Supreme Court Could Have Forced Parliament Accountability

By Y.Y. Brandon Chen

Many have welcomed the Supreme Court’s recent decision allowing the Genetic Non-Discrimination Act (GNDA) to stand. The GNDA, a federal law, bans people from forcing others to take a genetic test or share their genetic test results when providing goods or services or when entering into contracts. Insurance and employment are two examples where the law applies. People must give consent before their genetic test results can be used in these situations.

The goal of the law was laudable. Our likelihood to develop certain health conditions is partly influenced by our genes. Knowing these genetic risks enables us to prevent or to prepare for them. If people are afraid their private genetic data will be used against them by insurance companies or employers, they may avoid testing. This could undermine public health. Making decisions about people based on their genetics may also be discriminatory.

However, the way that the Court reached its decision to uphold the law raises real concerns.

The case was not about the need for the law, or its contents per se. Instead, it was about whether the federal government has the power under the Constitution to legislate in this area, as opposed to the provinces holding the authority to do so. The Constitution gives the federal government the power to make criminal law, and the majority of the Court decided that the GNDA falls under this power.

If you’re asking yourself how a law regulating the use of genetic information in an insurance or employment contract fits with things like theft and murder, you may not be alone.

According to constitutional law, for a statute to be characterized as criminal law, it must have a proper “criminal law purpose” and it must establish penalties for failing to respect its prohibitions. What counts as a criminal law purpose, however, is an ongoing debate.

Three of the five judge majority that upheld the GNDA adopted a liberal approach. They ruled that a federal statute has a criminal law purpose so long as it “addresses an evil, injurious or undesirable effect” on public interests like health and morality. This approach gives much deference to Parliament to determine what constitutes a risk of harm that it can constitutionally prohibit.

The problem is that the spectrum of issues relating to morality and health is extremely wide. This understanding of the federal criminal law power is potentially all-encompassing and fails to provide much guidance on the limits on federal power.

The problem is aggravated by a longstanding rule in constitutional law that says if both provincial and federal governments legislate on a matter and the resulting laws conflict, the federal law prevails. This federal paramountcy coupled with a broad criminal law power can run roughshod over provincial autonomy.

Why is this problematic? Effective governance in Canada requires provinces be given room to make laws tailored to local realities. It also undercuts Canadian federalism’s flexibility to create “laboratories of democracy,” where new policy ideas can be tested locally without jeopardizing the entire country.

For example, instead of a complete ban, a province may wish to prohibit insurance companies from demanding or using genetic test results for insurance policies worth, say, $250,000 or less, but not those of a greater amount. Rules like this have been adopted by some European countries. Some see this approach as better because it balances people’s access to a basic level of insurance, while allowing genetic risks to be factored into premiums above that point. But the GNDA may impede provincial exploration of such approaches.

We should not unduly limit Parliament’s ability to address important issues concerning the public interest in the name of respecting provincial autonomy. But there should be some checks and balances.

The dissenting judges in the GNDA case set out a better approach. For them, Parliament must provide evidence to establish the existence of a well-defined harm and also show that its law actually addresses that harm. In their view, Parliament failed to do so for the GNDA.

A more rigorous approach would encourage Parliament to invoke its criminal law power more carefully and only when necessary to address a threat to the public interest, so that beneficial space for provincial action is preserved.

Y.Y. Brandon Chen is a law professor and a member of the University of Ottawa Centre for Health Law, Policy and Ethics.

Post-pandemic Future