Reference re Genetic Non‑Discrimination Act2020 SCC 17 (38478)

” 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.”

The SCC (5:4, with separate majority concurring reasons) allowed the appeal and answered the reference question in the negative.

Justice Karakatsanis wrote as follows (at paras. 1-4, 76-79, 82-83, 96,103-108):

“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.

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.

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.

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 would highlight that Parliament is not, and has never been, restricted to responding to a so‑called “evil” or “real evil” when relying on its criminal law power. Rand J. did not require the presence of an evil or of evil effects in the Margarine Reference. He also referred to “injurious” or “undesirable” effects: p. 49. The notion of “evil” cannot serve to effectively limit Parliament to using the criminal law power to respond to moral threats. That would sweep away the other firmly established public interests protected by the criminal law and stymie the criminal law’s evolution. The criminal law is not confined to prohibiting immoral conduct: Firearms Reference, at para. 55.

In Reference re AHRA, McLachlin C.J. said that she would not have courts rely on their view of what is good and bad to question “the wisdom of Parliament” in enacting criminal law: para. 76. By contrast, LeBel and Deschamps JJ. would appear to have courts ask whether the targeted activity is bad enough that it needs to be suppressed, and assess whether Parliament has identified and established conduct or facts that support the apprehended harm to which it has responded: paras. 236 and 251. Because Cromwell J. did not adopt either McLachlin C.J.’s or LeBel and Deschamps JJ.’s approach to assessing criminal law purpose in Reference re AHRA, neither approach won the support of a majority of the Court.

I agree with McLachlin C.J.’s deferential posture. As she rightly noted, because the issue in a division of powers analysis is not whether the law infringes the Charter, “the language of justification has no place”: para. 45; see also para. 50. So long as Parliament’s apprehension of harm is reasoned and its legislative action is, in pith and substance, a response to that apprehended harm, it has wide latitude to determine the nature and degree of harm to which it wishes to respond by way of the criminal law power, and the means by which it chooses to respond to that harm: Malmo‑Levine, at para. 213, per Arbour J.; RJR‑MacDonald, at para. 44; Firearms Reference, at para. 39.

Taken together, the requirements established in the Margarine Reference and subsequently applied in this Court’s jurisprudence mean that a law will have a criminal law purpose if its matter represents Parliament’s response to a threat of harm to public order, safety, health or morality or fundamental social values, or to a similar public 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 court does not determine whether Parliament’s criminal law response is appropriate or wise. The focus is solely on whether recourse to criminal law is available under the circumstances.

This Court has consistently recognized that individuals have powerful interests in autonomy and privacy, and in dignity more generally, protected by various Charter guarantees: see, for example, R. v. Morgentaler, [1988] 1 S.C.R. 30, at p. 166, per Wilson J. It has specifically recognized individuals’ clear and pressing interest in safeguarding information about themselves — the ability to do so is “closely tied to the dignity and integrity of the individual, [and] is of paramount importance in modern society”: R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488, at para. 66; R. v. Dyment, [1988] 2 S.C.R 417, at p. 429.

Parliament has often used its criminal law power to protect these vital interests, acting to protect human dignity by safeguarding autonomy and privacy. The prohibitions on voyeurism in s. 162(1)  of the Criminal Code, R.S.C. 1985, c. C‑46 , and on wilfully intercepting private communications in s. 184 , for example, both protect individuals’ well‑established interests in privacy and autonomy, while the prohibition on voyeurism also protects sexual integrity: Jarvis, at paras. 48 and 113. Safeguarding autonomy and privacy are established uses of the criminal law power.

Parliament is entitled to use its criminal law power to respond to a reasoned apprehension of harm, including a threat to public health.

Parliament took action in response to its concern that individuals’ vulnerability to genetic discrimination posed a threat of harm to several public interests traditionally protected by the criminal law. Parliament enacted legislation that, in pith and substance, protects individuals’ control over their detailed personal information disclosed by genetic tests in the areas of contracting and the provision of goods and services in order to address Canadian’s fears that their genetic test results will be used against them and to prevent discrimination based on that information. It did so to safeguard autonomy, privacy and equality, along with public health. The challenged provisions fall within Parliament’s criminal law power because they consist of prohibitions accompanied by penalties, backed by a criminal law purpose.

The appellant seeks special costs in this Court no matter the outcome of this appeal.

Given the appellant’s success on the merits of this appeal, the Court must determine whether it should exercise its discretion to award special costs.

In my view, this is not an appropriate case for this Court to award special costs. Ordinary costs suffice. Although, as the appellant points out, it is unusual that no attorney general appealed from the Quebec Court of Appeal’s opinion in this reference, that alone does not make this an “exceptional” case justifying the award of special costs: Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 140; Association des parents de l’école Rose‑des‑vents v. British Columbia (Education), 2015 SCC 21, [2015] 2 S.C.R. 139, at para. 84.

Moreover, I am not convinced that the appellant has demonstrated that it was impossible for it to pursue this litigation with private funding: Carter, at para. 140; École Rose‑des‑vents, at para. 84. In contrast with the significant costs borne by the parties in both Carter and École Rose‑des‑vents, where the appeals came after costly and lengthy trials needed to develop the full factual records required to deal with the complex constitutional questions raised in those cases, the appellant did not bear such costs. This appeal arose on a reference, and there was no such need. Indeed, the appellant participated as an intervener, rather than as a full party, at the Quebec Court of Appeal.

I would allow the appeal with costs on a party-and-party basis and answer the reference question posed by the Government of Quebec in the negative.”

Full Decision