On March 8, 2017, Bill S-201, An Act to prohibit and prevent genetic discrimination, was passed in the House of Commons (“Bill S-201”).

Background

As previously discussed in our bulletin, Bill S-201 prohibits any person from requiring an individual to take a genetic test or disclose the results of a genetic test as a condition of: providing goods or services; entering into or continuing a contract; or offering specific conditions in a contract with that individual.

Further, Bill S-201 also prohibits insurers from requesting that previous genetic test results be made available to them for the purposes of classifying risk.

Controversial Issues

Members of the health insurance industry were opposed to the prohibition regarding the disclosure of genetic test results in Bill S-201 and for that reason, there was significant debate in the House of Commons on this particular issue.

In fact, both Justice Minister Jody Wilson-Raybould and Prime Minister Trudeau were opposed to Bill S-201, arguing that if passed, Bill S-201 may be unconstitutional as it could infringe on the provinces’ right to regulate the insurance industry.

Status

Despite the opposition and a recommendation from the Prime Minister that MPs vote against it, the Bill was passed in the House of Commons by a vote of 222-60.

Although the Bill was passed, it will have to be sent back to the Senate for final approval. This is because at the Committee Stage (when a bill is studied carefully), the Standing Committee on Justice and Human Rights [1] voted to add a coordinating amendment that aimed at protecting the intent of both Bill S-201 and Bill C-16, the Transgender Rights Bill.

The two bills propose to amend the same section of the Canadian Human Rights Act. This amendment aims to ensure that both genetic discrimination and gender identity would be listed as prohibited grounds for discrimination.

According to MP Rob Oliphant, the House sponsor of Bill S-201, the Senate will consider the amendment but will likely send the bill off to receive Royal Assent without getting into a debate.

Even so, the federal government has stated that they may refer Bill S-201 to the Supreme Court of Canada to determine the constitutionality of the genetic non-discrimination act, i.e. whether the Act violates the separation of powers between the federal and provincial governments. This could therefore delay the enactment of the legislation.