Parliament has the power to criminalize compulsory genetic testing and the forced disclosure of voluntary genetic test results, the Supreme Court of Canada has decided.
The decision has broad implications for insurance companies and employers, who face severe penalties if found guilty of using information from genetic testing for insurance or employment purposes. It also has public health implications, claiming that patients can be tested without fear that the tests will one day be used against them.
In 2017, Parliament made it a crime, punishable by up to five years in prison and a million dollar fine, to force someone to take a genetic test as a condition signing a contract or receiving products or services. Genetic testing can reveal a predisposition to certain diseases.
The question for the Supreme Court was whether Parliament had the power to criminalize compulsory genetic testing and compulsory disclosure of test results when the tests were carried out voluntarily. Under the original 1867 Constitution of Canada, criminal law was under federal jurisdiction, but insurance and contract laws were under provincial jurisdiction.
Quebec argued that the real subject of the Genetic Non-Discrimination Act was the regulation of genetic information for insurers and employers. He had asked the Quebec Court of Appeal to give an advisory opinion on the constitutionality of the law, and in 2018, the court of appeal decided by 5-0 that the law was not under federal jurisdiction. The Canadian Coalition for Genetic Fairness, an advocacy group that includes the Alzheimer Society and the Canadian Cancer Society, has appealed this decision to the Supreme Court.
To decide whether the law was truly criminal in nature, it was necessary to consider whether it imposed a prohibition and a sanction, which it did; but it also meant examining the purpose and effects of the law – what the law actually consists of, the court said.
The majority in Decision 5-4 stated that the essence of the law was the protection of dignity, autonomy, privacy and health, which it qualified as appropriate subjects for criminal law. The minority said they were contracts. The majority divided into two groups to explain their point of view.
“Parliament is entitled to use its criminal law power to respond to a reasoned apprehension of harm, including a threat to public health,” wrote Justice Andromache Karakatsanis for the entire group, which included also Justice Rosalie Abella and Justice Sheilah Martin.
An insurance industry coordinating group, the Canadian Life and Health Insurance Association, intervening in this case, argued that the law deprives insurers of essential information, “undermining a central underwriting principle insurance: equality of information between insurers and policyholders, “he said in a written argument filed with the Supreme Court.
Kevin Dorse, a spokesperson for the association, said Friday that she respects the decision and “will continue to adhere to the law on genetic non-discrimination”.
The law was unusual in that it began with a Senate private member’s bill sponsored by retired Senator James Cowan. The then-majority Liberal government opposed it, but allowed its members to vote as they saw fit. The law was passed by 222 votes to 60.
Equally unusual, the Attorney General of Canada (at the time, Jody Wilson-Raybould), opposed the law before the Quebec Court of Appeal, leaving federal law without his main advocate. The Quebec Court of Appeal, then the Supreme Court, appointed Montreal lawyer Douglas Mitchell friend of the court to advocate for the law. When the law reached the Supreme Court, David Lametti was the Attorney General; Although he had voted for the law on genetics, his department had opposed the law in court, saying that his goal, although laudable, was to regulate insurance contracts.
Cowan said in an interview on Friday that he was unaware of any case in which a federal or provincial attorney general had opposed a law in court that had been passed by their legislatures.
He said that the Toronto Hospital for Sick Children made his case to him and so did Liberal MP Rob Oliphant, who sponsored the bill in the House, that parents were reluctant to have genetic tests that could have helped pinpoint the problems facing their children, due to the risks that the information may one day be used against them.
Oliphant said in an interview on Friday that “so much pressure has been put on me not to do it.” He declined to say who, other than “various sources.” He congratulated Prime Minister Justin Trudeau for allowing Liberal MPs to vote their conscience on a private member’s bill.
Lametti declined to say why the government objected to a law in court that had been passed by Parliament. He said in a statement that he was reviewing the decision, and that those who take genetic tests “must have confidence that their privacy will be respected and that the sensitive information they obtain will not be used to discriminate against them in any way.” title whatever. “
Mitchell said in an interview that the decision “will help improve the health of Canadians and protect vulnerable Canadians.”
Joe Arvay, a lawyer representing the Coalition for Genetic Equity, called it “a huge relief for those who face the dilemma of obtaining, for example, insurance or genetic testing.” Co-counsel Bruce Ryder said the decision opens the door to the enactment of new offenses to address environmental, privacy and discrimination.
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