Canadian Coalition for Genetic Fairness Appellant v. Attorney General of Canada and Attorney General of Quebec, 2020 SCC 17

SUPREME COURT OF CANADA Citation: Reference re Genetic Non-Discrimination Act , 2020 SCC 17, [2020] 2 S.C.R. 283 Appeal Heard: October 10, 2019 Judgment Rendered: July 10, 2020 Docket: 38478 Between: Canadian Coalition for Genetic Fairness Appellant and Attorney General of Canada and Attorney General of Quebec Respondents - and - Attorney General of British Columbia, Attorney General of Saskatchewan, Canadian Life and Health Insurance Association, Canadian Human Rights Commission, Privacy Commissioner of Canada and Canadian College of Medical Geneticists Interveners Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.

Reasons: (paras. 1 to 108) Karakatsanis J. (Abella and Martin JJ. concurring) Concurring Reasons: (paras. 109 to 151) Moldaver J. (Côté J. concurring) Dissenting Reasons: (paras. 152 to 275) Kasirer J. (Wagner C.J. and Brown and Rowe JJ. concurring)

IN THE MATTER OF a Reference by the Government of Quebec to the Court of Appeal 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 Canadian Coalition for Genetic Fairness Appellant v.

Attorney General of Canada and Attorney General of Quebec Respondents and Attorney General of British Columbia, Attorney General of Saskatchewan, Canadian Life and Health Insurance Association, Canadian Human Rights Commission, Privacy Commissioner of Canada and Canadian College of Medical Geneticists Interveners Indexed as: Reference re Genetic Non-Discrimination Act 2020 SCC 17 File No.: 38478. 2019: October 10; 2020: July 10.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ. on appeal from the court of appeal for quebec Constitutional law — Division of powers — Criminal law — Genetic tests — Parliament enacting legislation criminalizing compulsory genetic testing and non-voluntary use or disclosure of genetic test results in context of wide range of activities — Whether ss. 1 to 7 of Genetic Non-Discrimination Act, S.C. 2017, c. 3 , are ultra vires Parliament’s jurisdiction over criminal law — Constitution Act, 1867, s. 91(27) .

In 2017, Parliament enacted the Genetic Non-Discrimination Act .

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; cannot 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; and cannot use individuals’ genetic test results without their written consent in the areas of contracting and the provision of goods and services.

Section 6 provides that the prohibitions established by ss. 3 to 5 do not apply to a physician, pharmacist or other health care practitioner, or to a person conducting research in certain respects.

Section 7 provides that doing anything prohibited by ss. 3, 4 or 5 is an offence punishable on

summary conviction or by indictment.

Section 8 of the Act amended the Canada Labour Code to protect employees from forced genetic testing or disclosure of test results, and from disciplinary action on the basis of genetic test results, and ss. 9 to 11 of the Act amended the Canadian Human Rights Act to add genetic characteristics as a prohibited ground of discrimination and to create a deeming provision relating to refusal to undergo genetic testing or disclose test results.

The Government of Quebec referred the constitutionality of ss. 1 to 7 of the Act to the Quebec Court of Appeal, asking whether these provisions were ultra vires to the jurisdiction of Parliament over criminal law under s. 91(27) of the Constitution Act, 1867 . The Court of Appeal answered the reference question in the affirmative, concluding that ss. 1 to 7 of the Act exceeded Parliament’s authority over criminal law. The Canadian Coalition for Genetic Fairness, which had intervened in the Court of Appeal, appeals to the Court as of right.

Held (Wagner C.J. and Brown, Rowe and Kasirer JJ. dissenting): The appeal should be allowed and the reference question answered in the negative. Per Abella, Karakatsanis and Martin JJ.: Parliament had the power to enact the Genetic Non-Discrimination Act under s. 91(27) of the Constitution Act, 1867 .

The pith and substance of the challenged provisions is to protect individuals’ control over their detailed personal information disclosed by genetic tests, in the broad areas of contracting and the provision of goods and services, in order to address Canadians’ fears that their genetic test results will be used against them and to prevent discrimination based on that information. This matter is properly classified within Parliament’s power over criminal law.

The provisions are supported by a criminal law purpose because they respond to a threat of harm to several overlapping public interests traditionally protected by the criminal law —

autonomy, privacy, equality and public health. To determine whether a law falls within the authority of Parliament or a provincial legislature, a court must first characterize the law and then, based on that characterization, classify the law by reference to the federal and provincial heads of power under the Constitution. At the characterization stage, a court must identify the law’s pith and substance. The goal is to determine the law’s true subject matter, even when it differs from its apparent or stated subject matter.

The court will first look to characterize the specific provisions that are challenged, rather than the legislative scheme as a whole, to determine whether they are validly enacted. Identifying a law’s pith and substance requires considering both the law’s purpose and its legal and practical effects. Characterization plays a critical role in determining how a law can be classified, and thus the law’s matter must be precisely defined. The focus is on the law itself and what it is really about. To determine a law’s purpose, a court looks to both intrinsic and extrinsic evidence.

Intrinsic evidence includes the text of the law, and provisions that expressly set out the law’s purpose, as well as the law’s title and structure. Extrinsic evidence includes statements made during parliamentary proceedings and drawn from government publications. Both legal and practical effects are also relevant to identifying a law’s pith and substance. Legal effects flow directly from the provisions of the statute itself, whereas practical effects flow from the application of the statute.

Here, the title of the Act and the text of the prohibitions provide strong evidence that ss. 1 to 7 have the purpose of combatting genetic discrimination and the fear of genetic discrimination based on the results of genetic tests by prohibiting conduct that makes individuals vulnerable to genetic discrimination in the areas of contracting and the provision of goods and services. The prohibitions created by ss. 3 to 5 apply to a wide range of circumstances in which individuals might be treated adversely based on their decision about whether to undergo genetic testing.

They do not target a particular activity or industry, but instead target conduct that enables genetic discrimination.

Section 2 of the Act defines a “genetic test” as an analysis of genetic material for a health-related purpose and therefore speaks to a health-related genetic test. Reading the definition this way supports the conclusion that the Act aims to combat discrimination based on genetic test results, as health-related genetic tests reveal highly personal information — details that individuals might not wish to know or share and that could be used against them. The parliamentary debates provide strong evidence to support the view that the purpose of ss. 1 to 7 is to combat genetic discrimination.

The debates make clear that the immediate mischief that the law was intended to address was the lack of legal protection for the results of genetic testing, which left individuals vulnerable to genetic discrimination and gave rise to fear of genetic discrimination. Those concerns correspond to the title of the Act and the text of the prohibitions.

Parliament’s amendments to the Canada Labour Code and the Canadian Human Rights Act enacted at the same time as ss. 1 to 7 of the Act suggest that Parliament was looking to take a coordinated approach to tackling genetic discrimination based on test results, using different tools. Parliament’s purpose in enacting the provisions in question is borne out in the provisions’ effects. Starting with legal effects, ss. 3 to 5 of the Act prohibit genetic testing requirements and non-consensual uses of genetic test results in a broad range of circumstances.

Section 7 imposes significant penalties for contravening these prohibitions. These prohibitions and penalties will also likely affect the operation of provincial and territorial legislation that requires the disclosure of genetic test results. The most direct and significant practical effect of the prohibitions is to give individuals control over the decision of whether to undergo genetic testing and over access to the results of genetic testing.

The prohibitions do so by preventing genetic testing requirements from being imposed on individuals as a condition of access to goods, services and contracts, and by preventing individuals’ genetic test results from being used non-consensually when they seek to obtain goods and services and enter into contracts. As to classification, s. 91(27) of the Constitution Act, 1867 , gives Parliament the exclusive authority to make laws in relation to the criminal law.

A law will be valid criminal law if, in pith and substance, (1) it consists of a prohibition (2) accompanied by a penalty and (3) backed by a criminal law purpose. Here, as there are undoubtedly prohibitions accompanied by penalties, the only issue is whether ss. 1 to 7 of the Act are supported by a criminal law purpose.

A law is backed by a criminal law purpose if the law, in pith and substance, represents Parliament’s response to a threat of harm to a public interest traditionally protected by the criminal law, such as peace, order, security, health and morality, or to a threat of harm to another similar 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 essential character of the prohibitions in the Act represents Parliament’s response to the risk of harm that the prohibited conduct, genetic discrimination and the fear of genetic discrimination based on genetic test results pose to several public interests traditionally protected by the criminal law: autonomy, privacy, equality and public health. Safeguarding autonomy and privacy are established uses of the criminal law power.

The conduct prohibited by ss. 1 to 7 of the Act poses a risk of harm to two facets of autonomy and personal privacy because individuals have an interest in deciding whether or not to access the detailed genetic information revealed by genetic testing and whether or not to share their test results with others. The risk of harm to these dignity-related interests in the contexts of the provision of goods and services and the conclusion of contracts is significant: the dignity, autonomy and privacy interests in individuals’ detailed genetic information were understood by Parliament to be unique and strong.

The potential for genetic test results to reveal highly personal information about the individual tested and the potential for abuse of genetic test results and the information they reveal are immense. Protecting fundamental moral precepts or social values is also an established criminal law purpose. Genetic discrimination threatens the fundamental social value of equality by stigmatizing and imposing adverse treatment on individuals because of their inherited, immutable genetic characteristics.

In pith and substance, ss. 1 to 7 of the Act are Parliament’s response to the risk of harm that the prohibited conduct and discrimination based on genetic test results pose to autonomy, privacy and equality. Parliament has the power under s. 91(27) to protect people from emerging threats to these interests. This is especially so when Parliament reasonably views the information it is safeguarding as uniquely elemental to identity, and uniquely vulnerable to abuse. Protecting these core interests is an established, proper use of the criminal law power.

Parliament can also use its criminal law power to respond to a reasoned apprehension of harm to public health. Genetic discrimination and the fear of genetic discrimination are barriers to accessing suitable, maximally effective health care, to preventing the onset of health conditions and to participating in research. Here, in pith and substance, Parliament’s action was a response to the harm that vulnerability to and fear of genetic discrimination posed to public health.

Giving individuals control over access to their genetic information by prohibiting forced genetic testing and disclosure of test results and the non-consensual collection, use or disclosure of genetic test results in the areas of contracting and the provision of goods and services targets the harmful fear of genetic discrimination that poses a threat to health. The Act was intended to target that fear.

Per Moldaver and Côté JJ.: There is agreement in the result with Justice Karakatsanis that ss. 1 to 7 of the Act represent a valid exercise of Parliament’s power over criminal law set out at s. 91(27) of the Constitution Act, 1867 . However, there is disagreement as to the pith and substance of ss. 1 to 7: it is to protect health by prohibiting conduct that undermines individuals’ control over the intimate information revealed by genetic testing.

By giving people control over the decision to undergo genetic testing and over the collection, disclosure and use of the results of such testing, Parliament sought to mitigate their fears that their genetic test results could be used against them in a wide variety of contexts. Parliament had ample evidence before it that this fear was causing grave harm to the health of individuals and their families, and to the public healthcare system as a whole. The pith and substance of the impugned provisions is borne out by their purpose and effects.

By enacting ss. 1 to 7 of the Act , Parliament sought to prohibit conduct that was undermining individuals’ control over the information revealed by genetic testing — conduct that was leading to health-related harms. This purpose can be discerned from the structure and content of the Act , and from the parliamentary debates. The text of the impugned provisions is a key source of intrinsic evidence of purpose.

Section 2 sets out the definition of “genetic test”, which is restricted to tests that are taken for health-related purposes. This limited definition is crucial in order to accurately identify the purpose of the prohibitions in ss. 3 to 5 of the Act , since the term “genetic test” lies at the heart of each of those sections. Sections 3 to 5 give individuals control over the profoundly personal information revealed by genetic testing. An additional form of intrinsic evidence is the title of the Act . While the short and

long titles of the Act do not mirror the pith and substance of ss. 1 to 7, they are nonetheless consistent with the purpose identified. This is because reducing the opportunities for genetic discrimination is one of the ways in which the provisions in issue reduce individuals’ fears that their genetic information will be used against them — the barrier to pursuing genetic testing that Parliament identified and sought to remove. Thus, while preventing genetic discrimination is not the dominant purpose of the impugned provisions, it is still an important feature of the legislation.

Although the constitutionality of ss. 8 to 10 of the Act — which amended the Canada Labour Code and the Canadian Human Rights Act — is not in issue, considering ss. 1 to 7 of the Act alongside those sections reveals important distinctions that shed light on the purpose of the impugned provisions. Unlike ss. 1 to 7 of the Act , the amendments in ss. 8 to 10 of the Act prohibit genetic discrimination. This indicates that where Parliament’s dominant objective was to prevent and prohibit genetic discrimination, it did so directly.

This supports the conclusion that the dominant purpose of ss. 1 to 7 is not preventing and prohibiting genetic discrimination, but rather prohibiting conduct that deprives individuals of control over their genetic test results in order to protect health. The parliamentary record bolsters the conclusion regarding the purpose of the provisions in question.

The debates and testimony are directed at the devastating health consequences that were resulting from people foregoing genetic testing out of fear that the personal health information revealed by such testing could be used against them, including in discriminatory ways. To avoid these health consequences, Parliament targeted a disincentive to genetic testing: individuals’ lack of control over the personal health information revealed by genetic testing. It sought to remove this barrier by prohibiting conduct that deprived individuals of that control.

There is agreement with Karakatsanis J. that the most significant practical effect of the Act is that it gives individuals control over the decision of whether to undergo genetic testing and over access to the results of any genetic testing they choose to undergo. Sections 1 to 7 confer near complete control over the specific category of genetic information that Parliament was targeting (i.e. “genetic test” results). These sections give individuals the ability to dictate the manner and extent to which their genetic test results may be collected, disclosed, and used in a wide array of contexts.

This control has cascading effects that ultimately result in the protection of health. By giving individuals control over the intimate health-related information revealed by genetic testing, the pertinent provisions have the effect of reducing their fears that this information will be used against them in myriad ways. At the classification stage, ss. 1 to 7 of the Act are backed by a criminal law purpose because they are directed at suppressing a threat.

Canadians choosing to forego genetic testing and thereby dying preventable deaths and suffering other preventable health-related harms for no reason other than the fear that their genetic test results could be used against them is a threat to health that Parliament was constitutionally entitled to address, pursuant to s. 91(27) of the Constitution Act, 1867 . Beyond addressing the dangers of preventable disease, the impugned provisions also protect other significant facets of health, like privacy and autonomy.

They accordingly represent a valid exercise of Parliament’s power to enact laws in relation to the criminal law. Per Wagner C.J. and Brown, Rowe and Kasirer JJ. (dissenting): The appeal should be dismissed and the reference question answered affirmatively. Sections 1 to 7 of the Act were not enacted within the constitutional authority of Parliament over the criminal law under s. 91(27) of the Constitution Act, 1867 . Rather, they fall within provincial jurisdiction over property and civil rights conferred by s. 92(13).

The pith and substance of ss. 1 to 7 of the Act is 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. Sections 1 to 7 do not satisfy the substantive component of criminal law — a valid criminal law purpose — as Parliament has neither articulated a well-defined threat that it intended to target, nor did it provide any evidentiary foundation of such a threat.

Instead, ss. 1 to 7 substantially affect the substantive law of insurance as well as human rights and labour legislation in all provinces. To determine whether ss. 1 to 7 of the Act are ultra vires Parliament’s jurisdiction over criminal law under s. 91(27) of the

Constitution Act, 1867 , courts must first characterize the law, i.e. determine its pith and substance, and then classify the law and determine whether it comes within the jurisdiction of the level of government that enacted it. The exercise of characterization of impugned legislation must be as precise as possible. The true character of legislation is one which reflects its dominant purpose and effect. While other incidental features of the law may be noted, they should not dictate characterization lest classification be sent down the wrong path.

The court’s inquiry into pith and substance must be anchored in the text of the impugned legislation. The court must also be careful not to let form control the pith and substance inquiry; it should examine the substance of the legislation to determine what the legislature is really doing. In order to discern the purpose for which the impugned provisions were adopted, both intrinsic and extrinsic evidence must be considered. Regarding intrinsic evidence, while a statute’s title can be helpful to identify its pith and substance, legislatures sometimes use titles to other ends. Here, neither the

long title nor the

short title of the Act can be said to reflect clearly the impugned provisions’ true purpose. They do not support a conclusion that ss. 1 to 7 seek to prohibit or prevent discrimination on genetic grounds. They also do not disclose Parliament’s dominant purpose as focused on privacy and autonomy. As no

preamble or purpose

section outlines the raison d’être of the law, the text of the provisions take particular significance in determining their pith and substance. The definition of “ genetic test” in s. 2 is central to identifying the law’s purpose, since the prohibitions in ss. 3 to 5, the exemption in s. 6, and the penalties in s. 7 all rely on this narrow, health-based definition.

Taken together, ss. 1 to 7 aim to prohibit making the provision of goods and services or the making, continuing, or offering of specific terms or conditions of a contract conditional upon an individual undergoing or disclosing the results of genetic testing. The provisions do not prohibit the use of genetic information that may be disclosed voluntarily or obtained through other means, and they do not prohibit genetic discrimination. Sections 1 to 7 are limited in compass to a category of certain health-based genetic tests.

With respect to extrinsic evidence, the amendments to the Canadian Human Rights Act and Canada Labour Code in ss. 8 to 10 of the Act plainly create prohibitions against genetic discrimination which are absent from ss. 1 to 7 of the Act . This demonstrates that the purpose of ss. 1 to 7 is not to prohibit discrimination based on genetic characteristics. While ss. 1 to 7 may offer, to some extent, limited control to individuals over their genetic information, they do not reduce their fears surrounding genetic testing in any real measure, since they do nothing to prohibit genetic discrimination.

Next, the legislative debates are an indicia of the legislature’s intent, but they cannot stand for the Act and replace its provisions. With that said, in this case, the debates generally reveal that genetic tests were considered to be beneficial and viewed as a means of opening avenues to improved health treatment, as they allow Canadians to be aware of risks and change their behaviour. Parliament was focused on the promotion of health and on removing barriers in order to create incentives for genetic testing. The main sectors of focus in the parliamentary record were insurance and employment.

On balance, the debates emphasize that ss. 1 to 7 of the Act were included as a way to encourage Canadians to undergo genetic tests, by mitigating their fears that they would be misused, in particular in respect of insurance and employment. In light of the above, the purpose of ss. 1 to 7 is not to combat discrimination based on genetic characteristics, or to control the use of private information revealed by genetic testing.

Rather, their true aim is to regulate contracts, particularly contracts of insurance and employment, in order to encourage Canadians to undergo genetic tests without fear that those tests will be misused so that their health can ultimately be improved. Immediate effects, and not indirect or speculative effects, are relevant to the validity of a law in so far as they reveal its pith and substance. Here, the dominant effects of ss. 1 to 7 concern the regulation of insurance and the promotion of health rather than the protection of privacy and autonomy or the prevention of genetic discrimination.

The provisions’ focus is on controlling the exchange of information obtained through specific means in relation to contracts and the provision of goods and services, particularly in the insurance industry. Legally, the provisions represent a departure from the provincial law of insurance and human rights legislation in Canada; practically, the insurance market will be affected by the incomplete information insurers receive from some policy-holders.

The definition of “genetic test” in s. 2 of the Act and the conditions placed on contracts and the provision of services in ss. 3 to 5 also indicate plainly that health improvement is the dominant effect sought by ss. 1 to 7 of the Act . The contested provisions seek to improve the health of Canadians through the removal of a stumbling block: the fear that genetic tests will be misused. They also bear upon privacy and autonomy.

However, given the focus on a narrow category of testing and only on genetic information derived from genetic tests, and given that all information about one’s health is considered private, the effects of the impugned provisions on privacy are incidental to the promotion of health. The sole issue at the classification stage is whether Parliament was authorized to enact the impugned provisions under the criminal law power conferred by s. 91(27) of the Constitution Act, 1867 .

A law will be properly categorized as valid criminal law if three essential elements are satisfied: a prohibition, a penalty related to that prohibition, and a valid criminal law purpose. The first two elements are formal requirements while the third is substantive. This tripartite test ensures Parliament cannot use its authority improperly to invade upon provinces’ areas of competence, thus ensuring the balance of federalism is respected. Here, the only issue concerns whether ss. 1 to 7 are supported by the third requirement, a valid criminal law purpose.

For the substantive criminal law purpose requirement to be met, the impugned legislation must be directed at an evil or injurious or undesirable effect upon the public. The concept of “evil” is necessary to remind Parliament that mere undesirable effects are not sufficient for legislation to have a criminal purpose. It remains conceptually useful for courts to search for an evil before the criminal law purpose requirement is satisfied. Three questions must be confronted when determining whether a law rests upon a valid criminal law purpose.

First, does the impugned legislation relate to a public purpose, such as public peace, order, security, health, or morality? Second, did Parliament articulate a well-defined threat to be suppressed or prevented by the impugned legislation (i.e. the evil or injurious or undesirable effect upon the public)? Third, is the threat “real”, in the sense that Parliament had a concrete basis and a reasoned apprehension of harm when enacting the impugned legislation? Regarding the first question, there is agreement that the contested provisions can be said to relate to a public purpose: health.

There is a clear dimension related to health in the dominant character of the legislation. The impugned provisions also have an impact onprivacy and autonomy, but the scope of the definition of “genetic test” in s. 2 means that health is the primary character of the law andthat privacy and autonomy are only derivatives thereof. Regarding the second question, Parliament must clearly articulate and define the scope of the threat it seeks to suppress, i.e.it must articulate a precise threat with ascertainable contours.

This requirement is particularly important in relation to matters that haveprovincial aspects, such as health, in order to preserve the balance of federal and provincial powers. It is not sufficient for the impugnedprovisions’ pith and substance to merely relate to health; it must also involve suppressing an evil or injurious or undesirable effect uponthe public. Here, there is no defined public health evil or threat to be suppressed.

The objective of the legislation is to foster or promotebeneficial health practices — it seeks to encourage Canadians to undergo genetic testing, which may then result in better healthoutcomes. This, in and of itself, will simply not suffice at this stage. The mere fact that genetic testing is a novel development does not,on its own, bring it within the purview of the criminal law. Moreover, a gap in provincial legislations across the country is not awell-defined threat that justifies recourse to the criminal law.

Regarding the third question, while Parliament undoubtedly has wide latitude to determine the nature and degree of harm towhich it wishes to respond, it cannot act where there is no adequate evidentiary foundation of harm. Had there been a well-defined threatto health in this case, there still would have been no evidentiary foundation of harm. Rather, Parliament seeks to improve the health ofCanadians by making them aware of underlying conditions they may have and does so by attempting to encourage the use of genetictests.

The contested provisions therefore do not satisfy the substantive component of criminal law. Cases Cited By Karakatsanis J. Applied: Reference re Validity of

Section 5(

a) of the Dairy Industry Act, (SCC), [1949] S.C.R. 1, aff’d (UK JCPC), [1951] A.C. 179; referred to: OPSEU v. Ontario (Attorney General), (SCC), [1987] 2 S.C.R.2; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146; Referencere Secession of Quebec, (SCC), [1998] 2 S.C.R. 217; Re Resolution to amend the Constitution, (SCC),[1981] 1 S.C.R. 753; Hodge v. The Queen (1883), 9 App. Cas. 117; Reference re pan-Canadian securities regulation, 2018 SCC 48,[2018] 3 S.C.R. 189; Canadian Western Bank v.

Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3; Canada (Attorney General) v. PHSCommunity Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC14, [2015] 1 S.C.R. 693; Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837; Saskatchewan (Attorney General) v. LemareLake Logging Ltd., 2015 SCC 53, [2015] 3 S.C.R. 419; Smith v. The Queen, (SCC), [1960] S.C.R. 776; Goodwin v.British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, [2015] 3 S.C.R. 250; Chatterjee v.

Ontario (Attorney General),2009 SCC 19, [2009] 1 S.C.R. 624; Multiple Access Ltd. v. McCutcheon, (SCC), [1982] 2 S.C.R. 161; Reference reFirearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783; General Motors of Canada Ltd. v. City National Leasing, (SCC), [1989] 1 S.C.R. 641; Reference re Assisted Human Reproduction Act, 2010 SCC 61, [2010] 3 S.C.R. 457; RJR-MacDonald Inc. v.Canada (Attorney General), (SCC), [1995] 3 S.C.R. 199; R. v. Morgentaler, (SCC), [1993] 3 S.C.R.463; Friends of the Oldman River Society v. Canada (Minister of Transport), (SCC), [1992] 1 S.C.R. 3; DesgagnésTransport Inc. v.

Wärtsilä Canada Inc., 2019 SCC 58, [2019] 4 S.C.R. 228; Re B.C. Motor Vehicle Act, (SCC), [1985] 2S.C.R. 486; Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135; R. v. Hydro-Québec, (SCC), [1997] 3 S.C.R. 213; R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571; Proprietary Articles TradeAssociation v. Attorney General for Canada, (UK JCPC), [1931] A.C. 310; Scowby v. Glendinning, (SCC), [1986] 2 S.C.R. 226; R. v. Wetmore, (SCC), [1983] 2 S.C.R. 284; Standard Sausage Co. v. Lee, (BC CA), [1933] 4 D.L.R. 501; R. v. Morgentaler, (SCC), [1988] 1 S.C.R. 30; R. v.

Jarvis, 2019 SCC 10, [2019] 1S.C.R. 488; R. v. Dyment, (SCC), [1988] 2 S.C.R. 417; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; R. v. Cole,2012 SCC 53, [2012] 3 S.C.R. 34; Labatt Breweries of Canada Ltd. v. Attorney General of Canada, (SCC), [1980] 1S.C.R. 914; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; Association des parents de l’école Rose-des-ventsv. British Columbia (Education), 2015 SCC 21, [2015] 2 S.C.R. 139. By Moldaver J. Applied: RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1995] 3 S.C.R. 199; referred to:Quebec (Attorney General) v.

Canada (Attorney General), 2015 SCC 14, [2015] 1 S.C.R. 693; Ward v. Canada (Attorney General),2002 SCC 17, [2002] 1 S.C.R. 569; Reference re Validity of

Section 5(

a) of the Dairy Industry Act, (SCC), [1949] S.C.R.1; RJR-MacDonald Inc. v. Canada (Attorney General) (1991), (QC CS), 82 D.L.R. (4th) 449; RJR-MacDonald Inc. v.Canada (Attorney General) (1993), (QC CA), 102 D.L.R. (4th) 289; Reference re Firearms Act (Can.), 2000 SCC 31,[2000] 1 S.C.R. 783. By Kasirer J. (dissenting) Reference re Validity of

Section 5(

a) of the Dairy Industry Act, (SCC), [1949] S.C.R. 1; Desgagnés TransportInc. v. Wärtsilä Canada Inc., 2019 SCC 58, [2019] 4 S.C.R. 228; Reference re Assisted Human Reproduction Act, 2010 SCC 61, [2010]3 S.C.R. 457; Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3; Canada (Attorney General) v. PHS CommunityServices Society, 2011 SCC 44, [2011] 3 S.C.R. 134; Reference re Environmental Management Act (British Columbia), 2019 BCCA 181,25 B.C.L.R. (6th) 1, aff’d 2020 SCC 1, [2020] 1 S.C.R. 3; R. v.

Morgentaler, (SCC), [1993] 3 S.C.R. 463; Reference reFirearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783; Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14,[2015] 1 S.C.R. 693; Global Securities Corp. v. British Columbia (Securities Commission), 2000 SCC 21, [2000] 1 S.C.R. 494; Ward v.Canada (Attorney General), 2002 SCC 17, [2002] 1 S.C.R. 569; Chatterjee v. Ontario (Attorney General), 2009 SCC 19, [2009] 1S.C.R. 624; R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342; Canadian Federation of Agriculture v. Attorney-General for Quebec, (UK JCPC), [1951] A.C. 179; R. v.

Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571; Schneider v. The Queen, (SCC), [1982] 2 S.C.R. 112; RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1995] 3 S.C.R.199; R. v. Wetmore, (SCC), [1983] 2 S.C.R. 284; R. v. Hydro-Québec, (SCC), [1997] 3 S.C.R. 213;

Labatt Breweries of Canada Ltd. v. Attorney General of Canada, (SCC), [1980] 1 S.C.R. 914; R. v. Hauser, (SCC), [1979] 1 S.C.R. 984; R. v. Butler, (SCC), [1992] 1 S.C.R. 452; Citizens Insurance Co. of Canada v.Parsons (1881), 7 App. Cas. 96; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331. Statutes and Regulations Cited

An Act to amend the Canadian Human Rights Act and the Criminal Code, S.C. 2017, c. 13. Bill S-201,

An Act to prohibit and prevent genetic discrimination, 1st Sess., 42nd Parl., 2017. Bill S-201,

An Act to prohibit and prevent genetic discrimination, 2nd Sess., 41st Parl., 2015. Bill S-218,

An Act to prohibit and prevent genetic discrimination, 1st Sess., 41st Parl., 2013, s. 6. Canada Labour Code, R.S.C. 1985, c. L-2, ss. 247.98, 247.99. Canadian Charter of Rights and Freedoms, s. 8. Canadian Human Rights Act, R.S.C. 1985, c. H-6, ss. 2, 3(1), (2), (3). Charter of Human Rights and Freedoms, CQLR, c. C-12, ss. 10, 12, 13, 20.1 para. 2. Civil Code of Québec, art. 2408. Constitution Act, 1867, ss. 91, 92. Constitution Act, 1982, s. 35. Court of Appeal Reference Act, CQLR, c. R-23, s. 1. Criminal Code, R.S.C. 1985, c. C-46, ss. 162(1), 184. Genetic Non-Discrimination Act, S.C. 2017, c. 3, ss. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11. Human Rights Code, R.S.O. 1990, c. H.19, s. 22.

Interpretation Act, R.S.C. 1985, c. I-21, s. 5(2). Authors Cited Boivin, Denis. Insurance Law, 2nd ed. Toronto: Irwin Law, 2015. Canada. House of Commons. House of Commons Debates, vol. 148, No. 47, 1st Sess., 42nd Parl., May 3, 2016, p. 2736. Canada. House of Commons. House of Commons Debates, vol. 148, No. 77, 1st Sess., 42nd Parl., September 20, 2016, pp. 4885-87,4889-90, 4892-94. Canada. House of Commons. House of Commons Debates, vol. 148, No. 97, 1st Sess., 42nd Parl., October 25, 2016, pp. 6125-28. Canada. House of Commons.

House of Commons Debates, vol. 148, No. 140, 1st Sess., 42nd Parl., February 14, 2017, p. 8955. Canada. House of Commons. Standing Committee on Justice and Human Rights. Evidence, No. 34, 1st Sess., 42nd Parl., November 15,2016, p. 2. Canada. House of Commons. Standing Committee on Justice and Human Rights. Evidence, No. 35, 1st Sess., 42nd Parl., November 17,2016, p. 13. Canada. House of Commons. Standing Committee on Justice and Human Rights. Evidence, No. 36, 1st Sess., 42nd Parl., November 22,2016, pp. 12-13. Canada. House of Commons. Standing Committee on Justice and Human Rights.

Evidence, No. 37, 1st Sess., 42nd Parl., November 24,2016, pp. 1-11. Canada. Office of the Privacy Commissioner of Canada. The Potential Economic Impact of a Ban on the Use of Genetic Information forLife and Health Insurance, by Michael Hoy and Maureen Durnin. Gatineau, 2012. Canada. Senate. Debates of the Senate, vol. 148, No. 154, 1st Sess., 41st Parl., April 23, 2013, pp. 3744-45. Canada. Senate. Debates of the Senate, vol. 149, No. 32, 2nd Sess., 41st Parl., February 5, 2014, p. 889. Canada. Senate. Debates of the Senate, vol. 149, No. 137, 2nd Sess., 41st Parl., May 5, 2015, pp. 3270-78, 3281. Canada.

Senate. Debates of the Senate, vol. 150, No. 8, 1st Sess., 42nd Parl., January 27, 2016, pp. 146-51. Canada. Senate. Debates of the Senate, vol. 150, No. 22, 1st Sess., 42nd Parl., March 22, 2016, p. 381.

Canada. Senate. Debates of the Senate , vol. 150, No. 26, 1st Sess., 42nd Parl., April 13, 2016, p. 459. Canada. Senate. Standing Senate Committee on Human Rights. Proceedings of the Standing Senate Committee on Human Rights , No. 2, 1st Sess., 42nd Parl., March 9, 2016, pp. 2:15, 2:28. Canada. Senate. Standing Senate Committee on Human Rights. Proceedings of the Standing Senate Committee on Human Rights , No. 11, 2nd Sess., 41st Parl., October 2, 2014, pp. 11:88-11:96. Canada. Senate. Standing Senate Committee on Human Rights.

Proceedings of the Standing Senate Committee on Human Rights , No. 15, 2nd Sess., 41st Parl., February 19, 2015, p. 15:49. Grand Robert de la langue française , 2 e éd. par Alain Rey, dir. Paris: Le Robert, 2001, “ diagnostic ”, “ pronostic ”. Hogg, Peter W. Constitutional Law of Canada , 5th ed. Supp. Scarborough, Ont.: Thomson/Carswell, 2007 (updated 2019, release 1). Lluelles, Didier. Droit des assurances terrestres , 6 e éd. Montréal: Thémis, 2017. Newman, Dwight. “Changing Division of Powers Doctrine and the Emergent Principle of Subsidiarity” (2011), 74 Sask. L.R. 21.

Ogbogu, Ubaka. “The Assisted Human Reproduction Act Reference and the Thin Line Between Health and Crime” (2013), 22 Constitutional Forum 93. Oxford English Dictionary , 2nd ed. Oxford: Clarendon Press, 1989, “diagnosis”, “prognosis”. Régimbald, Guy, and Dwight Newman. The Law of the Canadian Constitution , 2nd ed. Toronto: LexisNexis, 2017. Sullivan, Ruth. Statutory

Interpretation , 3rd ed. Toronto: Irwin Law, 2016. Sullivan, Ruth. Sullivan on the Construction of Statutes , 6th ed. Markham, Ont.: LexisNexis, 2014. Sylvestre, Marie-Eve. “Droit criminel, droit pénal et droits individuels”, dans JurisClasseur Québec — Collection droit public — Droit constitutionnel , par Stéphane Beaulac et Jean-François Gaudreault-Desbiens, dir. Montréal: LexisNexis, 2010, fascicule 14 (feuilles mobiles mises à jour novembre 2011, envoi n o 16).

APPEAL from a judgment of the Quebec Court of Appeal (Duval Hesler C.J. and Bich, Bélanger, Savard and Mainville JJ.A.), 2018 QCCA 2193 , 2019 CLLC ¶ 230-020, [2018] AZ-51556275, [2018] Q.J. No. 12399 (QL), 2018 CarswellQue 11522 (WL Can.) , in the matter of a reference concerning the constitutionality of the Genetic Non-Discrimination Act enacted by ss. 1 to 7 of the Act to prohibit and prevent genetic discrimination . Appeal allowed, Wagner C.J. and Brown, Rowe and Kasirer JJ. dissenting. Joseph J. Arvay , Q.C. , Bruce B. Ryder , Michael Sobkin and William Colish , for the appellant.

Alexander Pless and Liliane Bantourakis , for the respondent the Attorney General of Canada. Francis Demers and Samuel Chayer , for the respondent the Attorney General of Quebec. J. Gareth Morley and Zachary Froese , for the intervener the Attorney General of British Columbia. Dana J. Brûlé , for the intervener the Attorney General of Saskatchewan. Christopher Richter and Nick Kennedy , for the intervener the Canadian Life and Health Insurance Association. Fiona Keith and Daniel Poulin , for the intervener the Canadian Human Rights Commission.

Frank Addario and Samara Secter , for the intervener the Privacy Commissioner of Canada. Michael Bookman , for the intervener the Canadian College of Medical Geneticists. Douglas Mitchell , as amicus curiae , and Olga Redko and Léa Charbonneau . The reasons of Abella, Karakatsanis and Martin JJ. were delivered by [ 1 ] Karakatsanis J. — Parliament criminalized compulsory genetic testing and the non-voluntary use or disclosure of genetic test results in the context of a wide range of activities — activities that structure much of our participation in society.

This Court must decide whether Parliament could validly use its broad criminal law power to do so. [ 2 ] In particular, we must decide whether s. 91(27) of the Constitution Act, 1867 empowers Parliament to prohibit forcing an individual to take a genetic test or to disclose genetic test results, or to prohibit using an individual’s genetic test results without consent, by way of ss. 1 to 7 of the Genetic Non-Discrimination Act , S.C. 2017, c. 3 . Answering that question turns on whether Parliament enacted the challenged prohibitions for a valid criminal law purpose.

I find that it did. [ 3 ] The Government of Quebec referred the constitutionality of ss. 1 to 7 of the Act to the Quebec Court of Appeal, which concluded that those provisions fell outside Parliament’s authority to make criminal law. The appellant, the Canadian Coalition for Genetic Fairness, appeals to this Court as of right.

[ 4 ] I would allow the appeal and conclude that Parliament had the power to enact ss. 1 to 7 of the Genetic Non-Discrimination Act under s. 91(27). As I explain below, the “matter” (or pith and substance) of the challenged provisions is to protect individuals’ control over their detailed personal information disclosed by genetic tests, in the broad areas of contracting and the provision of goods and services, in order to address Canadians’ fears that their genetic test results will be used against them and to prevent discrimination based on that information.

This matter is properly classified within Parliament’s s. 91(27) power over criminal law. The provisions are supported by a criminal law purpose because they respond to a threat of harm to several overlapping public interests traditionally protected by the criminal law. The prohibitions in the Act protect autonomy, privacy, equality and public health, and therefore represent a valid exercise of Parliament’s criminal law power. I. Genetic Non-Discrimination Act [ 5 ] In December 2015, Senator James S. Cowan introduced Bill S-201,

An Act to prohibit and prevent genetic discrimination , 1st Sess., 42nd Parl., 2017, which would eventually become the Genetic Non-Discrimination Act , in the Senate. The Senate passed the bill by unanimous vote. The House of Commons passed it with 222 members of Parliament voting in favour and 60 against. Although the government opposed the bill, it did not require its backbenchers to vote against it. The bill came into force on royal assent as the Genetic Non-Discrimination Act : see

Interpretation Act , R.S.C. 1985, c. I-21, s. 5(2) . [ 6 ]

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 the following prohibitions relating to genetic tests: 3

(1) It is prohibited for any person to require an individual to undergo a genetic test as a condition of (

a) providing goods or services to that individual; (

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 with that individual.

(2) It is prohibited for any person to refuse to engage in an activity described in any of paragraphs (1)(

a) to (

c) in respect of an individual on the grounds that the individual has refused to undergo a genetic test. 4

(1) It is prohibited for any person to require an individual to disclose the results of a genetic test as a condition of engaging in an activity described in any of paragraphs 3(1) (

a) to (c).

(2) It is prohibited for any person to refuse to engage in an activity described in any of paragraphs 3(1) (

a) to (

c) in respect of an individual on the grounds that the individual has refused to disclose the results of a genetic test. 5 It is prohibited for any person who is engaged in an activity described in any of paragraphs 3(1) (

a) to (

c) in respect of an individual to collect, use or disclose the results of a genetic test of the individual without the individual’s written consent. [ 7 ] Thus, individuals and corporations cannot force individuals to take genetic tests or disclose genetic test results and cannot use individuals’ genetic test results without their written consent in the areas of contracting [1] and the provision of goods and services. [ 8 ]

Section 7 provides that doing anything prohibited by ss. 3, 4 or 5 is an offence punishable on

summary conviction by a fine of up to $300,000 or imprisonment of up to 12 months, or both, and on indictment by a fine of up to $1 million or imprisonment of up to 5 years, or both. [ 9 ]

Section 6 provides that the prohibitions established by ss. 3 to 5 do not apply to a physician, pharmacist or other health care practitioner “in respect of an individual to whom they are providing health services” and also do not apply to “a person who is conducting medical, pharmaceutical or scientific research in respect of an individual who is a participant in the research”. [ 10 ] Sections 8 , 9 and 10 of the Act amended the Canada Labour Code , R.S.C. 1985, c. L-2 , and the Canadian Human Rights Act , R.S.C. 1985, c.

H-6 . [2] None of those amendments is at issue in this appeal, but, as I explain below, they may help illuminate the purpose of ss. 1 to 7 of the Act . II. Quebec Court of Appeal’s Opinion, 2018 QCCA 2193 , 2019 CLLC ¶ 230-020 [ 11 ] The Government of Quebec referred the following question to the Quebec Court of Appeal under the Court of Appeal Reference Act , CQLR, c.

R-23, s. 1 : 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 ? [para. 1] [ 12 ] The Court of Appeal held that, in pith and substance, the Act aims to “encourage the use of genetic tests in order to improve the health of Canadians by supressing the fear of some that this information could eventually serve discriminatory purposes in the entering of agreements o[r] in the provision of goods and services, particularly insurance and employment contracts”: para. 11.

In the Court of Appeal’s view, despite its title, nothing in the challenged provisions of the Act prohibits or even addresses genetic

discrimination. The only mention of genetic discrimination is found in the amendments to the Canadian Human Rights Act. [13] With that characterization in mind, the Court of Appeal concluded that the provisions do not pursue a valid criminallaw purpose. In the Court of Appeal’s view, the prohibitions created by ss. 3, 4 and 5 of the Genetic Non-Discrimination Act govern thetype of information available for employment and insurance purposes, which is not a valid criminal law purpose.

Moreover, the Court ofAppeal reasoned that merely promoting health by encouraging more people to take genetic tests is not a criminal purpose because it doesnot attack a “real public health evil”, in contrast to legislation that concerns tobacco and illegal drugs, both of which “intrinsically presenta threat to public health”: para. 24. [14] Accordingly, the Court of Appeal answered the reference question in the affirmative, concluding that ss. 1 to 7 of theAct exceed Parliament’s authority over criminal law. III.

Issue [15] The only issue before this Court is whether Parliament had the power under s. 91(27) to enact ss. 1 to 7 of theGenetic Non-Discrimination Act. The wisdom of Parliament’s decision to criminalize the conduct the provisions prohibit is not in issue.Nor is it this Court’s task to consider whether the policy objectives advanced by the provisions could be better achieved by other means,such as provincial legislation.

My conclusion that ss. 1 to 7 of the Act are valid criminal law does not preclude the provincial legislaturesfrom addressing similar matters within their spheres of jurisdiction, subject to the doctrine of paramountcy. IV. Parties’ Positions [16] The appellant, the Canadian Coalition for Genetic Fairness, was an intervener before the Quebec Court of Appealand appeals as of right to this Court. It contends that the Act falls squarely within Parliament’s authority over the criminal law.

In theappellant’s view, the Act’s pith and substance is to protect and promote health by putting in place prohibitions that target compelledtesting or the non-voluntary use or disclosure of genetic test results, practices that have serious consequences for health, privacy andequality. The appellant argues that the provisions pursue multiple criminal law objectives. [17] The respondents, the Attorneys General of Canada and of Quebec, both take the position that the Act is beyondParliament’s authority.

The Attorney General of Canada argues that the pith and substance of ss. 1 to 7 of the Act is to regulate contractsand the provision of goods and services with the aim of promoting health.

The Attorney General of Quebec submits that, in pith andsubstance, the Act seeks to regulate the use of genetic information by insurance companies and employers under provincial jurisdiction.Accordingly, the Attorneys General submit that the challenged provisions in pith and substance relate primarily to matters properlyclassified as falling within the provinces’ jurisdiction over property and civil rights under s. 92(13) of the Constitution Act, 1867. [18] While the Court pays respectful attention to the submissions of attorneys general, they remain just that —submissions — even in the face of agreement between attorneys general.

This Court’s reference to agreement between federal andprovincial attorneys general in the past has been in the context where they agree that the legislation at issue is constitutional: see, forexample, OPSEU v. Ontario (Attorney General), (SCC), [1987] 2 S.C.R. 2, at pp. 19-20; Kitkatla Band v. BritishColumbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146, at paras. 72-73. More fundamentally,agreement of the attorneys general that legislation is unconstitutional is not, in itself, persuasive. Parliament enacted the challengedprovisions.

The sole issue before us is whether it had the power to do so. [19] Given the positions taken by the Attorneys General of Canada and Quebec, the Quebec Court of Appeal appointedDouglas Mitchell as amicus curiae to argue that the Act is within Parliament’s authority. Mr. Mitchell reprised his role before this Court.He submits that the provisions are, in pith and substance, directed at the protection of the physical and psychological security and thedignity of vulnerable persons, as well as the prevention of social outcomes that Parliament has deemed to be morally wrong.

The Actaims to further criminal law purposes and was validly enacted under s. 91(27). V. Analysis [20] The Constitution of Canada is fundamentally defined by its federal structure; the organizing principle of federalisminfuses and breathes life into it: Reference re Secession of Quebec, (SCC), [1998] 2 S.C.R. 217, at paras. 32 to 49.

ThisCourt has held that the principle of federalism runs through the political and legal systems of Canada, and that the division of powerseffected mainly by ss. 91 and 92 of the Constitution Act, 1867 is the “primary textual expression” of the federalism principle in theConstitution: Re Resolution to amend the Constitution, (SCC), [1981] 1 S.C.R. 753, at pp. 905-9; Secession Reference,at para. 47. [21] The division of powers assigns spheres of jurisdiction to a central Parliament and to the provincial legislatures,distributing the whole of legislative authority in Canada.

Within their respective spheres, the legislative authority of the Parliament andthe provincial legislatures is supreme (subject to the constraints established by the Constitution, including the Canadian Charter ofRights and Freedoms and s. 35 of the Constitution Act, 1982): Hodge v. The Queen (1883), 9 App. Cas. 117 (P.C.), at p. 132; Referencere Pan-Canadian Securities Regulation, 2018 SCC 48, [2018] 3 S.C.R. 189, at paras. 56-57. The principle of federalism and the divisionof powers are aimed at reconciling diversity with unity: Secession Reference, at para. 43.

They protect the autonomy of the provinces topursue their own unique goals within their spheres of jurisdiction, while allowing the federal government to pursue common goals withinits spheres. [22] This Court’s approach to the division of powers has evolved to embrace the possibility of intergovernmentalcooperation and overlap between valid exercises of provincial and federal authority.

In keeping with the movement of constitutional lawtowards a more flexible view of federalism that reflects the political and cultural realities of Canadian society, the fixed “watertightcompartments” approach has long since been overtaken and the doctrine of interjurisdictional immunity has been limited: see CanadianWestern Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, at paras. 23, 67 and 77; Canada (Attorney General) v. PHS CommunityServices Society, 2011 SCC 44, [2011] 3 S.C.R. 134, at paras. 60-66.

Indeed, the more flexible principle of “co-operative federalism”and the doctrines of double aspect and paramountcy have been developed in part to account for the increasing complexity of modern

society: Canadian Western Bank, at paras. 24, 30 and 37; Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14,[2015] 1 S.C.R. 693, at para. 17; Reference re Pan-Canadian Securities Regulation, at para. 18.

The modern view of federalism“accommodates overlapping jurisdiction and encourages intergovernmental cooperation”: Reference re Securities Act, 2011 SCC 66,[2011] 3 S.C.R. 837, at para. 57. [23] The courts’ preference for accommodating cooperation and overlap between provincial and federal legislation hasoften played a role in upholding the validity or constitutional operability of provincial legislation, particularly when the legislature hasacted in an area in which Parliament has also legislated or over which there is a federal aspect: see, for example, Saskatchewan (AttorneyGeneral) v.

Lemare Lake Logging Ltd., 2015 SCC 53, [2015] 3 S.C.R. 419; Smith v. The Queen, (SCC), [1960] S.C.R.776; Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, [2015] 3 S.C.R. 250; Chatterjee v. Ontario(Attorney General), 2009 SCC 19, [2009] 1 S.C.R. 624. This Court has described cooperative federalism as a principle used in part to“avoid unnecessary constraints on provincial legislative action”: Quebec (Attorney General) v.

Canada (Attorney General), at para. 17. [24] However, cooperative federalism and the increased tolerance for overlap captured by the double aspect andparamountcy doctrines have also been invoked to support federal legislation and interlocking federal and provincial legislative schemesin some circumstances: see, for example, Multiple Access Ltd. v.

McCutcheon, (SCC), [1982] 2 S.C.R. 161; Reference rePan-Canadian Securities Regulation, at para. 18. [25] This Court has also emphasized that the principle of cooperative federalism does not override or modify the scope ofthe legislative authority conferred by the Constitution: Quebec (Attorney General) v. Canada (Attorney General), at paras. 18-19.

Wherethe Constitution empowers one level of government to take unilateral action, cooperative federalism will not stand in its way: para. 20. [26] To determine whether a law falls within the authority of Parliament or a provincial legislature, a court must firstcharacterize the law and then, based on that characterization, classify the law by reference to the federal and provincial heads of powerunder the Constitution: Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783, at para. 15; Reference re Securities Act, atpara. 63; Reference re Pan-Canadian Securities Regulation, at para. 86. [27] Accordingly, I begin by characterizing the provisions of the Genetic Non-Discrimination Act, then proceed todetermine whether they are properly classified as coming within Parliament’s criminal law power.

A. Characterization [28] At the characterization stage, a court must identify the law’s “pith and substance”, or “caractère véritable”. Sincethe Constitution gives Parliament and the provincial legislatures the authority to “make Laws in relation” to certain “Matters”, the pithand substance analysis aims to “identif[y] the [law’s] ‘matter’”: Constitution Act, 1867, ss. 91 and 92; see also Canadian Western Bank,at para. 26.

As this Court recently described it in the Reference re Pan-Canadian Securities Regulation, at para. 86, the goal is todetermine the law’s “true subject matter”, even when it differs from its apparent or stated subject matter: Firearms Reference, atpara. 18. Generally, the court will first look to characterize the specific provisions that are challenged, rather than the legislative schemeas a whole, to determine whether they are validly enacted: General Motors of Canada Ltd. v.

City National Leasing, (SCC), [1989] 1 S.C.R. 641, at pp. 666-67. [29] This Court has articulated the concept of the law’s matter or pith and substance in a number of other ways, includingby describing it as the law’s “dominant purpose”, “leading feature or true character”, “dominant or most important characteristic”(Reference re Assisted Human Reproduction Act, 2010 SCC 61, [2010] 3 S.C.R. 457, at para. 184 (Reference re AHRA), citingRJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1995] 3 S.C.R. 199, at para. 29; R. v.

Morgentaler, (SCC), [1993] 3 S.C.R. 463 (Morgentaler (1993)), at p. 481; Friends of the Oldman River Society v. Canada (Minister ofTransport), (SCC), [1992] 1 S.C.R. 3, at p. 62), and the “essence of what the law does and how it does it”: Reference reAHRA, at para. 284, citing Chatterjee, at para. 16; see also Reference re AHRA, at paras. 20 and 23. [30] Identifying a law’s pith and substance requires considering both the law’s purpose and its effects: FirearmsReference, at para. 16.

Both Parliament’s or the provincial legislature’s purpose and the legal and practical effects of the law will assistthe court in determining the law’s essential character. [31] Characterizing a law can be a challenging exercise, especially when the challenged law has multiple features, and thecourt must determine which of those features is most important. Characterization plays a critical role in determining how a law can beclassified, and thus the law’s matter must be precisely defined: see Desgagnés Transport Inc. v.

Wärtsilä Canada Inc., 2019 SCC 58,[2019] 4 S.C.R. 228, at para. 35; see also Reference re AHRA, at paras. 190-91, per LeBel and Deschamps JJ. Identifying the pith andsubstance of the challenged law as precisely as possible encourages courts to take a close look at the evidence of the law’s purpose andeffects, and discourages characterization that is overly influenced by classification.

The focus is on the law itself and what it is reallyabout. [32] Identifying the law’s matter with precision also discourages courts from characterizing the law in question toobroadly, which may result in it being superficially related to both federal and provincial heads of power, or may exaggerate the extent towhich the law extends into the other level of government’s sphere of jurisdiction: Desgagnés Transport, at para. 35; Reference re AHRA,at para. 190. Precisely defining the impugned law’s matter therefore facilitates classification. But precision should not be confused withnarrowness.

Pith and substance should capture the law’s essential character in terms that are as precise as the law will allow. [33] I now turn to characterizing ss. 1 to 7 of the Act, considering first the provisions’ purpose before turning to theireffects.

(1) Purpose [34] To determine a law’s purpose, a court looks to both intrinsic and extrinsic evidence. Intrinsic evidence includes thetext of the law, and provisions that expressly set out the law’s purpose, as well as the law’s title and structure. Extrinsic evidence

includes statements made during parliamentary proceedings and drawn from government publications: Firearms Reference, at para. 17. [35] A law’s title, especially its

long title, is an important form of intrinsic evidence, as both titles are an integral part ofthe law: R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at pp. 440-41. Here, both the

short title — the GeneticNon-Discrimination Act — and the

long title —

An Act to prohibit and prevent genetic discrimination — suggest that the Act’s purposeis twofold. They suggest that the Act seeks to prohibit discrimination on genetic grounds and prevent such discrimination from occurringin the first place. [36] Turning to the Act’s text and structure, the prohibitions created by ss. 3 to 5 apply to a wide range of circumstances(obtaining goods and services and entering into contracts) in which individuals might be treated adversely based on their decisionwhether to undergo genetic testing and based on test results.

The prohibitions are of general application, as they do not target a particularactivity or industry. Instead, they target specific behaviour related to genetic testing, namely forcing individuals to undergo testing anddisclose test results, and using test results without consent. The prohibitions target conduct that enables genetic discrimination. [37] The definition of “genetic test” in s. 2 of the Act is broad and captures analyses of DNA, RNA or chromosomesperformed with a wide range of ends in mind.

Section 2 defines a genetic test as “a test that analyzes DNA, RNA or chromosomes forpurposes such as the prediction of disease or vertical transmission risks, or monitoring, diagnosis or prognosis.” [38] This definition identifies a test that conducts analysis of genetic material and provides examples of the types ofpurposes for which such analysis may be undertaken.

Each example speaks to “disease”: its “prediction”, “diagnosis”, “prognosis” and “monitoring” and the “prediction” of the “risk” of its “vertical transmission” from a gestational parent to a child.[3] On their face, thesewords appear to be illustrative examples. But, when read in context, they serve to delineate the scope of the definition. After all, analysisis always conducted for a purpose, so Parliament’s choice to refer to analysis for certain types of purposes must be given meaning.

Theuse of these medical terms relating to disease in association with one another indicates that the purpose for which the analysis isundertaken must be health-related. Since a genetic test is defined as an analysis of genetic material for a health-related purpose, I think itfair to say that the definition speaks to a health-related genetic test.

Indeed, Parliament’s particular concern for protecting individuals’control over the results of health-related genetic tests pervades the debates, as I explain below. [39] Reading the definition this way would support — not detract from — the conclusion that the Act aims to combatdiscrimination based on genetic test results. Health-related genetic tests reveal highly personal information — details that individualsmight not wish to know or share and that could be used against them.

The prohibitions target a broad range of conduct that creates theopportunity for genetic discrimination based on intimate personal information revealed by health-related tests. Parliament saw genetictest results relating to health as particularly vulnerable to abuse and discrimination.

The intrinsic evidence suggests that the purpose ofthe provisions is 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 (the areas of contracting and theprovision of goods and services). The extrinsic evidence points largely in the same direction. [40] The main source of extrinsic evidence of purpose is the parliamentary debates on the bill that became the GeneticNon-Discrimination Act.

I would note that this Court has historically urged caution in relying too heavily on statements made in thecourse of parliamentary debates: Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, at pp. 508-9; Morgentaler(1993), at p. 484; Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135, at para. 47.

Aswell, because the bill was introduced as a Senate public bill, the Court does not have the benefit of statements made by or on behalf ofthe minister sponsoring the bill. [41] With that caution in mind, I proceed to examining statements suggestive of purpose made in the course ofparliamentary debate as additional evidence of purpose.

Senator Cowan, the bill’s sponsor, described the mischief the Act aims toaddress, along with the negative effects that genetic discrimination and the fear of genetic discrimination were having on the public: The problem, colleagues, is that the law in Canada has not kept pace with the science.

In particular, in Canada, unlike in most otherWestern nations, if one has genetic testing and discovers that one carries a gene associated with a particular condition or disease, there isno law at either the federal or provincial level that provides protection against what is called “genetic discrimination.” That is theproblem that Bill S-201 is designed to address. Right now in Canada, a third party such as an insurance company, an employer or someone else can demand access to your genetic testresults and then use that information against you.

There is no law in place to protect against that. . . . . . . the ripple effect of these instances of actual discrimination[4] is very significant. Fear of genetic discrimination is causing manyCanadians, far too many Canadians, to choose not to have genetic testing that their doctors believe would help them. . . . The decision whether or not to take a genetic test is a deeply personal one. There are many factors that a person weighs in making thedecision. There are some illnesses for which, at present, there is no treatment or cure.

One, understandably, may prefer not to know . . . .There are many very serious issues to be considered. But, colleagues, genetic discrimination should not be such an issue. That kind ofworry should simply not enter into the discussion. [Emphasis added; footnote added.] (Debates of the Senate, vol. 150, No. 8, 1st Sess., 42nd Parl., January 27, 2016, at pp. 147-48 and 150) [42] Robert Oliphant, Member of Parliament, the bill’s sponsor in the House of Commons, shared many of SenatorCowan’s concerns:

In Canada, unlike most western countries, if one has a genetic test, there is no protection from a third party using that information, those test results, perhaps to one’s detriment. This is the problem of genetic discrimination and that is what Bill S-201 seeks to address. . . . [Bill S-201] states clearly and unequivocally that society condemns genetic discrimination.

It is unacceptable behaviour, and it will not be tolerated. [Emphasis added.] ( House of Commons Debates , vol. 148, No. 77, 1st Sess., 42nd Parl., September 20, 2016, at pp. 4886-87) [ 43 ] The concerns raised by senators and members of Parliament in debate found support in the testimony given before Senate and House of Commons committees.

Some of the experts who appeared spoke to situations in which Canadians have been discriminated against on genetic grounds and explained that Canadians fear that their genetic test results might come to be used against them. [5] The experts explained that fear of genetic discrimination has led many Canadians to forego testing that might help them improve their health and contribute to improving public health. [ 44 ] For its part, the Court of Appeal relied on the parliamentary debates to conclude that ss. 1 to 7 of the Act do not have the purpose of prohibiting genetic discrimination, but instead aim to improve health.

The Court of Appeal concluded that even though the provisions make access to and use of the information obtained through genetic testing more difficult, they do not prohibit genetic discrimination itself. This is so despite the title of the Act , and in contrast to the amendments to the Canadian Human Rights Act . [ 45 ] In my view, the Court of Appeal privileged statements made by parliamentarians in the course of debates about the positive effect they hoped the prohibitions would eventually have over statements about the immediate mischief that the law is intended to address.

The mischief in parliamentarians’ minds was the “gap” in the laws, which left individuals vulnerable to genetic discrimination and grounded the fear of genetic discrimination.

Those concerns correspond to the title of the Act and the text of the prohibitions. [ 46 ] In addition to enacting substantive provisions, the Act also amended the Canada Labour Code to protect employees from forced genetic testing or disclosure of test results, and from disciplinary action on the basis of genetic test results, and amended the Canadian Human Rights Act to add “genetic characteristics” as a prohibited ground of discrimination and to create a deeming provision relating to refusal to undergo genetic testing or disclose test results: see Canada Labour Code , ss. 247.98 and 247.99 , as amended by s. 8 of the Act ; Canadian Human Rights Act , s. 3(1) and (3) , as amended by ss. 9 to 11 of the Act . [ 47 ] Parliament’s decision to make these amendments to the Canada Labour Code and the Canadian Human Rights Act in conjunction with its enactment of the Act ’s substantive provisions suggests that Parliament was looking to take a coordinated approach to tackling genetic discrimination based on test results, using different tools.

It was not only targeting genetic discrimination directly through human rights and labour legislation, but was also targeting precursors to such discrimination, namely forced genetic testing and disclosure of the results of such testing. The fact that Parliament did not criminalize genetic discrimination does not belie Parliament’s purpose of combatting genetic discrimination in this context.

The relative breadth, directness or efficacy of the means Parliament chooses to address a problem is not the court’s concern in its pith and substance inquiry. [ 48 ] I would reject any suggestion that Parliament’s purpose in enacting the challenged provisions was to change all employment and human rights law, rather than just that properly within its jurisdiction. Parliament appears to have chosen a multi-pronged approach to combatting genetic discrimination.

That two of those prongs are federal labour and human rights legislation does not suggest that its objective in enacting prohibitions supported by penalties as a third prong is to circumvent constitutional constraints.

The challenged provisions take a different and broader approach to tackling the problem presented by this form of genetic discrimination. [ 49 ] The title of the Act and the text of the prohibitions provide strong evidence that the prohibitions have the purpose of combatting genetic discrimination based on test results, and that the more precise mischief they are intended to address is the lack of legal protection for the results of genetic testing. The Act does what its title says it does: it prevents genetic discrimination by directly targeting that mischief.

The parliamentary debates also provide strong evidence to support this. I find that the purpose of the challenged provisions is to combat genetic discrimination and the fear of genetic discrimination based on the results of genetic tests by prohibiting conduct that makes individuals vulnerable to genetic discrimination in the areas of contracting and the provision of goods and services. [ 50 ] As I will explain, the effects of ss. 1 to 7 of the Act are consistent with their purpose.

(2) Effects [ 51 ] Both legal and practical effects are relevant to identifying a law’s pith and substance. Legal effects “flo[w] directly from the provisions of the statute itself”, whereas practical effects “flow from the application of the statute [but] are not direct effects of the provisions of the statute itself”: Kitkatla , at para. 54, citing Morgentaler (1993), at pp. 482-83. [ 52 ] Starting with legal effects, ss. 3 to 5 of the Genetic Non-Discrimination Act prohibit genetic testing requirements and non-consensual uses of genetic test results in a broad range of circumstances.

Section 7 imposes significant penalties for contravening these prohibitions. [ 53 ] These prohibitions and penalties will likely affect the operation of provincial and territorial legislation that requires the disclosure of genetic test results. The Genetic Non-Discrimination Act provisions would be paramount over provincial provisions to the extent of any conflict in operation: Lemare Lake Logging , at para. 18.

For instance, provincial legislation that requires an individual seeking health or life insurance to disclose all material health information could not operate so as to require the individual to disclose genetic test results: see, for example, art. 2408 of the Civil Code of Québec . [ 54 ] The most significant practical effect of the Act is that it gives individuals control over the decision of whether to undergo genetic testing and over access to the results of any genetic testing they choose to undergo. The Act does so by preventing

genetic testing requirements from being imposed on individuals as a condition of access to goods, services and contracts, and by preventing individuals’ genetic test results from being used non-consensually when they seek to obtain goods and services and enter into contracts. Even if an individual voluntarily discloses the results of a genetic test in such circumstances, the Act prevents the recipient of the information from using the information in any manner that has not been consented to in writing or from further disclosing the information.

The activities to which the Act applies are broad and fundamentally structure Canadians’ interactions with the world around them. The control that ss. 1 to 7 of the Act gives to individuals over genetic testing and genetic test results is equally significant and broad in scope. [ 55 ] Choices about genetic testing are deeply personal in nature and the reasons for making them vary widely from one individual to another. Just as one individual may wish to be aware of every possible predisposition or risk that a genetic test might reveal, another may prefer not to know.

And the individual who wants to know may not want others to know. The Act protects those choices. [ 56 ] By protecting choices about who has access to such information, the legislation reduces the risk of genetic discrimination. And by removing the fear of some of the negative consequences that could flow from genetic testing, the Act may encourage individuals to undergo genetic testing.

Additional testing may in turn produce health benefits, including by enabling earlier detection of health problems or predispositions, providing for more accurate and sometimes life-saving diagnoses and improving the health care system’s ability to provide maximally beneficial care. [6] [ 57 ] The legislation may also affect the insurance industry and, potentially, insurance premiums. By preventing insurers from using genetic test results without an individual’s consent in making decisions about what policies to underwrite, the provisions at issue may result in increased insurance premiums.

Since insurers will not be able to adjust individual premiums (or decline to insure an individual) based on genetic test results without written consent, they may be more likely to insure individuals who may be at risk of future health problems, or to insure those individuals at lower premiums than they would otherwise charge. Individuals who know they are at higher risk of future health problems may also be more likely to purchase insurance. This may in turn increase the amounts the insurer will be required to pay out.

To make sure that they will be able to meet those potential increased future liabilities, insurers may need to raise premiums overall. [ 58 ] The Attorneys General and several interveners opposed to the law’s constitutionality emphasize the Act ’s potential impact on the insurance industry as indicative of pith and substance. They also point to parts of the parliamentary debates and a previous version of the bill, which exempted insurance providers from the prohibitions in respect of high-value insurance policies: see Bill S-218,

An Act to prohibit and prevent genetic discrimination , 1st Sess., 41st Parl., 2013, s. 6 (not passed). They argue that the previously proposed ex

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