agrees with Hogg, arguing that the aim of the provisions “is to promote health and personal security by protecting individuals’ control over the decision whether to undergo testing and over the uses of genetic test results” (Bruce Ryder, “The Constitutional Validity of Bill S-201” (Brief delivered at the Standing Committee on Justice and Human Rights, 22 November 2016) at 10 [unpublished] [Ryder, Brief]). For Ryder, as the provisions apply to “any person” and “do not mention any particular industry or type of actor,” it seems clear that they are broad and not targeted at any specific type of transaction (Ryder, Brief, 10).

This point is particularly relevant as, in the Assisted Human Reproduction Act Reference, [2010] 3 SCR 457 [AHRA Reference], the SCC affirmed that a key factor in assessing the validity of a federal prohibition, such as the Genetic Non-Discrimination Act, is the complexity of the scheme of regulation it puts in place. The more regulatory the prohibition (i.e. the more it departs from the simple criminal law form of prohibition coupled with a penalty), the more likely it is to be seen as seeking to interfere with matters of provincial jurisdiction and thus declared invalid. In this case, the provisions “do not resemble the detailed and extensive regulation of assisted reproduction services” in the AHRA Reference, but are rather akin to the “absolute prohibitions” which were upheld in the reference (Ryder, Brief, 11). Therefore, the broader the prohibition is, the less likely it is to be viewed as a regulatory scheme. Here, the bluntness of the prohibition in the Act seems to clearly distance it from the more intricate and complex regulations that have been struck down as invalid by courts in the past.

An assessment of the Act’s purpose can also be gleaned from Hansard evidence in which Senator James Cowan, the sponsor of Bill S-201, stated that his “purpose was never to target any particular industry, but rather to target and prohibit particular conduct, whoever it is that engages in that conduct” (Debates of the Senate, 42nd Parl, 1st Sess, vol 150 (27 January 2016) at 1450 (James Cowan) [Debates of the Senate]). Rather, he emphasized that the purpose of the legislation is to fill the existing “gap in our laws” which has created a situation where, if “one has genetic testing and discovers that one carries a gene associated with a particular condition or disease, there is no law at either the federal or provincial level that provides protection against what is called ‘genetic discrimination’” (Debates of the Senate, 1430). While Hansard evidence is not overly influential in a court’s decision, it seems here that the sponsor clearly indicated that the Act’s objective is to rectify a limitation in the law rather than increase regulation of the insurance industry.

Further, the Senator later stated that despite the fact that a previous version of the Bill referenced the insurance industry, that provision was “actually an exemption from the prohibitions for high-end [insurance] policies” intended to alleviate the concerns of the industry in regards to “large policies” (Debates of the Senate, 1450). This exemption would have allowed insurers to request genetic information for specific high-end policies where more precise actuarial information would be necessary. Cowan also noted that the provision had been removed and in the final version of the Bill, the word “insurance” does not appear (Debates of the Senate, 1450). This amendment, according to Professor Pierre Thibault, establishes that the Act no longer encroaches on the provincial jurisdiction over matters of insurance and is thus constitutionally valid (Pierre Thibault, “Bill S-201: Revised Version” (Brief delivered at the Standing Committee on Justice and Human Rights, 29 February 2016) at 1 [unpublished]).

While obviously a relevant issue, I am not as confident that the removal of the word “insurance” in this case is wholly influential, as the clause, in establishing a simple exemption, did not seem to increase the complexity of the legislative scheme to the point of interference with provincial regulation. It is no secret that the legislation will have consequences for the insurance industry, so why would an explicit mention make a significant difference? The question of the legislation’s true purpose goes further than its explicit language. The mere presence or absence of the word “insurance” will not likely define its purpose. However, it does seem that the Act’s current blunt and expansive prohibition is well in line with legislation that has been upheld in the past. As such, from a legal standpoint, it appears that the Act is a valid exercise of the criminal law power, despite its clear consequences for the insurance industry.