The federal Liberal government has signalled that it will be referring a public bill by the Senate on genetic privacy directly to the Supreme Court of Canada once it has been given royal assent.
The bill — which passed earlier this month — criminalizes the illicit sharing of genetic information and adds genetic characteristics as a prohibited ground for discrimination under human rights and federal labour laws.
However, in the move to send the bill to the SCC, insurance lawyers say they are concerned about further delays in getting clarity around what kind of evidence can be used when it comes to medical histories, which could have an effect in terms of how a person could work when making a claim for lost earnings.
“I think it’ll be up to the court to determine whether or not they’re going to take a wait-and-see approach to see how the law will govern us,” says Sudevi Mukherjee-Gothi, a partner with Torkin Manes LLP.
“I don’t know how that’s going to play out.”
Mukherjee-Gothi says the move to refer the bill to the SCC will mean the court will be in a position to make a decision about determining the relevance of information contained in medical histories in future cases.
“[I] don’t know how they’re going to balance this new legislation, which is going to be policy, versus in a litigation, the relevance of that information for a claim,” says Mukherjee-Gothi.
Carissima Mathen, a law professor at the University of Ottawa and former constitutional litigator, says the SCC may have an issue with the use of criminal powers to combat discrimination.
The move to refer the bill to the SCC is unusual, say lawyers, considering that the cabinet is challenging a bill that parliament has already passed.
“In recent years, the court has expressed concern about using the criminal law in a regulatory rather than prohibitive manner,” says Mathen.
She says “the criminal power” of the bill is broad and raises “an issue concerning the interaction with provincial powers to regulate insurance.”
“There’s no question that the criminal law power has in general been given a pretty broad reading by the court, but it does have limits,” says Mathen.
Federal Attorney General and Justice Minister Jody Wilson-Raybould has previously expressed concerns that the changes to the Canada Labour Code around genetic discrimination would duplicate the efforts of the changes to the Canadian Human Rights Act.
She also stated that she was concerned that the use of criminal powers to prohibit genetic discrimination could upset the constitutional balance between federal and provincial powers.
“Preventing discrimination and other forms of misuse of genetic information is a duty of all governments,” Wilson-Raybould said in an emailed statement to Law Times.
“Our government recognizes and respects the will of the House in adopting Bill S-201 and will wait for the Parliamentary process to conclude, but our intention is to make the reference.
We continue to have concerns with the constitutionality of part of the Bill and that is what is motivating the reference.”
Wilson-Raybould also expressed concern that changes to the Canada Labour Code in the bill were not being undertaken through tripartite (employer-labour-government) consultation and consensus.
The decision to refer the bill to the SCC could impact insurance litigation where there is a dispute over policy coverage, particularly over the sections that prohibit the use of genetic testing results in respect of continuing a contract or agreement with individuals.
“This could potentially come up in travel insurance type coverage disputes, as that type of insurance often has exclusions for ongoing conditions,” says Roberto Ghignone, associate with Borden Ladner Gervais LLP in Ottawa, who practises in health and insurance law.
“It could potentially lead to some uncertainty of delay in resolution of some actions if one of the litigants, likely plaintiffs in those types of cases, takes the position that this bill applies to prevent genetic testing in account,” he says.
“At the same, by referring it directly [to the SCC], it likely speeds up the process of getting clarity on the issue sooner than allowing cases to work their way gradually up to the Supreme Court.”
Liberal MP Rob Oliphant, the bill’s sponsor in the House of Commons, says he hopes that if the reference does go ahead it happens quickly and that he will be appealing to the government to make funds available to groups wishing to argue in favour of the bill such as the Coalition for Genetic Fairness.
“Otherwise, it would be a very one-sided presentation of the case and I don’t think that’s in anyone’s interest,” says Oliphant.
“I think it would be in the best interest of the government to follow the long-standing Liberal tradition of ensuring that groups are funded, whether it’s a court challenge or a court reference.”
Oliphant says he has received thousands of emails about the issue, and while he hopes that the defence of the bill is done through public funding, he is sure that the 18 charities that support the bill will find a way to ensure that their voices are heard at the SCC.
Oliphant also notes that the minister approached all of the provinces and territories, appealing to them to say it was against their jurisdictional authority.
“Only three responded, and 10 did not respond,” Oliphant says.
“I think that bodes well for this.”
Eugene Meehan, partner with Supreme Advocacy LLP in Ottawa, says the move to send the bill to the SCC makes sense, “given that the key issue is whether Bill S-201 intrudes on provincial jurisdiction.”
“The draft Bill not only creates the Genetic Non-Discrimination Act but also amends the Canada Labour Code and Canadian Human Rights Act.
Given the potential wide reach of the amendments, the fastest way to see if it will pass a constitutional litmus test is to go straight to Canada’s top court — fast-tracking to the terminus instead of a constitutional litigation milk run,” says Meehan.
He notes that with any case referred to the Supreme Court of Canada, they will want to ensure they provide an answer that avoids unintended consequences.
“For references, this means sometimes the court will decline to answer a question because it is arising in the abstract,” says Meehan.
“Bill S-201 is far enough along that the court will likely have reasonable record and factual basis to work with.”
Mathen, for one, says that if the minister of Justice is concerned that the bill is ultra vires, there’s nothing out of bounds with a reference to the Supreme Court.
However, she says it’s a political move, as the criminal law can be used to shield federal action to regulate conduct instead of prohibiting it on the basis that it presents a public harm.
Plus, Mathen says there is another issue.
“The other thing is that with a reference, [the cabinet] gets to set the questions, which is a very powerful tool that is only available on a reference,” says Mathen.
“In any other case, if you’re talking about constitutionality, it’s the court that actually decides the question.
The parties make arguments about it, and then the chief justice sets the constitutional questions.
The Supreme Court can and has occasionally departed from the questions the government wants it to answer, but by and large, that’s the significant advantage that it has.”