Québec Court Of Appeal Strikes Down Federal Genetic Non-Discrimination Act


On May 4, 2017, the Genetic Non-Discrimination Act (Act) received royal assent and came into force, despite the federal Minister of Justice's opinion that the Act was unconstitutional. The Government of Québec quickly challenged its constitutionality, referring the question to the Québec Court of Appeal for an advisory opinion and arguing that the Act was beyond federal jurisdiction over criminal law. The federal government did not defend the law, so an amicus curiae was appointed and interveners came forward to support the law. They argued that the law was a valid exercise of the federal criminal law power.

On December 21, 2018, a five-judge panel of the Court struck down the law on the grounds that it was unconstitutional, finding that the Act's pith and substance was not criminal law, but rather property and civil rights.i

Through close monitoring of the Court's docket, Fasken has learned that an intervener, the Canadian Coalition for Genetic Fairness, has filed an appeal to the Supreme Court. The Court has accepted that an appeal lies as of right, and that no grant of leave is required. As a result, this case is headed to the nation's highest court for a decision.

The Act's Impugned Provisions

As discussed in a prior Fasken bulletin, sections 3-4 of the Act prohibit anyone from requiring that an individual undergo or disclose the results of a genetic test as a condition of providing goods or services, or as a condition of entering into or maintaining any contract. Section 5 prohibits any person engaged in such activities from collecting, using, or disclosing the results of a genetic test of the individual without his or her written consent. Section 2 defines a genetic test as "a test that analyzes DNA, RNA or chromosomes for purposes such as the prediction of disease or vertical transmission risks, or monitoring, diagnosis or prognosis."

The Act is backed with criminal sanctions and maximum fines of $300,000 and $1 million, depending on the severity of the offence.

Moreover, section 6 exempts healthcare practitioners and researchers from the application of sections 3-5, and thus from the penalties.

Sections 8-11 of the Act were not challenged. Section 8 modifies the Canada Labour Code to provide employees working for a federal undertaking the right to refuse to undergo or disclose the results of a genetic test. Sections 9-11 modify the Canadian Human Rights Act by adding "genetic characteristics" as a prohibited ground of...

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