The Genetic Non-Discrimination Act: A Valid Exercise of the Federal Criminal Law Power? (Part 2)

This is the second of a two-part post discussing the constitutionality of The Genetic Non-Discrimination Act, SC 2017, c 3. Part I provides the legal context for the constitutional issues surrounding the legislation, and presents the arguments for the act as a valid exercise of the federal criminal law power. Part II outlines the arguments for the Act as an invalid exercise of federal authority and considers several policy arguments which highlight the potential benefits and limitations of the legislation.

Arguments for the Genetic Non-Discrimination Act as an Invalid Exercise of the Federal Criminal Law Power

Unlike other industries, such as banking, insurance is not specifically enumerated as head of power in the Constitution Act, 1867 and its regulation has therefore been contended for by both the federal and provincial levels of government. However, because most insurance services are provided within the provinces as opposed to inter-provincially, the courts have held that the regulation of insurance services is within the exclusive jurisdiction of the provincial legislatures pursuant to provincial jurisdiction over intraprovincial trade (Citizen’s Insurance Co v Parsons, [1881] UKPC 49). In the recent case of Canadian Western Bank, [2007] 2 SCR 3, paras 80-81, the SCC re-affirmed that the regulation of the terms of contracts comes within the property and civil rights power (section 92(13)) rather than the federal trade and commerce power (section 91(2)). While it is the case that the federal government continues to regulate “a substantial part of the insurance industry” (Peter W Hogg, Constitutional Law of Canada (Toronto: Thomson Reuters, 2016) at 21-7, 21-8), any attempts by Parliament to impose prohibitions on transactions that take place within the provinces will be invalid.

With this in mind, both the Federal Department of Justice and the Canadian Life and Health Insurance Association (“the CLHIA”) argue that the true purpose of the Genetic Non-Discrimination Act is to regulate contracts and the provision of goods and services, which are matters generally falling within provincial jurisdiction. More specifically, the CLHIA argues that the pith and substance of the Act is the regulation of services and contracts in the insurance industry to limit the use of genetic testing information and encourage individuals to undergo genetic testing (Torys LLP (on behalf of the CLHIA), “Constitutionality of Bill S-201” (Brief delivered at the Standing Committee on Justice and Human Rights, 22 November 2016) at 1 [unpublished] [CLHIA, Brief]). In order to reach this conclusion, the CLHIA points to the fact that the practical consequences of the legislation will be to regulate insurers and employers because it is “primarily insurance companies and employers that may ask someone to provide the results of a genetic test” (CLHIA, Brief, 7). With this argument, the CLHIA is effectively suggesting that the purpose of the legislation can be inferred from its practical consequences.

Further, the CLHIA argues that the fact that the legislation “no longer mentions “insurance” does not change its purpose, but rather only broadens its practical effects on insurance contracts” (CLHIA, Brief, 3). However, the issue with the CLHIA’s position is that it equates the incidental consequences of the legislation with its true purpose. The argument is tantamount to the claim that simply because the law negatively affects the insurance industry, it is invalid. While potentially valid outside of the constitutional context, the argument fails here, as any incidental consequences are constitutionally irrelevant so long as the legislation’s dominant characteristic is a valid use of the federal criminal law power. For the claims of invalidity to be persuasive, a clearer link must be shown between the legislation’s aim and the regulation of the insurance industry specifically. On its face, it is not clear that the legislation is singling out the insurance industry.

In an attempt to establish such a connection between the Act and the regulation of insurance, the CLHIA makes use of Hansard evidence in which Senator Cowan stated that the current barrier to genetic testing is “the [fear] about not being able to obtain affordable insurance for oneself or one’s family or not being able to find or hold a job” (CLHIA, Brief, 7). According to the CLHIA, such a statement suggests the true purpose of the legislation is to encourage genetic testing by limiting the scope of the powers that insurance companies have to request information. This is a potentially fruitful foothold to try to convince the court that the legislation is actually motivated by a desire to enable better access to insurance rather than to promote health. If this were the case, it would seem to be a clear attempt to regulate the industry. However, it may be difficult to make this argument persuasively without more concrete evidence (of which there appears to be none in the four corners of the legislation).

Further, critics of the Act must still clear the hurdle of convincing the court that the blunt prohibition imposed by the Act is at a level of complexity that amounts to a regulatory scheme. The CLHIA takes this argument forward and asserts that the provisions cannot be viewed as a valid use of the criminal power because they seek to interfere with the business of insurance and thus “appear to lack a true criminal purpose” and do not aim to “prohibit human conduct that has an injurious or undesirable effect on the health of members of the public” (CLHIA, Brief, 1). While logically sound, this argument is problematic because it seems clear that a form of discrimination preventing individuals from safely and securely learning about their genetic profile may have an injurious effect on their health. If an individual cannot undergo testing for fear of discrimination, their health may very well be put in jeopardy. As such, in my view, the legal arguments against validity fail because they are unable to show persuasive evidence that the legislation is specifically aimed at hindering the insurance industry’s ability to adequately screen its customers.

Policy Considerations – Is the Legislation Well Conceived?

Beyond the legal arguments for and against the validity of the Act, there are also a number of relevant policy arguments that highlight the potential value and limitations of the legislation. These are important to consider because they offer insight into whether, beyond any issues of constitutional validity, the legislation will be beneficial for Canadians and its broader impacts on the legislative landscape in Canada.

First, the Department of Justice argues that establishing a criminal prohibition against genetic discrimination would be inconsistent with the prior policy of addressing discrimination solely through human rights legislation (The Minister of Justice, “Government Position Regarding Bill S-201, An Act to prohibit and prevent genetic discrimination” (Brief delivered at the Standing Committee on Justice and Human Rights, 17 November 2016) at 3 [unpublished]). As genetic discrimination is by no means distinct from other forms of discrimination, there appears little rationale for giving it a unique status. Further, as the penalties for contravening the Act are more serious than those for contravening human rights laws, enacting the legislation would be tantamount to saying that discrimination on the basis of genetics is worse than discriminating on the basis of other grounds enumerated in human rights legislation. In my opinion, this is a persuasive argument against the current form of the legislation as it highlights inconsistencies in the logic behind the Act.

In response to these arguments, Professor Ryder raises two points against a reliance solely on human rights legislation. First, Ryder suggests that as the Canadian Human Rights Act, RSC 1985, c H-6, does “not apply to most employers and a wide range of service providers who fall within provincial jurisdiction,” reliance on such legislation would leave gaps in protection (Ryder, Brief, 6). Second, on the issue of provincial human rights codes—which would be relied on to fill these gaps—Ryder points to the fact that only Ontario has introduced a bill to amend its human rights code to “add “genetic characteristics” as a prohibited ground of discrimination” (Ryder, Brief, 6). In essence, to rely solely on human rights legislation is to allow for a continued gap in protection against genetic discrimination. These arguments are also persuasive as they suggest that while perhaps somewhat inconsistent with prior treatment of issues of discrimination, the creation of a blanket criminal prohibition will be the most effective means of ensuring individual protection.

In my view, the strongest arguments challenging the Genetic Non-Discrimination Act are those that seek to amend rather than to invalidate it. I would suggest two such amendments to bring the Act into alignment with other like-minded legislation (i.e. human rights legislation) and to ensure its benefit to Canadians: First, that the penalty provisions be redrafted to be more in line with existing human rights standards which typically call for less severe punishment, and second, that there be a mandatory statutory review in three years to ensure the efficacy of the legislation and its ongoing relevance for Canadians. In particular, this review should consider whether the Act is actually providing the desired protection against genetic discrimination, and whether it remains the best way to ensure such protection. Both of these amendments would help reduce the threat of the legislation enabling a situation in which genetic discrimination is afforded a unique status in Canadian law.

Conclusion

On the whole, the constitutional arguments for the validity of the Genetic Non-Discrimination Act are stronger than those for invalidity. The legislation appears to be solely focused on the prohibition of genetic discrimination of all kinds. In my mind, this objective falls cleanly within Justice Rand’s formulation of the criminal law power (prohibition, penal sanction, public purpose) as it aims to protect the security and health of Canadians. Further, the use of the phrase “any person” as well as the broad scope of the terms “goods or services,” “contract or agreement,” and “terms or conditions” make it clear that the Act intends to fully close the gap in the law identified by Senator Cowan. If anything, the Act may suffer from being too broad and blunt in its formulation as it may be the case that there are groups other than medical practitioners and researchers that have a valid use for genetic information but will be prohibited by the legislation from accessing it. As such, it seems a difficult task to convince a court that the Act is in fact a complex regulatory scheme aimed at interfering with the insurance industry.

There is no doubt that the Act will lead to practical consequences for the insurers, and in all likelihood, will inhibit the industry’s ability to accurately actuarialize its customers with the degree of precision that the industry may desire. However, these consequences are merely incidental to the dominant goal of protecting the health of Canadians and thus the legislation is likely a valid use of the federal criminal law power. Though inconsequential to the constitutional analysis, the creation of a criminal prohibition against genetic discrimination seems, on balance, the most appropriate means of protecting Canadians.