Canada SC | Parliament of Canada has power to criminalise forced genetic testing or disclosure of a person’s genetic test results without their consent

Supreme Court of Canada: While deciding the issues of constitutional validity of Genetic Non-Discrimination Act, S.C. 2017 criminalising compulsory genetic testing and non-voluntary use or disclosure of genetic test results in context of wide range of activities and Parliament’s jurisdiction over criminal law; a 9 Judge Bench of the Court with a ratio of 5:4 upheld the constitutionality of the 2017 Act, observing that Parliament has the power to criminalise actions such as forced genetic testing or disclosure of a person’s existing genetic test results as a condition of obtaining access to goods, services and contracts.

The Canadian Parliament enacted the Genetic Non-Discrimination Act, 2017 with the objective of establishing prohibitions relating to genetic tests. As per the legislation,  individuals and corporations cannot force people 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  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. The Legislation also amended the Canadian Human Rights Act to add genetic characteristics as a prohibited ground of discrimination. The Government of Quebec objected on the ground that Sections 1 to 7 of the 2017 Act exceeded Parliament’s authority over criminal law under Section 91(27) of the Constitution Act, 1867.

The majority comprising of Karakatsanis, Abella, Martin, Moldaver and Côté, JJ., looked into the pith and substance of the legislation in question. They observed that while determining whether a law falls within the authority of Parliament/ Provincial Legislature, a Court must first characterize the law and then, based on that characterization, classify the law by reference to the federal and provincial heads of power under the Constitution. The title of the Act and the text of the prohibitions provide strong evidence of objective of combatting genetic discrimination and the fear of genetic discrimination based on the results of genetic tests. The provisions of the Act do not target a particular activity or industry, but instead targets the conduct that enables genetic discrimination. It was further observed that Section 91(27) of the Constitution Act, 1867, gives Parliament the exclusive authority to make laws in relation to the criminal law. The majority noted that, “the essential character of the prohibitions in the 2017 Act represents the Parliament’s response to the risk of harm that the prohibited conduct i.e. genetic discrimination and the fear of genetic discrimination based on genetic test results pose to several public interests traditionally protected by the criminal law- autonomy, privacy, equality and public health”. Genetic discrimination threatens the fundamental social value of equality by stigmatizing and imposing adverse treatment on individuals because of their inherited, immutable genetic characteristics. Thus in pith and substance, the Legislation is a response to the risk of harm that the prohibited conduct and discrimination based on genetic test results, pose to autonomy, privacy and equality. The dissenting opinion was delivered by Wagner C.J. and Brown, Rowe and Kasirer JJ. [Canadian Coalition for Genetic Fairness v. Attorney General of Canada, 2020 SCC 17, decided on 10-07-2020]

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