July 10, 2020 – Following a ruling by the Supreme Court of Canada today regarding the constitutionality of the Genetic Non-Discrimination Act, Daniel Therrien, Privacy Commissioner of Canada, issued the following statement:
We welcome today’s decision by the Supreme Court of Canada upholding the constitutionality of the Genetic Non-Discrimination Act. The Act bolsters the privacy rights of Canadians, not only in respect to their personal information, but their bodily integrity and their very dignity as human beings.
The Act affirms that people are in no way obliged to disclose their genetic test results to an employer or insurance company or any other business, nor should they feel any pressure to do so. If, on the other hand, a person wishes to disclose their results voluntarily, that person’s consent must be in writing, fully informed and freely given.
In its reasons the majority of the Court noted that the Act was aimed at protecting the important interest individuals have in deciding whether or not to access the detailed genetic information revealed by genetic testing and whether or not to share their test results with others.
The collection of personal information, including sensitive genetic information, can result in discrimination. In a time of unprecedented demand for personal data, this law is a critically important development for privacy protection.
Case in Brief
Reference re Genetic Non-Discrimination Act
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Decision
Date: July 10, 2020
Neutral Citation: 2020 SCC 17
Breakdown of the decision:
Reasons by: Justice Andromache Karakatsanis said the rules were about combating genetic discrimination and protecting health, and that Parliament had the power to make the rules because this fell under criminal law (Justices Abella and Martin agreed)
Concurring: Justice Michael
Moldaver said the rules were about protecting health by making sure people had control over their genetic information, and that Parliament had the power to make the rules because this fell under criminal law (Justice Côté agreed)
Dissenting: Justice Nicholas Kasirer said the rules affected only contracts and tried to prevent the misuse of people’s genetic tests in order to promote their health, and that since provinces are responsible for making laws about contracts, it was outside of Parliament’s power to make these rules (Chief Justice Wagner and Justices Brown and Rowe agreed)
On appeal from the Court of Appeal of Quebec
Case information (38478)
Webcast of hearing
Lower court rulings:
Answer to question on reference (Court of Appeal of Quebec)
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Parliament had the power to make it a crime to force someone to get genetic testing or reveal their test results, the Supreme Court has ruled.
Genetic testing looks at genetic material (like DNA) from a person’s body. It can find out personal information, like what diseases a person might have, develop, or pass on to their children.
Parliament passed the Genetic Non-Discrimination Act to make rules on genetic testing related to diseases. It made it a crime to force someone to get that testing, or share their results, to sign a contract or buy something. For example, insurance companies couldn’t make people get tested to get life insurance coverage. Parliament also made it a crime to collect, use, or share the results of someone’s genetic tests without their permission. Anyone breaking the rules could be fined up to $1 million or put in jail for up to five years, or both.
The Government of Quebec didn’t think Parliament had the power to make these rules. That’s because Canada’s Constitution gives different powers to the provinces and the federal government. For example, Parliament (the branch of the federal government responsible for making laws) has the power to make criminal laws. Provincial legislatures (which make laws for each province) can make laws about property and civil rights. This includes laws about buying and selling goods and services. If a provincial legislature or Parliament passes a law that only the other has the power to make, the law will be unconstitutional.
The Government of Quebec asked the Quebec Court of Appeal to decide if the rules were unconstitutional. The Attorney General of Quebec said the rules were unconstitutional because they were really about making rules for insurance and employment contracts and promoting health, not about making criminal law. The Attorney General of Canada agreed.
The Attorneys General of Quebec and Canada both argued that the rules were unconstitutional. To make sure it heard the other side of the argument, the Court of Appeal appointed an “amicus curiae” to argue that they were constitutional. “Amicus curiae” is a Latin term meaning “friend of the court.” It is an independent lawyer a court asks to take part in a case. The amicus curiae said the rules were meant to protect the security and dignity of vulnerable people, and to prevent outcomes that would be morally wrong. He said this fell under Parliament’s power to make criminal law.
The Court of Appeal agreed with the Attorneys General and said the rules were unconstitutional. It said Parliament didn’t have the power to make the rules because they were really about things under provincial power. The Court of Appeal said the rules didn’t have anything to do with criminal law.
The Canadian Coalition for Genetic Fairness was an “intervener” when the Court of Appeal heard the case. Interveners are people or groups who get the court’s permission to give their point of view. They make arguments in writing. Some are also allowed to make short arguments in person at the hearing. They help judges see different angles and make better decisions. The Coalition said the rules fell under Parliament’s power to make criminal law because they protected people’s health, privacy, and equality. The Coalition appealed the Court of Appeal’s decision to the Supreme Court.
Most of the judges at the Supreme Court said the rules were constitutional. Five judges agreed that Parliament had the power to create the rules. They said the rules were criminal law because they prohibited something and created punishments for breaking the rules, and because the rules were trying to prevent certain kinds of harm. They said this is what criminal law is meant to do. These judges disagreed over what the rules were really about and the kinds of harm they were meant to prevent.
This case came to the Supreme Court as an appeal from a provincial “reference.” References are questions that governments ask courts for their opinion on. (In law, an “opinion” isn’t just a belief or point of view. It is a formal explanation of the law.) The federal government can ask the Supreme Court for a legal opinion on an issue. Provincial and territorial governments can ask their Courts of Appeal for opinions, and these opinions can be appealed to the Supreme Court. Appeals in references from Courts of Appeal don’t need leave (permission) to be heard by the Supreme Court. This case began as a reference to the Quebec Court of Appeal by the Quebec government.
Cases in Brief are prepared by communications staff of the Supreme Court of Canada to help the public better understand Court decisions. They do not form part of the Court’s reasons for judgment and are not for use in legal proceedings.
Following today’s Supreme Court of Canada’s ruling over the constitutionality of the Genetic Non-Discrimination Act, Marie-Claude Landry, Chief Commissioner of the Canadian Human Rights Commission, issues the following statement:
“Today is a victory for the human rights and privacy of all Canadians. The Canadian Human Rights Commission applauds today’s Supreme Court of Canada decision affirming the constitutionality of the 2017 Genetic Non-Discrimination Act. This means that discrimination against a person because of their genetic makeup remains illegal across the country, and that people in Canada do not have to live in fear of how their genetic information could one day be used against them.
“For years, the Canadian Human Rights Commission has joined the voices of other advocates in calling for stronger protections at all levels of Canada’s governments against the harms of genetic discrimination.
“Genetic research and the uses of genetic information is a quickly evolving area of science, with already proven benefits. But we have yet to fully understand the vast implications and potential risks. As the technology develops, human rights and privacy rights must develop along with it.
“A person’s decision to take a genetic test that could save their life should not be a calculated risk. It should not come at the price of not being hired, of not being able to adopt a child, travel, get insurance, or access health care. People in Canada should not have to be afraid that the very technology meant to help them may one day be used against them, or their children.
“While today’s ruling is reassuring to people across Canada who need the benefits of a genetic test, there is still work to be done. Since 2017, the Canadian Human Rights Act offers added protection against genetic discrimination under federal jurisdiction. We will continue to encourage provincial and territorial governments to make similar improvements to their own human rights legislation. In addition, we urge Parliament to affirm privacy as a human right in Canada. A human rights approach to privacy law reform in this country is needed to address emerging concerns about how technology and the digital world are increasingly affecting our everyday lives.
“Technology and privacy are fundamental to the next generation of human rights. Everyone in Canada should be able to benefit from technology without fear. Today’s ruling is a critical step in the right direction.”
SOURCE: AUTORITA’ PER LA PROTEZIONE DEI DATI DEL CANADA – SUPREME COURT OF CANADA – CANADIAN HUMAN RIGHTS COMMISSION