Join Cynthia Spry of Babin Bessner Spry LLP, as she interviews Kate Robertson of Markson Law, and Michael Bookman, also of Babin Bessner Spry LLP, regarding the recent decision by the Supreme Court of Canada in the Reference re: the Genetic Non-Discrimination Act, 2020 SCC 17.
In the Reference, the Court split two ways in three sets of reasons on the question of whether Parliament had validly exercised its criminal law power in enacting prohibitions on the taking and disclosure of genetic tests as a condition of obtaining access to goods, services and contracts.
Mr. Bookman and Ms. Robertson offer their insight into the decision - Mr. Bookman who acted as counsel to an intervenor in the Reference at the Supreme Court of Canada, and Ms. Robertson who consults on constitutional law matters relating to human rights and technology as a Fellow at The Citizen Lab at the University of Toronto.
Join Cynthia Spry of Babin Bessner Spry LLP, as she interviews Kate Robertson of Markson Law, and Michael Bookman, also of Babin Bessner Spry LLP, regarding the recent decision by the Supreme Court of Canada in the Reference re: the Genetic Non-Discrimination Act, 2020 SCC 17.
In the Reference, the Court split two ways in three sets of reasons on the question of whether Parliament had validly exercised its criminal law power in enacting prohibitions on the taking and disclosure of genetic tests as a condition of obtaining access to goods, services and contracts.
Mr. Bookman and Ms. Robertson offer their insight into the decision - Mr. Bookman who acted as counsel to an intervenor in the Reference at the Supreme Court of Canada, and Ms. Robertson who consults on constitutional law matters relating to human rights and technology as a Fellow at The Citizen Lab at the University of Toronto.
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Speaker 3:On this episode, we welcome Cynthia Spry and Michael Bookman of Babin Bessner Spry and Kate Robertson of Markson Law to talk about the Supreme Court of Canada's decision in the Reference re Genetic Non-Discrimination Act.
Cynthia Spry:Thanks so much for joining us today as we discuss the decision of the Supreme Court of Canada in the reference regarding the Genetic Non-Discrimination Act. I am Cynthia Spry, a partner of Babin Bessner Spry LLP in Toronto. And I am joined today by my colleagues, Kate Robertson, and Michael Bookman. Kate Robertson is an associate at Markson Law in Toronto. She is a trial and appellate lawyer, practicing criminal defense and regulatory litigation. She defends clients charged with all types of offenses under the Criminal Code, with a particular focus on white collae crime, public trust defenses, and computer based investigations and crime. Kate is a fellow at The Citizen Lab at the University of Toronto, where she consults on constitutional law matters relating to human rights and technology. Kate obtained her law degree from the University of Toronto and served as a law clerk at the Supreme Court of Canada for Justice Abella. Prior to joining Markson Law, Kate worked as a Provincial Crown Prosecutor at trial offices in Toronto, and as an appellate counsel at the Crown Law Office- Criminal. Michael Bookman is an associate at Babin Bessner Spry LLP in Toronto., Mike practices corporate commercial litigation, including commercial and shareholder disputes, securities tort and class action proceedings. He has appeared before all levels of court in both Ontario and Quebec, And before the Supreme Court of Canada. Mike graduated from the Faculty of Law at McGill University, where he served as an editor of the McGill Law Journal, and was a research assistant to professor David Lametti, the current Attorney General and Minister of Justice. From 2012 to 2013. Mike served as a law clerk to Justice Karakatsanis at the Supreme Court of Canada. Prior to law school. Mike was a consultant for a global political risk advisory firm in London, UK, and served as an officer in the Royal Canadian Navy. Mike sits on the board of Pen Canada, a nonpartisan organization of writers that works to defend freedom of expression at home and abroad. He also sits on the board of Peacebuilders, a not-for-profit dedicated to supporting youth in conflict. So getting right to it, Mike, let's start with you. Tell us what the Genetics Reference is all about.
Michael Bookman:Thanks, Cynthia. And, uh, hello, Kate. And thanks for having me, I'm looking forward to this. Um, the Genetics Reference is a really interesting case. I mean, there's so many things, uh, to talk about here, but, but at issue really was whether parliament in passing the Genetic Non-Discrimination Act had validly exercised its criminal law power. Um, and so maybe visiting a little bit of the history of, of, of this act would be helpful. Um, the Canadian parliamentarians were effectively, were concerned with the lack of legislation associated with medical genetic testing. Um, and, and what is that? Well, it, it, it's a kind of testing available to doctors in Canada where we can check, uh, effectively the DNA of human cells. Um, you can find changes in the gene, uh, uh, in chromosomal, uh, structure, uh, of someone's cells, which can help identify current or future, uh, medical problems, uh, that that test taker might experience. And so parliamentarians thought, well, this is a really important, um, in advance, in, in medical technology and there's no legislation around it to protect, uh, uh, folks who take the test. Uh, and so they pass the genetic non-discrimination act. Um, it's not a long piece of legislation. In fact, there's only a few operative provisions. Um, but those came before, uh, both the Quebec Court of Appeal and the Supreme Court in a reference to determine whether or not, uh, parliament had validly accessed size, a criminal law power. Um, and so may, maybe it makes sense at this stage to talk about these criminal law provisions. Um, there's a few prohibitions, uh, that parliament legislated. One, uh, it's prohibited for any person to require an individual to undergo genetic test as a condition of providing goods or services or entering a contract. Uh, it's also prohibited for any person to refuse to engage or provide goods ands services or enter a contract on the grounds that the individual refuses to undergo a genetic test. And it's also prohibited for any person to require that an individual disclose the results of their genetic test as a condition for providing goods or services. Uh, and of course there's a bunch of exemptions for healthcare practitioners, so that Canadians can of course go ahead and, and seek, uh, medical, genetic testing, uh, and that healthcare providers won't be subject or caught by the, the, the, uh, criminal law provisions. Uh, and then lastly, if any of these prohibitions are contravened, there's, uh, a fine or imprisonment, um, legislated as punishment.
Cynthia Spry:Okay, great. So tell us a little bit more about the context for the act, what were the circumstances in which it came to be law?
Michael Bookman:Sure. So it's actually quite a strange context, um, for a piece of legislation that is otherwise challenged under a reference procedure. So back in December of 2015, Senator, uh, James Cowan introduced bill S uh, 201, uh, which would eventually become the act and Senator Cowan, uh, was, uh, particularly concerned with protecting, uh, medical, genetic testing, uh, the results and the information that flows from it. Um, and so the Senate actually passed a bill unanimously. It went to the house of commons and passed with 222 members voting in favor. I mean, the odd thing here was that the liberal government at the time actually opposed the bill, uh, evidently a cabinet thought there may be an issue with the constitutionality of these provisions. Um, but they did not prevent back benchers from voting. It was effectively a free vote in parliament, an so, a majority of parliamentary, uh, parliamentarians voted in favor of the act, despite the fact that, um, the, the liberal government itself was not, uh, in, in support of the legislation.
Cynthia Spry:Kate, tell us a little bit about the reference, how did the proceedings begin?
Kate Robertson:Right. So as Mike was, uh, describing the less traditional origins of the legislation in parliament, um, those, uh, conditions also made for a somewhat less than traditional reference to the courts from government that wound up working their way up through the courts, to the Supreme Court of Canada. Um, the reference started when the government of Quebec referred the constitutionality of, uh, sections one through seven of the act, the criminal related, uh, offense provisions, um, to the Quebec court of appeal. And then the government of Quebec asked the court to conduct a division of powers analysis under the constitution, and to consider whether, whether or not these provisions were within the federal government's power to legislate under, uh, criminal law under section 91-27 of the constitution act of 1867. So the government of Quebec took the position, uh, or the AG of Quebec took the position that the pith and substance of the legislation pertained to property and civil rights, not criminal law, and that the provisions were unauthorized and, uh, somewhat unusually, the Attorney General of Canada, uh, also found herself aligning with the Attorney General of Quebec and, uh, likewise taking the position that the act was ultra vires parliament's criminal law authority. So we had a reference and on it went and, and with that, um, unusual, um, distribution of positions on the, uh, sides of the courtroom there, um, with both AGC on the same side, uh, there, there was a amicus appointed at that stage Douglas Mitchell, and, um, he carried on in his role onto the Supreme Court when it, when it ultimately went there.
Cynthia Spry:Mike, tell us about what happened at the Quebec Court of Appeal. What did they conclude on the reference?
Michael Bookman:So the Quebec Court of Appeal answered the reference question, uh, in the affirmative that is, the criminal prohibitions in the act, uh, exceeded parliament's authority, uh, to legislate criminal law. And so the Quebec Court of Appeal said, well, this legislation, the offense provisions here, uh, sections one through seven of the Genetic Non-Discrimination Act are effectively a colorable attempt by parliament to legislate in the area of contracts and insurance. And as Kate said, that's an area of legislative authority reserved, uh, for the provinces under Section, uh, 92-13 of the Constitution Act, uh, 1867. And, and the Quebec Court of Appeal found that actually what the pith and substance of this, uh, of this legislation was meant to do is legislate contracts and insurance all in the purpose of, or to the purpose of promoting health for Canadians. In other words, um, the Quebec Court of Appeal found that when parliament legislated, it was really trying to free up the opportunity or create a zone of comfort for Canadians to go ahead and secure, uh, or participate in genetic testing, uh, to their own benefit and in doing so, that was parliament promoting, uh, the health and wellbeing of Canadians, um, which would not find itself sort of characterized or classified as a proper criminal law purpose under Section 91, sub 27, uh, of the Constitution Act. So, so the Quebec Court of Appeal says, parliament you've exceeded your authority. So at that point, um, there, as Kate had mentioned, there was an amicus appointed, uh, Douglas Mitchell, and that AG Canada and AG Quebec were on the same side. So it was left to the intervener, uh, at the Quebec Court of Appeal, the Canadian Coalition for Genetic Fairness, um, to appeal the reference, uh, opinion rendered by the Quebec Court of Appeal. And, uh, that appeal is as of right to the Supreme Court of Canada.
Cynthia Spry:And then what happened at the Supreme Court level?
Michael Bookman:So the, uh, question came before the same question effectively came before, uh, the Supreme Court, uh, and there you had, uh, effectively as the appellant, the Canadian Coalition for Genetic Fairness, um, the amicus appeared as well, Douglas Mitchell, and, and then AG Canada and AG Quebec, um, effectively as respondents and then a series of interveners. And I should say that, um, as for full disclosure, um, our firm represented the Canadian College of Medical Geneticists, uh, as an intervener, uh, before the court. And, uh, three opinions were rendered by, uh, the Justices of the Supreme Court. Um, two of which form a majority and the majority found, um, that the, they, they actually answered the, a question, uh, in exactly opposite to how the Quebec Court of Appeal, uh, had answered the question in the view of the five justice, majority, uh, parliament was, uh, justified and validly exercised its criminal law, uh, legislative powers in the act. And so, um, Justice Karakatsanis wrote with Justice Abella and Justice Martin. Uh, one opinion, uh, Justice Moldaver was joined by Justice Côté in concurring in the same result as Justice Karakatsanis. And, uh, so that's the five justice majority, and then Justice Kasirer wrote, uh, in dissent, uh, and he was joined by the Chief Justice and Justices Brown and Rowe. Um, and I think there were effectively two divergences between the majority and, uh, and the minority in this case. Uh, and the, the one, the, the first divergence was really in the conclusion regarding the pith and substance analysis. So, um, there were generally similar approaches in law to how to, uh, undertake the pith and substance analysis that I'm sure we all remember from law school. Um, but, uh, they really drew different conclusions. So, um, you might remember that the analysis starts with trying to seek the dominant purpose of the legislation. So what was the Genetic Non-Discrimination Act meant to do? Um, and so to do that analysis, you can look to the intrinsic evidence and that is sort of the text, the legislation, um, and those kinds of things. And, and then extrinsic evidence, which was in this case, quite important, um, the parliamentary debates testimony before parliamentary subcommittees. So all of that evidence, um, along with the, the purpose and effects of the legislation really forms the pith and substance analysis and, and Justice Karakatsanis found that the pith and substance of the act was really to protect individuals control over their, uh, detailed personal information, their sort of genetic source code source code, which is disclosed in the process of genetic testing. So in, in her view, this legislation created a zone of protecting and control, protection and control around this important information. Justice Moldaver agreed with Justice Karakatsanis' uh, conclusion, uh, but was a bit narrower and concluded that the pith and substance was actually, um, about protecting the health of Canadians by prohibiting certain conduct that would undermine an individual's ability to control genetic testing and the results. Uh, and then Justice Kasirer takes an even narrower review and actually disagrees, um, in, in conclusion and says that the, the pith and substance, when you look at the intrinsic evidence and the extrinsic evidence, was really just a colorable attempt to regulate contracts and the provision of goods and services. And, and particularly when it comes to insurance and employment contracts. And he also in a, in agreeing with the, the opinion issued by, or rendered by the Quebec Court of Appeal also said, all of this in his view was to promote the health of Canadians, which is not a valid criminal law purpose, um, under, uh, in, in, in the historical jurisprudence about how we understand proper criminal law purposes. Um, so those were the sort of outcomes when it comes to the, the pith and substance analysis from the court.
Kate Robertson:Yeah, and it, it was interesting to, to me, I mean, Michael, you were there at the hearing and representing the college, and I, I watched the hearing online and certainly would recommend others do so it made for a really engaging discussion on the whole, um, it was very well argued by, by counsel all around. Um, but it, but it was interesting to me how the court dealt with the fact that, um, really the majority of the court ultimately didn't find at, um, genetic discrimination was the target, um, harm that the criminal offense provisions were were, were after, even though the title of the act itself, uh, expressly talks about genetic discrimination. And, um, it, it, it was, it made first sort of an interesting tension on how to deal with that. Um, I guess it's an elephant in the room to some degree that, um, the legislation was clearly, uh, the criminal offense provisions were, were, were regulating more directly the exchange of information, preventing forced testing and forced disclosure. So the argument on the one side is that, well, that's ultimately, uh, to prevent the down the line problem of genetic discrimination, whereas other, uh, judges were less convinced because ultimately, um, the criminal offense provisions don't directly prohibit genetic discrimination, which, which, which was an in tension for sure.
Michael Bookman:Yeah. I think that's absolutely right. And you're right. It was the elephant in the room, and there were a number of questions about that. And, and you could, at least I could read those questions sort of coming through or, or how council dealt with those questions coming through in the, in, and ultimately the opinions that were rendered. I Justice Karakatsanis clearly sees a number of different, um, mischiefs, if we can call it that, um, that, that are really, um, that really need, needed the regulation of parliament or that, or at least that's what parliament was attempting to regulate, including there were privacy issues at play. There were autonomy and sort of integrity of the person issues at play. There were, uh, public health issues at play. I mean, she took quite a broad view of, of what this legislation was directed at Justice Moldaver on the other hand, um, took a quite narrow view and he said, um, while really this is about protecting the, um, individual's control over a really important health issue. Uh, and you're protecting, uh, bad health outcomes here when you provide people with the protection around this particular activity, genetic testing, um, that they need, and that parliament identified as, as, as being, uh, the need. Um, and so his view was actually quite narrow. Justice Kasirer also, I think, took a narrow view and just said, well, look at the end of the day, what is this? What is the activity, or who are the folks and what activities are being, um, targeted by this? And it's the insurance companies and employers, right? We don't want insurance companies or employers making a condition of any good or service that they provide, um, genetic testing or providing results, you know? And so, um, you're, you're right, like discrimination, as you can see is not really in any of that discussion<laugh> in any of that summary of the various analyses that were done on the pith and substance, despite the fact that, um, it does seem like some downstream concern exists for discrimination. Um, albeit maybe as a consequence of these various, um, these various more immediate concerns, um, that the, the judges have identified.
Kate Robertson:Right. Yeah. And to my mind, I mean, it, it struck me as, um, as a, like, as a, if I were to put on a prosecutor hat, I, I would tend not to want to pick up a brief to prosecute, um, mens rea relating to discriminatory acts. I, I think it would be, uh, potentially much easier to prosecute, um, problematic behaviors in this area, just over the exchange of information. I mean, that the idea that we could could criminalize the act of discrimination is, is quite thorny for sure. Um, the other, the other, um, interesting divergence in the way that the judges, uh, dealt with this case, um, that, that I found interesting was how, uh, they took differing approaches to defining what is a valid criminal law purpose. Um, and, and I think in the discussion, um, Mike, you might agree that there, there seemed to be this really strong magnetic pull in the way that the submissions unfolded in the, the questions that were coming from court towards engaging with this really existential question about what what's the proper role of, uh, the criminal law power as an, as an instrument of public policy, which is, uh, tends to be aligned. Courts are less than interested in, in walking, um, just given, given the difference, um, in, in their, uh, constitutional role as compared to parliamentarians, no doubt. Um, but in, in, in watching the hearing, it was clear that this was, um, something that, that they wound up needing to engage with. And, and, um, that's, that's partly because of what the, the, this court, as it's presently constituted inherited in terms of the past jurisprudence and, and without getting into the specifics too much. Um, it, it seemed clear to me that one of the central challenges in deciding the reference was how to follow an earlier reference from 2010 about the Assisted Human Reproduction Act. And, and, and, um, that, that reference also resulted in, uh, a split court, three sets of reasons again. And so, um, in, in, in rare fashion, the judges in this case were quite interested it seemed in, in the hearing about hearing even submissions from counsel, how to interpret that ruling and apply it, um, because no clear test emanates from it. Um, and so on a basic level, as you said, Michael, the judges agreed on what is the formal test that we all learned in, in law school about, um, analyzing the validity of a criminal law power. Um, it's common ground. It can be an evil or, or any kind of injurious or undesirable effect on the public that parliament is trying to prevent. Um, there are very different approaches to assessing how serious or evil that harm must be in order to justify the exercise of, of that, uh, power and, and, and the court also split on how much latitude parliament should have in defining whether an apprehended risk of harm exists and should be acted upon. Um, it, it was interesting to here and, and read and the reasons of Justice Kasirer that, um, he, he, he proposed in his ruling a, a three part test that included, um, a requiring a, a well defined threat of a, a public harm that falls under the, the traditional heads of, of, uh, criminal law related harm and an evidentiary record and supportive and apprehended threat that, um, in, in, in their view and ultimately what became the minority that wasn't made out on the record here. Um, and ultimately the, in, in that effect, um, the legislation is still on the books today because, uh, Justice Moldaver and, and, uh, Justice Côté joining him, concluded that without deciding the issue, um, this particular legislation is valid under either formulation of the test. Um, Justice Karakatsanis had, had focused more so on, um, giving an ambit to parliament to be able to respond to emerging threats, um, that, that we might not be able to see the full contours of those threats yet. And so, so that was a really interesting tention, um, to, to, to my mind. And I, and I think it, it, it leaves us with, uh, no, no threshold test, um, still that, um, we can predict will be applied because of, um, what what's now two split court decisions on this type of issue. And if we have a further reference with similar types of issues in the future, it may actually become that much more thorny to apply both the both references from 2010 and this year to future legislation.
Michael Bookman:Yeah. I mean, it's a great point. The criminal law purpose analysis, uh, was, was the thorniest it seems here. And, um, that shouldn't, I guess, surprise us in certain respects, there was a penalty and a prohibition. So those sort of parts of criminal law, um, those two indicia of criminal law were present. It was really, is this a valid criminal law purpose? And, you know, the you're right. So the, the reference about assisted human reproduction back in 2010, didn't really decide how the court should view, um, a reasoned or a reasonable apprehension of harm. What is the threshold that parliament has to show, uh, in order to pass muster on, on that criminal law is in fact directed at some kind of injurious act, as you say, or, or in, from the margin reference, some kind of evil, um, and in this case, um, you know, I think you're right, Justice Moldaver and Justice Côté say well, under the, the Justice, the Chief Justice McLachlin, sort of you of the world, which is parliament doesn't have to show much more than sort of a de minimis reasonable apprehension of harm and the Justice Labelle, uh, Justice Deschamps view, which is you have to show a real apprehension of harm, uh, or some real evil, some, some real problem that parliament's directing its legislative authority at. Um, you know, that seem to be sort of reproduces itself here without, as you say, much in the way of, um, any resolution you have on the one side Justice Karakatsanis sort of representing the Chief Justice McLachlin view of the world. And then you have Justice Kasirer representing the Justice Labelle and Justice Deschamps views of the world and, and Justice Moldaver and, and Justice Moldaver and Côté saying, well, at the end of the day, we're not gonna decide which of those two approaches is the right way for establishing a valid criminal law purpose. They under that under either test the evidence that we've seen from the parliamentary debates and the, and the parliamentary sub, uh, committee hearings, and the testimony from, from experts is sufficient to, to meet that, that threshold. So I, I think the long story there is that we don't really have a, a resolution to the problem of what is a sufficient amount of, uh, harm to show parliament has to show in order to, to hurdle the, the criminal law purpose part of establishing its legislative authority.
Kate Robertson:Mm-hmm<affirmative>. Yeah, no, I think that that's the right way to look at it. And, and, and also, I, I think I would add that what was interesting to me, particularly in my, my work as a, a criminalist is that really every judge of on the court, no matter which set of reasons you read, it really is engaging with this question of, uh, a concept of criminal law that's too broad. Um, and, and it would be, uh, interesting to my mind to look at what criminal offenses are already on the books and how they hold up in contrast with the tests that's proposed by Justice Kasirer. Um, and, and I, and I think that you still see that engagement from Justice Karakatsanis and, and her joining colleagues, because, um, they were, uh, very expressed in their ruling to note, uh, at a few places that, um, there's still the Charter. And, um, just because a, an offense may survive a division of powers analysis doesn't necessarily mean it will survive a section seven challenge for being over broad or arbitrary or overly disproportionate. And so I, I tend to think that the, the, at her reasons maybe understood in that context is saying, well, uh, no doubt, there, there, there can be essentially ridiculous offenses that no one would in a free society suggest should be on the books. They're just, um, a bit too, too silly and not reasonably justified, but, but we have the charter for that too. We don't have to all of this work under division of powers.
Michael Bookman:So, so in in fact there's a kind of two step analysis, or at least two locations for interrogating, um, criminal law from a constitutional standpoint, one being whether or not it was validly enacted as, um, a function of the division of powers and two, whether under section seven of the Charter or some other, um, in some other location, whether or not it passes muster as, um, a, a, a constitutional exercise. Well, I suppose, a criminal law, um, provision that should be enforceable.
Kate Robertson:Mm-hmm<affirmative> right. Yeah. Yeah. I agree.
Cynthia Spry:Great. Well, unfortunately we are running a bit short of time, so we're probably going to have to call it a day there, but thanks to you both so much for joining me to discuss the Genetics Reference, um, for our listeners that was Kate Robertson and Michael Bookman talking about the Genetics Reference at the Supreme Court of Canada. Thanks to you both.
Michael Bookman:Thank you.
Kate Robertson:Thanks for having us.
Speaker 3:Thank you again to Cynthia and her guests, Michael and Kate for joining us on this episode of Friends Who Argue. Thank you to my co-editors Chris Horkins and Web Haile and to our production leads Ian Breneman, Natalia Rodriguez, Jean-Simon Schoenholz, Matthew Huys and Laura Gurr. Thank you to The Advocates' Society for providing us with this platform. And thank you to Danielle Baglivo of Dentons for providing us with editorial support.
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