Quebec Court of Appeal declares federal law prohibiting genetic discrimination unconstitutional

By Alain Thériault | January 15 2019 01:30PM

The Quebec Court of Appeal recently rendered a judgment invalidating several articles of the federal Genetic Non-Discrimination Act, adopted in May 2017.

The decision of the Court of Appeal could make it legal, in life insurance, to use genetic tests to assess risks, says a newsletter from the law firm Charbonneau, avocats conseils.

The Court of Appeal rendered this decision on the grounds that the Government of Canada did not have jurisdiction to legislate on this subject, says the law firm.

"It would then come under the power of the provincial legislatures to decide on the issue of discrimination based on genetics," says Charbonneau, avocats conseils.

Shortly after the adoption of the Act, the Quebec government announced its intention to refer the matter to the Quebec Court of Appeal. CLHIA-Quebec supported this move.

Question of jurisdiction

In their decision, the judges wrote “the identification of risk assessment factors, as well as the identification of types of information that an insurer may request for this purpose, have always been deemed as falling under exclusive provincial jurisdiction.”

The Court of Appeal also saw in the Act an infringement of the Parliament of Canada in criminal law matters under the Quebec Government’s jurisdiction, notes the law firm. “This context must inform the determination of whether or not to prohibit requiring a person to undergo or to disclose results of a genetic test as a prerequisite to the provision of goods and services or to entering into a contract, notably insurance and employment contacts, for the purposes of promoting the health of Canadians, constitutes a valid exercise of the federal jurisdiction over criminal law,” says the judgement.

The Court rejected the justification that the criminal law invoked in the Act is to provide higher quality health care by promoting access to genetic testing, by alleviating the fear that the results of these tests would be used for insurance or employment purposes. “This is clearly not a criminal law object. The situation is completely distinguishable from the exercise of federal jurisdiction over criminal law regarding tobacco or illicit drugs, which intrinsically present a threat to public health. That is not the case for genetic tests," the judges ruled.

Seven invalidated articles

It is the constitutional validity of sections 1 to 7 of the Act that was the subject of the reference before the Court, explained the law firm. These provisions include the following three prohibitions:

1- requiring an individual to undergo a genetic test as a condition of providing goods or services or of entering into or maintaining a contract or any of its terms (sec. 3);

2- requiring an individual to disclose the results of such a test as a condition of engaging in one of these activities or refusing to engage in these activities because of the refusal to disclose these results (sec. 4); and

3- for any person engaged in these activities in regard to an individual, to collect, use or disclose the results of a genetic test of the individual without that individuals written consent (sec. 5).

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