In 2017, Parliament enacted the Genetic Non‑Discrimination Act (the “Act”). The Act was created to protect Canadians genetic information, who otherwise would be forced to take a genetic test or provide the results to employers and insurance companies. The Act introduced the first nationwide penalty against genetic discrimination, including a fine up to one million dollars and/or imprisonment for five years.
Section of Interest
Section 3 (1) of the Act, states that it is prohibited for an individual to undergo a genetic test as a condition of:
- providing goods or services to that individual;
- entering into or continuing a contract or agreement with that individual; or
- offering or continuing specific terms or conditions in a contract or agreement with that individual.
The Act was referred to the Quebec Court of Appeal by the Quebec government on grounds its provisions were unconstitutional. The Quebec Court of Appeal held that the Act strayed beyond the federal government’s jurisdiction over criminal-law powers.
The Court’s decision was then appealed to the Supreme Court of Canada (the “SCC”) by the Canadian Coalition for Genetic Fairness. In a 5-4 decision, the SCC decided that the Act was in fact a constitutional exercise of the federal government’s criminal law powers.
The majority found that the provisions in question are supported by criminal law because they “respond to a threat of harm to…overlapping public interests traditionally protected by the criminal law” (such as autonomy, privacy, equality and public health). The Court found that genetic discrimination and the fear of genetic discrimination are barriers to accessing effective health care, attaining employment, preventing the onset of health conditions, and so forth. As a result, the Court concluded that the Act provides individuals with the necessary safeguards needed to dictate the manner and extent to which their genetic test results may be collected, disclosed, or used against them.
The dissent, however, which included Chief Justice Wagner, found the Act to lack the necessary characteristics to be considered a valid criminal law. The dissent pointed to a lack of a well-defined threat to public health or the existence of any evidentiary harm to make up the components of a valid criminal law.