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DIVISION OF POWERS - Federal jurisdiction - Criminal law

Friday, July 10, 2020 @ 1:47 PM  


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Appeal by the Canadian Coalition for Genetic Fairness (Coalition) from a judgment of the Quebec Court of Appeal that found ss. 1 to 7 of the Genetic Non-Discrimination Act were ultra vires the jurisdiction of Parliament to enact criminal law pursuant to s. 91(27) of the Constitution Act, 1867. The challenged provisions criminalized compulsory genetic testing and the non-voluntary use or disclosure of genetic test results in the context of a wide range of activities including obtaining goods and services and entering into contracts. The Government of Quebec had referred the constitutionality of ss.1 to 7 of the Act to the Quebec Court of Appeal. The Court of Appeal held that, in pith and substance, the Act aimed to “encourage the use of genetic tests in order to improve the health of Canadians”. In the Court of Appeal’s view, nothing in the challenged provisions of the Act prohibited or even addressed genetic discrimination, and thus the Act did not pursue a valid criminal law purpose. The Coalition appealed.

HELD: Appeal allowed. Parliament had the power to enact the challenged provisions under s. 91(27) of the Constitution Act. Parliament’s purpose was reflected clearly by the title and text of the Act. The pith and substance of the challenged provisions was to protect individuals’ control over their detailed personal information disclosed by genetic tests, in the broad area of contracting and the provision of goods and services, in order to address Canadians’ fears that their genetic test results would be used against them, and to prevent discrimination based on that information. The provisions combated discrimination based on genetic test results by criminalizing compulsory genetic testing, compulsory disclosure of test results, and non-consensual use of test results in a broadly-defined context. The provisions were supported by a criminal law purpose because they responded to a threat of harm to several overlapping public interests traditionally protected by the criminal law. The prohibitions and penalties in the Act protected autonomy, privacy, equality, and public health, and represented a valid exercise of Parliament’s criminal law power. Concurring and dissenting reasons were provided.

Reference re Genetic Non-Discrimination Act, [2020] S.C.J. No. 17, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, S. Côté, R. Brown, M. Rowe, S.L. Martin and N. Kasirer JJ. July 10, 2020. Digest No. TLD-July62020011-SCC