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A valid criminal law purpose

The Supreme Court of Canada saves genetic privacy law by affirming the federal government's power to prohibit mandatory testing.

DNA graphic

Parliament acted within its criminal law powers to outlaw genetic discrimination, the Supreme Court of Canada ruled in a 5-4 decision last week. Still, the majority split 3-2 on how broadly they would determine their pith-and-substance analysis of the legislation in question.


“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,” wrote Justice Andromache Karakatsanis for the majority. “The prohibitions in the Act protect autonomy, privacy, equality and public health, and therefore represent a valid exercise of Parliament’s criminal law power.”


The bill, which originated in the Senate and received royal assent in 2017, was opposed by cabinet and, in particular, by then-Attorney General Jody Wilson-Raybould. The Quebec government referred it to the Court of Appeal, which declared the law ultra vires to the criminal law powers. The Supreme Court of Canada has overturned that decision.


“This was a team effort,” says retired Senator James Cowan, who introduced the bill. “A lot of people worked very hard on it, and a lot of people were depending on a positive result, so they’re delighted today.”


Cowan adds that the decision is well-received by the medical and research community. Moving forward, he says, doctors can continue telling their patients that this protection exists, and that they don’t need to worry about having the results fall into the wrong hands.


“When I started on this back in 2012, there were around 2000 genetic tests that were available,” says Cowan. “As of yesterday, there were 76,000. There has been an explosion of genetic tests for more and more conditions, and it’s really the key to personalized medicine.”


While the bill was being debated, says Cowan, the insurance industry claimed that passage of the law could mean increases in rates by as much as 50 per cent. That has not happened in the time since the bill passed.


“The insurance industry will accommodate itself to this,” Cowan said, noting that there is more to it than insurance. Genetic testing also raises concerns about insidious forms of discrimination in the workplace.


The Canadian Life and Health Insurance Association, which intervened at the Supreme Court in opposition to the legislation, offered a muted reply to the decision.


“We respect the Court’s ruling and the industry will continue to adhere to the Genetic Non-Discrimination Act,” said Kevin Dorse, the assistant vice-president of strategic communications and public affairs, and cited that they had no plans to comment further.


Joseph Arvay, a partner with Arvay Finlay LLP in Vancouver, who represented the Canadian Coalition for Genetic Fairness, says that the Supreme Court’s decision has profound implications beyond declaring the legislation to be constitutionally valid.


“It may be fairly described as affirming an expansive view of Parliament’s jurisdiction to enact criminal law and ensures that with whatever novel, yet harmful, conduct that might arise in the next few decades Parliament will have the powers to prohibit and punish that conduct where it poses a risk of harm not only to public health but also to autonomy, privacy and equality,” he says.


In the decision, Karakatsanis was supported by Justices Rosalie Abella and Sheilah Martin, while Justice Michael Moldaver’s separate reasons -- narrower in application -- received the support of Justice Suzanne Côté. 


Justice Nicholas Kasirer’s dissent, which echoed the Quebec Court of Appeal’s concerns that the legislation was more about health promotion than protection, was supported by Chief Justice Richard Wagner, as well as Justices Russel Brown and Malcolm Rowe.


All agreed on the overall methodology for determining if a law was a valid use of the criminal law powers. Much of the disagreement hinged, however, on the third criteria – whether the law addresses an evil, injurious or undesirable effect on a public interest traditionally protected by the criminal law.


Karakatsanis wrote that “The notion of ‘evil’ cannot serve to effectively limit Parliament to using the criminal law power to respond to moral threats,” adding that the criminal law is not confined to prohibiting immoral conduct.


Kasirer, in contrast, wrote that “the concept of ‘evil’ is necessary to remind Parliament that mere undesirable effects are not sufficient for legislation to have a criminal purpose,” and that it “remains conceptually useful for courts to search for an evil before the criminal law purpose requirement is satisfied.”


Justice Minister David Lametti had voted in favour of the bill before he joined cabinet. During the pleadings before the Supreme Court, Canada’s position had evolved to one where they would support the ability of Parliament to legislate on the issue of genetic discrimination if the court were to find the purpose of the legislation to be of federal jurisdiction, including the protection of core privacy interests.


“Genetic testing is a deeply personal matter for many Canadians and their families,” said Lametti in an emailed statement. “Those who choose to undergo this kind of testing must have confidence their privacy will be respected and that the sensitive information they obtain will not be used to discriminate against in them in any capacity.”


Lametti added that all governments have a responsibility to protect Canadians from this kind of discrimination in their respective jurisdictions, and that the federal government would continue to work with its partners on the matter.


“We are also keenly aware of the importance of protecting the privacy of Canadians’ sensitive information,” said Lametti. “This will be an important focus of the discussions moving forward.”