Reference re Genetic Non-Discrimination Act

Laying down of rules under Genetic Non-Discrimination Act making certain acts to be offences are within the powers of the Parliament and hence constitutional.

By conducting a genetic test on a person’s body, the personal information of genetic material can be found out. Such personal information relates to the identification of a disease that a person has developed which might get passed on to their children. The Genetic Non- Discrimination Act passed by the Parliament sets rules for conducting such genetic testing specifically related to diseases. Under the Act, no person can be forced to sign a contract for genetic testing, or be compelled to get the test done, or to share the results and if done, it is considered as a crime. Offences under the Act includes the collection, usage, or sharing of results without the permission of that person. If any person violates these rules, then he needs to pay up to $1 million as a fine or imprisonment up to five years or both. Under the Constitution of Canada, the provinces have different powers to that of the federal government. The Government of Quebec approached the Court of Appeal with the plea that the rules under the said legislation were unconstitutional as the Parliament had no powers to make the rules. The Attorney General of Quebec contended their unconstitutionally on the basis that the Parliament can make rules only for the promotion of health and contracts related to insurance and employment, making rules for criminal law is out of the purview of the Parliament. The Attorney General of Canada agreed that the rules were unconstitutional. To ensure that another side of the argument is heard, an “amicus curiae” (Friend of the court) was appointed by the Court of Appeal who stated that the rules were constitutional as they are meant to prevent morally wrong outcomes. It fell under the power of the Parliament to make rules for criminal law. While the case was heard by the Court of Appeal, the Canadian Coalition became “intervener” (people or groups having the permission of the court to give their standpoint) for Genetic testing Fairness. The Coalition gave the stance that the Parliament had the power to make rules of criminal law to protect people’s privacy and health by ensuring equality. However, the Court of Appeal and both the Attorney Generals still maintained that the rules were unconstitutional.

Thereafter, the Coalition made an appeal to the Supreme Court for the decision given by the Court of Appeal wherein the rules were agreed to be constitutional by five of the judges. It was agreed by them that the power is vested with the Parliament to make the rules. Rules made for Genetic Testing comprised of punishments to prohibit and prevent the harms which defined them to be a part of criminal law. The Supreme Court dealt with this case as a provincial reference appeal to the Quebec Court of Appeal by the Quebec Government seeking the opinions of the court to the questions asked by the government.