On May 3, 2016, Bill S-201, An Act to prohibit and prevent genetic discrimination, was given its first reading in the House of Commons. Originally introduced and recently passed in the Senate as a private Member’s bill, the latest version of Bill S-201 proposes to make important amendments to federal legislation, specifically, the Canada Labour Code, RSC 1985, c L-2 (the “CLC”)and the Canadian Human Rights Act, RSC 1985, c H-6 (the “CHRA”).

In addition to the amendments to the CLC and the CHRA,the bill also proposes to introduce general prohibitions which will create a series of new offences and punishments for genetic discrimination in contracts and in the provision of goods and services.

Proposed amendments to the Canada Labour Code

Bill S-201 proposes to amend the CLC by adding a new section designed to protect the genetic information of employees of crown corporations and employees employed in works, undertakings or businesses which fall under federal jurisdiction, such as telecommunications, chartered banks, and interprovincial transportation. For example, such employees would have the right to refuse to take a genetic test and to refuse to disclose the results of one. These rights would be reinforced by prohibitions on employers from taking disciplinary action against employees who exercise their rights.

In addition, the amendments would require third parties to obtain a person’s written consent before disclosing to an employer the results of a genetic test, or even the fact that an employee has taken one. Employers also would not be allowed to collect or use the results of a genetic test without the employee’s written consent. A complaint procedure, whereby employees may make a complaint to an inspector, whose role will be to try to assist the employer and employee in settling their dispute, has also been included in the amendments. If no settlement is reached, the complaint may be sent to an adjudicator who will have broad remedial powers to rectify the situation, including the power to “do any other like thing that it is equitable to require the employer to do in order to remedy or counteract any consequences of the contravention”.

Proposed amendments to the Charter of Human Rights Act

The CHRA also applies to matters falling under federal jurisdiction, such as federally regulated employers and providers of goods and services. Bill S-201 would amend the CHRA to include “genetic characteristics” as a prohibited grounds of discrimination alongside “race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered”.

Proposed general prohibitions: contracts and the provision of goods and services

According to the bill as passed by the Senate, inter alia, it will be an offence for a person to require anyone to take a genetic test or reveal the results of one as a condition of:

“(a) providing goods or services to that individual;

(b) entering into or continuing a contract or agreement with that individual; or

(c) offering or continuing specific terms or conditions in a contract or agreement with that individual”.1

If adopted in its current state, the new offences will be reinforced by significant punishments for anyone who practices genetic discrimination in violation of the new law: on summary conviction, a fine of up to $300,000 or “imprisonment for a term not exceeding twelve months”, or both, may be imposed; or, if prosecuted by way of indictment, the fine can be as much as $1,000,000 and the maximum prison term five years, or both.

Constitutional questions

One question looming over Bill S-201 is whether the proposed law is constitutional. In Canada, generally, legislative authority is constitutionally divided between the federal and provincial governments. The federal government has exclusive power to make laws in relation to matters specified as falling within its constitutional jurisdiction, while provincial governments have exclusive legislative authority to make laws falling within their constitutional legislative authority.

Bill S-201 purportedly relies on the federal government’s exclusive power to legislate in the area of criminal law2. The Supreme Court of Canada has held that laws which target and seek to prohibit “public health evils” have a valid criminal law purpose3. Indeed, Bill S-201 does create a series of prohibitions (offences) which may be characterized as prohibiting a practice, genetic discrimination, which could be seen as creating a public health evil, e.g., limiting disease prevention and treatment by discouraging genetic testing.

However, it may also be argued that Bill S-201, in fact, seeks to regulate matters falling under the provincial government’s exclusive constitutional authority, specifically with regards to employment and insurance contracts in the province. During a reading of a similar bill previously introduced in the Senate in 2013, Bill S-218, An Act to prohibit and prevent genetic discrimination, it was said that, “Genetic discrimination usually arises in two contexts: insurability and employment”4. While Bill S-201 has been drafted with these constitutional considerations in mind, for example, unlike its predecessor Bill S-281, Bill S-201 does not make any reference to a specific industry or type of contract5. We expect that, if passed, the new law will likely face a constitutional challenge given the history of the bill and the effects it will likely have on particular industries and contracts.

Conclusion

While Bill S-201 is not currently law, this does not mean that practices which may be characterized as genetic discrimination necessarily escape legal scrutiny. For example, in Quebec, employers must be aware that it is prohibited under Quebec’s Charter of Human Rights and Freedoms, CQLR c C-12 to practice discrimination in an employment context, including at the application and hiring stage, on the basis that a person suffers from a handicap. Courts have broadly interpreted what constitutes a handicap. It is therefore possible that genetic discrimination may already be captured under provincial law.