On May 4, 2017, the federal government enacted the Genetic Non-Discrimination Act (GNDA).¹ On July 10, 2020, in Reference re Genetic Non-Discrimination Act (Reference),² the Supreme Court of Canada (SCC) rendered a split decision (5-4) holding that specific sections of the GNDA were constitutional because they were within the jurisdiction of Parliament over criminal law.  Therefore, federally-regulated employers should note that the disputed sections of the GNDA continue to apply to them; employers will be committing a criminal offence and subject to the GNDA’s criminal sanctions if they use or demand genetic testing, or the results of genetic testing, as a condition of employment, or discriminate based on a refusal to provide consent.

Background

The purpose of the GNDA is to eliminate discrimination based on genetic characteristics.  The statute attempts to achieve this in three distinct ways:

1.  It establishes a prohibition against requiring an individual to undergo a genetic test or disclose the results of a genetic test as a condition of providing goods or services to that individual, entering into or continuing a contract or agreement with that individual, or offering specific conditions in a contract or agreement with that individual.³ Violation of this prohibition is a criminal offence punishable by a maximum fine of $1,000,000, or imprisonment of up to five years.⁴

2.  It adds new provisions relating to genetic testing to the Canada Labour Code (CLC).⁵ They include:

• A provision that prohibits employers from requiring employees to undergo or disclose a “genetic test.”  It defines a “genetic test” as “a test that analyzes the employee’s DNA, RNA or chromosomes for purposes such as the prediction of disease or vertical transmission risks, or monitoring, diagnosis or prognosis.”
• A provision that prohibits employers from taking any disciplinary action against an employee because the employee refused to undergo a genetic test, disclose the results of a genetic test, or on the basis of the results of a genetic test.
• A provision that prohibits employers from collecting or using the results of a genetic test without the written consent of the employee.
• A provision that prohibits third parties from disclosing the results or existence of a genetic test to an employer without the employee’s written consent. 

3.  It adds a new ground of discrimination, “genetic characteristics,” to the Canadian Human Rights Act (CHRA).⁶ The CHRA does not define “genetic characteristics,” however it indicates that where the form of discrimination is based on a refused request to undergo a genetic test or to disclose the results of a genetic test, the discrimination shall be deemed to be based on genetic characteristics. 

Decision of the Quebec Court of Appeal (QCA)

The Quebec government brought the issue to the QCA.  The question before the court was whether the sections of the GNDA that make it a criminal offence to require an individual to undergo a genetic test, or provide the results of a genetic test as a condition of obtaining access to goods or services or to entering into a contract, were outside the federal government’s jurisdiction because the federal criminal power was used to legislate on a subject that is reserved for the provinces. 

The sections of the GNDA that amended the CLC and added “genetic discrimination” as a new prohibited ground of discrimination in the CHRA were not subject to challenge.  

The QCA unanimously agreed⁷ with the Quebec government that the sections in question were unconstitutional because they were outside the federal government’s jurisdiction.  Its view was that the rules set out in the GNDA relate to contracts and the promotion of health and, as such, they are beyond Parliament’s jurisdiction.  

Majority Decision of the SCC

The Canadian Coalition for Genetic Fairness, an intervener at the QCA, appealed to the SCC.  The majority of the SCC overturned the decision of the QCA when it decided that the challenged sections were constitutional because they were Parliament’s response to a threat of harm protected by overlapping public interests traditionally protected by criminal law.  Noting that individuals have “a privacy interest in not finding out what their genetic information reveals about them and their health prospects,” Justice Karakatsanis also stated:

Parliament took action in response to its concern that individuals’ vulnerability to genetic discrimination posed a threat of harm to several public interests traditionally protected by the criminal law. Parliament enacted legislation that, in pith and substance, protects individuals’ control over their detailed personal information disclosed by genetic tests in the areas of contracting and the provision of goods and services in order to address Canadian’s fears that their genetic test results will be used against them and to prevent discrimination based on that information. It did so to safeguard autonomy, privacy and equality, along with public health. The challenged provisions fall within Parliament’s criminal law power because they consist of prohibitions accompanied by penalties, backed by a criminal law purpose. (para. 103)

Justice Moldaver agreed with Justice Karakatsansis’ determination that the challenged provisions fell within the federal government’s criminal law power, however in his view the pith and substance of the challenged provisions “is to protect public health by prohibiting conduct that undermines individuals’ control over the intimate information revealed by genetic testing.”

Dissenting Decision of the SCC

On behalf of the four dissenting judges, Justice Kassirer wrote that the provisions in question were ultra vires the federal government’s jurisdiction over criminal law and fell instead within provincial jurisdiction over property and civil rights. In his view, the true aim of the provisions is to regulate contracts, particularly contracts of insurance and employment, so that Canadians will be encouraged to undergo genetic tests to improve their health without fear that the tests will be misused. 

Bottom Line for Employers

The decision of the SCC in Reference re Genetic Non-Discrimination Act puts federally-regulated employers on notice that the disputed sections of the GNDA are constitutional and continue to apply. Accordingly, they must not forget that they will be committing a criminal offence and subject to the GNDA’s criminal sanctions if they use or demand genetic testing, or the results of genetic testing, as a condition of employment, or discriminate based on a refusal to provide consent.