December 21, 2018
Duval Hesler, Bich, Bélanger, Savard, Mainville
Reference concerning the Genetic Non-Discrimination Act enacted by sections 1 to 7 of the Act to prohibit and prevent genetic discrimination.
The pith and substance of sections 1 to 7 of the Genetic Non-Discrimination Act (S.C. 2017, c. 3) is to prohibit the use of genetic tests or of their results in order to allow Canadians to access these tests without their results being used without their consent when they enter into agreements with third parties or when they seek the provision of goods and services. The effect of these provisions impacts especially insurance contracts and, to a lesser extent, employment contracts.
These sections aim to protect and to promote health by fostering the access by Canadians to genetic tests for medical purposes. The Act mainly seeks to prevent that Canadians refrain from undergoing genetic tests for medical purposes for fear that the results be used without their consent in the context of a contract or of a service, notably for purposes of an insurance or an employment.
Despite the title of the Act, the pith and substance of sections 1 to 7 is not to prohibit genetic discrimination. Rather, they aim at prohibiting the access to information obtained through genetic testing, without forbidding the use of genetic information that may be disclosed voluntary or that may be required or obtained through other means. Nor do these sections prohibit genetic discrimination that could result from the use of such information.
One cannot discern in sections 1 to 7 of the Act the “evil” within the meaning of criminal law that Parliament seeks to ban here, if not in the perspective of fostering or promoting health, which cannot constitute a primary criminal law object. There is no “real public health evil” here that would justify the recourse to subsection 91(27) of the Constitution Act, 1867 (R.S.C. 1985. App. II., No. 5). The criminal law object advanced to justify the Act is to provide higher quality health care through the promotion of access to genetic tests by suppressing the fear that the results of these tests be used for insurance or employment purposes. This is clearly not a criminal law object.
Sections 1 to 7 of the Genetic Non-Discrimination Act do not constitute a valid exercise of the federal jurisdiction over criminal law.
*Summary by SOQUIJ
Version française de l'avis de la Cour: Renvoi relatif à la Loi sur la non-discrimination génétique
English version of the report of the Court: Reference concerning the Genetic Non-Discrimination Act
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