Teresa Scassa - Blog


On July 10, 2020, the Supreme Court of Canada issued a split decision in a constitutional law case with interesting implications for privacy law. The Quebec government had challenged the constitutionality of Canada’s 2017 Genetic Non-Discrimination Act (the Act), arguing that it fell outside federal jurisdiction over criminal law and intruded upon areas of provincial jurisdiction. It had brought its challenge by way of a reference case to the Quebec Court of Appeal. That Court ruled that the law was unconstitutional, and the decision was appealed to the Supreme Court of Canada.

The hearing before the Supreme Court of Canada was unusual. The appeal was brought, not by the federal Attorney-General, but rather by the Canadian Coalition for Genetic Fairness, a group that had been an intervenor in the Court of Appeal proceedings. Notwithstanding the fact that the validity of a federal law was at issue, the federal Attorney-General sided with the Attorney-General of Quebec in arguing that the law was unconstitutional. This strange situation was due to the origins of the law. It was introduced as a Senate bill, championed by Senator James Cowan. The bill was passed by the Senate and came to the House of Commons. The federal government believed that it was unconstitutional and cabinet did not support it. However, given the nature of the subject matter of the bill, the government allowed a free vote in Parliament. The result was that the bill passed by a vote of 222 in favour and 60 against.

A majority of five Supreme Court of Canada judges, in two separate decisions, ruled that the Act was a valid exercise of Canada’s jurisdiction over criminal law under s. 91(27) of the Constitution Act, 1867. Four dissenting judges were of the opinion that the law was, in “pith and substance” a matter of provincial jurisdiction.

The Act does three things, only one of which was challenged before the Court. In the first place (and most controversially) it makes it an offence for anyone to require an individual to undergo a genetic test or to provide the results of an existing genetic test as a condition of receiving goods or services or of entering into a contract. The law also prohibits anyone from collecting the results of a genetic test taken by a person from a third-party source without that person’s written consent. The non-controversial parts of the bill consisted of amendments to the Canadian Human Rights Act to prohibit genetic discrimination, and amendments to the Canada Labour Code to protect employees against forced genetic testing or requirements to disclose test results. It was accepted that the federal government had jurisdiction to amend these statutes in this way. Thus, the only issue before the court was the constitutional basis for the parts of the Act that dealt with the provision of goods and services and the entering into contracts.

It was no secret that a major concern of the proponents of the Act was that individuals might be compelled to reveal their genetic history, and might be adversely impacted when doing so. The chief areas of concern were in relation to insurance and employment. Insurance contracts and employment outside of the federally regulated sectors, are typically matters within provincial jurisdiction, as is contract law. The issue, therefore, was whether this law, which made it an offence to insist upon genetic testing or to access to the results of genetic tests, was a matter of criminal law, or a pretext for intruding upon provincial jurisdiction.

Justice Karakatsanis, writing for three of the five justices in the majority, found that the ‘pith and substance’ of the Act was “to protect individuals’ control over their detailed personal information disclosed by genetic tests, in the broad areas of contracting and the provision of goods and services, in order to address Canadians’ fears that their genetic test results will be used against them and to prevent discrimination based on that information.” (at para 4). She characterized this as falling under Parliament’s criminal law power because “they respond to a threat of harm to several overlapping public interests traditionally protected by the criminal law” (at para 4) that include “autonomy, privacy, equality and public health” (at para 4).

Justice Moldaver, writing for himself and Justice Côté agreed that the law fell within federal jurisdiction, but differed as to the reasons for this. However, he characterized the ‘pith and substance’ of the law as “prohibiting conduct that undermines individuals’ control over the intimate information revealed by genetic testing.” (at para 111) He found that the Act was an exercise of the criminal law power because it contained “prohibitions accompanied by penalties [. . .] backed by the criminal law purpose of a suppressing a threat to health.” (at para 112)

Justice Kasirer, writing for the dissenting justices characterized the ‘pith and substance’ of the law as “to regulate contracts and the provision of goods and services, in particular contracts of insurance and employment, by prohibiting some perceived misuses of one category of genetic tests, the whole with the view to promoting the health of Canadians.’ (at para 154). As a result, in his view, the matter falls within provincial jurisdiction over property and civil rights under s. 92(13) of the Constitution Act, 1867.

The point of divergence for majority and dissent was with respect to whether the law primarily regulates contracts and the provision of goods and services, or whether it principally imposes penalties for activities that threaten values traditionally protected by the criminal law. The fact that the majority justified the legislation under the federal criminal law power has interesting implications for privacy law in Canada.

First, both sets of reasons for the majority clearly consider that privacy values are appropriate subject matter for criminal legislation. In a way, we knew this already – for example, no one challenges the constitutionality of provisions that criminalize voyeurism. However, voyeurism in the Criminal Code is not just a matter of privacy – there is also an element of sexual exploitation or predation – the control of which is firmly rooted in criminal law. This situation is notably different. What is criminalized (legitimately, from the point of view of the majority) is requiring people to take genetic tests or to disclose the results of such tests, or for someone to seek out this data from a third party in order to use it in relation to contracts, goods or services. This is largely a matter of informational privacy. The difference between the two sets of majority reasons is that two of the five majority justices anchor the informational privacy concerns very specifically in the link between the (mis)use of these tests and the objective of protecting public health. Three of the justices are open to grounding the Act, not just in public health protection, but in the need to protect autonomy, privacy and equality.

On the privacy issues, Justice Karakatsanis begins by noting that “individuals have powerful interests in autonomy and privacy, and in dignity more generally, protected by various Charter guarantees” (at para 82). She also noted that individuals have “a clear and pressing interest in safeguarding information about themselves” (at para 82). According to Justice Karakatsanis, compelling people to undergo genetic testing “poses a clear threat to autonomy and to an individual’s privacy interest in not finding out what their genetic makeup reveals about them and their health prospects.” (at para 85) She notes that some people might not want to know their genetic ‘destiny’. Further, forcing individuals to share this information as a condition of receiving goods or services or entering into a contract compromises “an individual’s control over access to their detailed genetic information” (at para 85).

Justice Karakatsanis also describes genetic information as being at an individual’s “biographical core” of information. This ‘biographical core’ represents that information that is most closely tied to individual identity. She notes that the Act reflects Parliament’s view that “The dignity, autonomy and privacy interests in individuals’ detailed genetic information were understood by Parliament to be unique and strong” (at para 87). She noted as well that genetic testing technology is evolving rapidly, making the volume of information they may reveal about individuals something that “will undoubtedly continue to evolve alongside technological abilities to interpret test results” (at para 88). The sensitivity of the information is matched by the potential for its abuse.

Although Justice Karakatsanis finds that the legislation also serves to protect public health (by removing individual fears of the consequences for them of seeking genetic testing), she rules that it is also within federal jurisdiction because of its “response to the risk of harm that the prohibited conduct and discrimination based on genetic test results pose to autonomy, privacy and equality” (at para 92). For Justice Moldaver, who also supports the constitutionality of the Act, the pith and substance of the legislation lies in Parliament’s goal “to protect health by prohibiting conduct that undermines individuals’ control over the intimate information revealed by genetic testing” (at para 111)[my emphasis]. This is a subtle but important distinction. He grounds constitutionality in the protection of public health; protecting intimate information is simply the means by which the public health goal is achieved. Justice Kasirer, writing for the four dissenting justices was prepared to recognize the Attorney-General of Canada’s concession “that Parliament could enact legislation targeting a threat to privacy and autonomy hat might well constitute a valid criminal law purpose” (at para 251). But recognizing a concession is not necessarily agreeing with it. He notes that in this case, because the pith and substance of the legislation is not to protect privacy or autonomy, but rather to regulate contracts and the provision of goods and services, the matter is moot.

Justice Kasirer, in particular, notes the slippery slope that could result from finding that privacy, dignity and autonomy are freestanding anchors for the federal criminal law power. He notes that “Such a holding would encourage the view that any new technology with implications bearing on public morality might form the basis for the criminal law power, and potentially, bring a wide range of scientific developments within federal jurisdiction on no principled constitutional basis” (at para 253).

Indeed, this is at the heart of what is so interesting from a privacy perspective in this decision. Justice Karakatsanis, writing for herself and two other justices, seems to recognize that the protection of privacy can find an anchor in the criminal law power by virtue of the impact of intrusions of privacy on dignity and autonomy. Justice Moldaver and Justice Côté recognize the informational control dimensions of the genetic testing issue, but anchor the law’s constitutionality squarely in the goal of protecting public health, something long recognized as a matter open to regulation under the criminal law power. Justice Kasirer rejects federal jurisdiction entirely, but is alert to the potential for a focus on privacy, in an era of rapidly emerging technology, to dramatically impact the constitutional balance between federal and provincial governments.

These are interesting times for privacy, digital innovation, and the constitution. It is expected that the federal government will soon introduce a bill to reform the Personal Information Protection and Electronic Documents Act (PIPEDA). The Privacy Commissioner has pressed the government to adopt a ‘privacy as a human rights’ approach in this reform process, but the government has seemed hesitant because of concerns that any emphasis on the human rights dimension of privacy might threaten the law’s fragile constitutional footing under the trade and commerce power. The Supreme Court of Canada in the Reference re Genetic Non-Discrimination suggests that such an approach might not be as constitutionally risky as previously thought, although the risks are evidently there.

The regulation of artificial intelligence (AI) technologies will also be a matter of future legislative concern as they continue to rapidly evolve and impact all aspects of our lives. This case therefore may foreshadow debates about where jurisdiction might lie over possible prohibitions on certain uses of AI, on the automation of certain types of decision-making, or other measures to protect privacy, dignity or autonomy in the face of this new technology. Justice Kasirer is clearly concerned that at least three of his colleagues have opened a door for much wider-ranging federal jurisdiction over technologies that can impact privacy, dignity, and autonomy.

Published in Privacy

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