R v. ATTORNEY GENERAL OF CANADA, 2018 QCCA 2193

Dans l'affaire du: Renvoi relatif à la

Loi sur la non-discrimination génétique édictée par les articles 1 à 7 de la Loi visant à interdire et à prévenir la discrimination génétique 2018 QCCA 2193 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026870-170 In the matter of the: Reference of the Government of Quebec concerning the constitutionality of the Genetic Non-Discrimination Act enacted by Sections 1 to 7 of the Act to prohibit and prevent genetic discrimination ( S.C. 2017, c. 3 ) Order in Council No: 522-2017 DATE: December 21, 2018 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. MARIE-FRANCE BICH, J.A.

DOMINIQUE BÉLANGER, J.A. MANON SAVARD, J.A. ROBERT M. MAINVILLE, J.A. ATTORNEY GENERAL OF QUEBEC APPLICANT / INTERVENER v.

ATTORNEY GENERAL OF CANADA APPLICANT / INTERVENER and ATTORNEY GENERAL OF BRITISH COLUMBIA CANADIAN COALITION FOR GENETIC FAIRNESS CANADIAN LIFE AND HEALTH INSURANCE ASSOCIATION CANADIAN HUMAN RIGHTS COMMISSION INTERVENERS and DOUGLAS MITCHELL AMICUS CURIAE REPORT OF THE COURT OF APPEAL* [ 1 ] In conformity with the Court of Appeal Reference Act , [1] the Government of Québec referred to this Court for hearing and consideration the following question : 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 ? [ 2 ] Does the Act to prohibit and prevent genetic discrimination (the “Act”) constitute a valid exercise of Parliament’s jurisdiction over criminal law?

To resolve a division of powers issue such as this one, the Supreme Court teaches that the pith and substance of the impugned legislation, i.e. “the ‘matter’ to which it essentially relates” [2] or its d ominant matter, [3] must first be identified in order to then verify whether it is related to an area of jurisdiction of the legislative authority that enacted it, [4] in this instance paragraph 91(27)

of the Constitution Act, 1867 , invoked by Parliament as the relevant head of power. [5] [ 3 ] The Act criminalizes the act of requiring a genetic test, as well as disclosing or using the results thereof in certain contexts (sections 1 to 7); it modifies the Canada Labour Code to afford the employee working for a federal undertaking the right to refuse to undergo a genetic test or to disclose the results thereof (section 8); it modifies the Canadian Human Rights Act by adding genetic characteristics as a prohibited ground of discrimination ( sections 9 to 11 ). [ 4 ] The issue before us in this reference is that of the constitutional validity of sections 1 to 7 of the Act .

These provisions prohibit the following: 1- requiring an individual to undergo a genetic test as a condition of providing goods or services or of entering into or maintaining a contract or any of its terms (sec. 3); 2- requiring an individual to disclose the results of such a test as a condition of engaging in one of these activities or refusing to engage in these activities because of the refusal to disclose these results (sec. 4); and 3- for any person engaged in these activities in regard to an individual, to collect, use or disclose the results of a genetic test of the individual without that individuals written consent (sec. 5). [ 5 ]

Section 6 exempts health care practitioners and researchers from the application of sections 3 to 5 of the Act . [ 6 ] Under

section 2 of the Act , a genetic test means 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. [ 7 ] Pursuant to

section 7, any contravention of these prohibitions constitutes an offence and can result in a fine not exceeding one million dollars and in imprisonment for a term not exceeding five years on conviction on indictment, or in a fine not exceeding three hundred thousand dollars and in imprisonment for a term not exceeding twelve months on

summary conviction. [ 8 ] The analysis of the language of the Act and of the parliamentary debates surrounding its adoption clearly establishes that the pith and substance of sections 1 to 7 is to prohibit the use of genetic tests or of their results in order to allow Canadians to access these tests without their results being used without their consent when they enter into agreements with third parties or when they seek the provision of goods and services. The record also reveals that the effect of these provisions impact especially insurance contracts and, to a lesser extent, employment contracts.

The parliamentary debates reveal that it was indeed these types of contracts (insurance and employment) that were at the heart of the concerns of parliamentarians. [ 9 ] If follows from the whole of the record that sections 1 to 7 of the Act aim to protect and to promote health by fostering the access by Canadians to genetic tests for medical purposes.

The Act therefore mainly seeks to prevent that Canadians refrain from undergoing genetic tests for medical purposes for fear that the results be used without their consent in the context of a contract or of a service, notably for purposes of an insurance or an employment. That is the main issue that it intends to redress. As explained by Robert Oliphant, the member who steered the bill through the House of Commons: The protections in the bill would enable Canadians to access medical advances in genetic testing without the fear of negative consequences or repercussions on them and their families.

It would empower Canadians to have better health. (…) The bill would wake people up, cause them to take control of their own health care, and actually move us, as a society, to a more sustainable health care system. It is targeted medicine, so that people would get the right tests, at the right time, the right treatments, and the right options. [6] [ 10 ] Despite the title of the Act , the pith and substance of its sections 1 to 7 is not to prohibit genetic discrimination. In fact, contrary to

section 9 to 11 of the Act , which amend the Canadian Human Rights Act to incorporate genetic characteristics as a prohibited ground of discrimination within the purview of matters falling under the legislative authority of Parliament, sections 1 to 7 do not pertain to genetic discrimination and do not prohibit it. These provisions rather aim at prohibiting the access to information obtained through genetic testing, without forbidding the use of genetic information that may be disclosed voluntary or that may be required or obtained through other means, such as family history or medical tests of another nature.

Nor do these sections prohibit genetic discrimination that could result from the use of such information. On the whole, however, they render more difficult access to and use of such information. [ 11 ] In reality, the objective is 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 of in the provision of goods and services, particularly insurance and employment contracts.

The sponsor of the bill, Senator Cowan, explained this during debates in the Senate: The reason why I introduced my bill is quite simple: It is to bring our law up to date, as has already been done in many other Western nations, so that Canadians can take advantage of the extraordinary advances in medical science that are now possible thanks to genetic testing, without fear that if they do so they will be opening themselves up to discrimination.

Unfortunately, today, too many Canadians are reluctantly choosing not to have genetic testing that their doctors believe would help their health care, and they're making that choice not because of concerns about the genetic testing, but because of fear of them being subjected to genetic discrimination. [7] [ 12 ] Is this a criminal law object? As Justice Rand explains in the Reference re Validity of

Section 5 (

a) Dairy Industry Act , [8] in terms substantially taken up in subsequent Supreme Court decisions: (…) A crime is

an act which the law, with appropriate penal sanctions, forbids; but as prohibitions are not enacted in a vacuum, we can properly look for some evil or injurious or undesirable effect upon the public against which the law is directed. That effect may be in relation to social, economic or political interests; and the legislature has had in mind to suppress the evil or to safeguard the interest threatened.

In examining the question, we are to consider not only the matters and conditions upon which the legislation will operate but as well its consequences; and in addition to what will be judicially noticed, evidence may be presented in a case which calls for it; (…). The Court in its enquiry is not bound by the ex facie form of the statute; and in the ordinary sense of the word, the purpose of a legislative enactment is generally evidential of its true nature or subject matter: (…).

Under a unitary legislature, all prohibitions may be viewed indifferently as of criminal law; but as the cases cited demonstrate, such a classification is inappropriate to the distribution of legislative power in Canada. [9] [ 13 ] It must be emphasized that Parliament adopted sections 1 to 7 of the Act against the advice of the Minister of Justice of Canada and notwithstanding the opinion of her department concluding that the provisions were unconstitutional and that they did not fall under the federal jurisdiction as circumscribed by the Constitution Act, 1867 , its paragraph 91(27) included, but rather related to the regulation of contracts and the provision of goods and services (an area of provincial jurisdiction under paragraphs 92(13) and (16) of that constitutional act). [ 14 ] It is moreover the first time that federal jurisdiction over criminal law is raised to prohibit the use of information in the conclusion of contracts or in the provision of goods and services within provincial jurisdiction on the ground of fear that this information could be used for potentially discriminatory purposes. [ 15 ] To this day under Canadian constitutional law, each level of government has been entrusted with the authority to protect and to promote the right to equality in its sphere of jurisdiction. [ 16 ] In employment matters, both the federal and the provincial governments have always favoured a nuanced approach to prohibit and prevent discrimination.

Thus, differences in treatment based on certain prohibited grounds are deemed discriminatory, unless the distinction is based on a bona fide occupational requirement or is otherwise allowed by legislation. [10] This legislative approach is grounded in the very notion of what constitutes prohibited discrimination in employment, i.e. the differential treatment of an individual from another based on an arbitrary standard. When the treatment of an individual is not arbitrary, there is no discrimination.

As Justice Abella wrote in Withler , equality is not about sameness and does not protect a right to identical treatment in every circumstance. [11] It all depends on the context. [ 17 ] As regards insurance, it has always been recognized that the contract is based on risk assessment.

To this end, policyholders and those insured have generally been required to disclose information – including medical information – likely to materially influence an insurer in appraising the risk, deciding to cover it and setting the premium. [12] Thus, the law generally authorizes insurers to take into account the health condition as well as risk factors related to the habits and lifestyle of the insured.

It also authorises them to consider certain factors inherent to the insured, such as age and gender, to the extent that these factors can truly serve to appraise the insured risk in accordance with recognized actuarial methods. [13] The identification of risk assessment factors, as well as the identification of types of information that an insurer may request for this purpose, have always been deemed as falling under exclusive provincial jurisdiction. [ 18 ] This context must inform the determination of whether or not to prohibit requiring a person to undergo or to disclose results of a genetic test as a prerequisite to the provision of goods and services or to entering into a contract, notably insurance and employment contacts, for the purposes of promoting the health of Canadians, constitutes a valid exercise of the federal jurisdiction over criminal law. [ 19 ] In the Reference re Assisted Human Reproduction Act , the Supreme Court was divided regarding the scope of Parliament’s jurisdiction over criminal law and the approach to adopt in this respect.

In any event, the Act does not satisfy the conditions of either of the approaches discussed in that case. Regardless of the approach adopted, neither the prohibitions set out in sections 3 to 5, nor the promotion of access to beneficial health care constitute valid criminal law objects. [14] [ 20 ] Indeed, as aforementioned, sections 1 to 7 of the Act do not prohibit genetic discrimination.

In fact, the prohibition of discrimination based on genetic characteristics appears only in sections 9 and 10 of the Act , which modify sections 2 and 3 of the Canadian Human Rights Act to include genetic characteristics as a prohibited ground of discrimination within the purview of matters falling under the legislative authority of Parliament. On the other hand, sections 1 to 7 of the Act prohibit requiring a genetic test or the disclosure or use of the results in the conclusion of a contract or in the provision of goods and services, except where consent is given.

Section 8 of the Act amends the Canada Labour Code in the same manner, while providing the employee with a specific recourse in the case where he or she is sanctioned for refusing to undergo a genetic test at the request of the employer or for refusing to disclose the results of such a test or because of the results of the test. [15] It does not however prohibit discrimination on the basis of genetic characteristics, which is left to be dealt with under the Canadian Human Rights Act . [ 21 ] One cannot discern in sections 1 to 7 of the Act the “evil” within the meaning of criminal law that Parliament seeks to ban here, if not in the perspective of fostering or promoting health, which cannot constitute a primary criminal law object.

First, the identification of factors that insurers may use to appraise the risk that they cover under insurance contracts and the types of information that they can require for this purpose have never been the object of a criminal prohibition.

Second, nothing in the record suggests that the identification of such factors or of the information useful for insurance purposes, including genetic test results, constitute objects of criminal law, whether it be from a moral standpoint or pursuant to any other traditional purpose of criminal law (health, security, public order, etc.). [ 22 ] Likewise, 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, including the reasonable accommodations required of employers, constitute a criminal law object. [ 23 ] It is true that sections 1 to 7 of the Act also extend to agreements other than insurance and employment contracts or to the provision of goods or services, but the record does not contain any indication that the use of genetic tests or of the results of these tests is truly an issue in any other sector (except, perhaps, in matters not contemplated by these provisions, such as family or social relationships). [ 24 ] There is no “real public health evil” here that would justify the recourse to subsection 91(27) of the Constitution Act, 1867 .

The criminal law object advanced to justify the Act is to provide higher quality health care through the promotion of access to genetic tests by

supressing the fear that the results of these tests be used for insurance of employment purposes. This is clearly not a criminal law object. The situation is completely distinguishable from the exercise of federal jurisdiction over criminal law regarding tobacco [16] or illicit drugs, [17] which intrinsically present a threat to public health. That is not the case for genetic tests. [ 25 ] The idea is not to evacuate the issues which may arise from the use of genetic tests or discrimination based on genetic characteristics.

Rather, it is a matter of determining which level of government, within the Canadian constitutional order, holds the power to legislate on the subject. In the absence of a criminal law object, these issues must be addressed by Parliament and the provincial legislatures within the ambit of their respective areas of jurisdiction.

At the very least, in the absence of such an object, we must conclude that sections 1 to 7 do not constitute a valid exercise of the federal jurisdiction over criminal law. [ 26 ] It is important to maintain a just and workable balance between the federal and provincial heads of power. [18] A federal state depends for its very existence on this balance between the central and provincial levels of government. [19] This is why courts, sensitive as they are to the necessity of preserving this balance to insure Canada’s future, have not been reluctant to invalidate federal legislative provisions inconsistent with the requirements of subsection 91(27) of the Constitution Act, 1867 .

In short, Parliament’s jurisdiction over criminal law cannot be exercised when the object of the legislation does not truly fit within the framework of criminal law. That is clearly the case in this instance. [ 27 ] In conclusion, the Court answers the reference question affirmatively. Nicole Duval Hesler (

s) NICOLE DUVAL HESLER, C.J.Q. Marie-France Bich (

s) MARIE-FRANCE BICH, J.A. Dominique Bélanger (

s) DOMINIQUE BÉLANGER, J.A. Manon Savard (

s) MANON SAVARD, J.A. Robert M. Mainville (

s) ROBERT M. MAINVILLE, J.A. Mtre Francis Demers BERNARD ROY (JUSTICE-QUÉBEC) For Attorney General of Quebec Mtre Alexander Pless Mtre Andréane Joanette-Laflamme DEPARTMENT OF JUSTICE – CANADA For Attorney General of Canada Mtre Christopher Richter Mtre Marie-Ève Gingras Mtre Yael Bienenstock Mtre Nick Kennedy TORYS LAW FIRM For Canadian Life and Health Insurance Association Mtre Daniel Poulin Mtre Fiona Keith CANADIAN HUMAN RIGHTS COMMISSION For Canadian Human Rights Commission Mtre Bruce B. Ryder OSGOOD HALL LAW SCHOOL, YORK UNIVERSITY Mtre William Colish KUGLER KANDESTIN For Canadian Coalition for Genetic Fairness Mtre Douglas Mitchell Mtre Olga Redko IMK Amicus Curiae

Dates of hearing: December 11 and 12, 2018