Supreme Court Upholds Federal Powers to Combat Genetic Discrimination


Unresolved Fault Lines Appear on the Normative Scope of Criminal Law Powers

By Nicholas Buhite

On July 10th, 2020, the Supreme Court of Canada released its judgment in Reference re Genetic Non-Discrimination Act (2020 SCC 17), a reference case coming out of the Quebec Court of Appeal. At issue was whether Parliament had constitutional jurisdiction under criminal law powers provided in s. 91(27) of the Constitution Act, 1867, or whether the law fell solely within provincial competence over property and civil rights under s. 92(13). In a five-four decision, the Supreme Court of Canada overturned the ruling made by the Quebec Court of Appeal and held that the law was within Parliament’s jurisdiction under its criminal law powers.

Justice Karakatsanis wrote for the plurality, joined by Justices Abella and Martin. Justice Moldaver, joined by Justice Côté, wrote a separate concurring opinion. Justice Kasirer, joined by Chief Justice Wagner and Justices Brown and Rowe, wrote in dissent.


In 2017, Parliament passed the Genetic Non-Discrimination Act on a free vote without government support. Among other things, the Act made it an offence punishable by indictment or summary conviction for anyone offering goods, contracts, or services to compel any person to undergo genetic testing or disclose its results. In the same vein, withholding goods, services, or contracts for refusing to undergo such testing was also prohibited, as was collecting, utilizing, or disclosing genetic testing information without a person’s written consent. The Act also established exceptions to these rules for certain medical and research purposes.

Following the passage of the Act, the Attorney General of Quebec, joined by the Attorney General of Canada, presented a reference question to the Quebec Court of Appeal submitting that ss. 1 – 7 of the Act were ultra vires.  They contended that the act fell solely within provincial property and civil rights powers set out under s. 92(13) of the Constitution Act, 1867 and not under federal criminal law powers set out in s. 91(27).

To assess this division of power argument, a court must establish what the “pith and substance” (R v Morgentaler [1993]), also called the “dominant purpose” (Reference re Assisted Human Reproduction Act) or “true subject matter” (Reference re Pan-Canadian Securities Regulation) of the impugned provision is and determine whether that subject matter falls within the scope of a matter under federal authority. In defining the “dominant purpose” of the impugned provision, a court must look to its purpose and effects (both legal and practical) (Firearms Reference). To fall under criminal law powers, the pith and substance of the impugned provision must 1. consist of a prohibition; 2. be accompanied by a penalty; and 3. be supported by a criminal law purpose. In this case, whether there is a valid criminal law purpose to the provision was the primary issue for the Court.

In 2018, the Quebec Court of Appeal concluded that the Act did not fall within federal competence. It held that, in pith and substance, the law was meant to promote public health by encouraging the use of genetic testing by assuaging fear that the results may be used against someone. It also held that the impugned provision did not, in pith and substance, prohibit or address discrimination (Para 12). In its determination that this goal was not a valid criminal law purpose, the Court of Appeal distinguished the goal of promoting public health from defending public health against “intrinsic threats” such as drugs and tobacco. Instead the court held that the law regulated information available for employment and insurance purposes, and fell within provincial competence over property and civil rights (Para 13)

The Canadian Coalition for Genetic Fairness, acting as amicus curiae, appealed to the Supreme Court of Canada.

Karakatsanis, Abella and Martin (Plurality)

Justice Karakatsanis’ plurality opinion differed significantly from the Court of Appeal on the proper characterization of the pith and substance of the impugned provisions.

In determining the provisions’ purpose she rejected the idea presented by the Court of Appeal and other justices on the Supreme Court that the dominant purpose of the Act was to increase the public’s willingness to undergo genetic testing, and took a broader view that the law was meant to prevent discrimination and address Canadians’ fears that their genetic test results could be used against them. This difference in description was based primarily on a broader interpretation of the Parliamentary record and a willingness to examine the purpose of the provisions in the general context of the Act. In examining effects, she held that the practical effect of the impugned provisions was to give individuals control of their genetic testing data in a broad and general sense. By adopting a broad and general interpretation of the law’s effects, J. Karakatsanis also rejected the position, presented in J. Kasirer’s dissent, that the provisions served mainly to regulate insurance contracts.

In classifying what head of power this overarching purpose would fall under, the plurality held that it falls under criminal law powers to protect against threats to autonomy, privacy, equality and public health. Justice Karakatsanis also held that Parliament, by seeking to supress what it considered to be the moral wrong of potential genetic discrimination, acted under well-established criminal law powers to combat such wrongs (Margarine Reference). She also noted that Parliament’s choice to target precursors to discrimination rather than the discrimination itself, does not limit their criminal law powers over the matter (RJR-MacDonald).

In discussing the scope of Parliament’s criminal law authority over public health, the plurality held that “…[P]arliament is entitled to use its criminal law powers to respond to a reasoned apprehension of harm, including a threat to public health” (Para 96) and “no degree of seriousness of harm need be proved before it can make criminal law” (Para 79).  Justice Karakatsanis held that such a reasoned apprehension of harm existed in this case and rejected the idea that Parliament’s criminal law powers could be effectively limited by a notion of “evils” or moral threats. Justice Kasirer, in his dissent, would have derived a more strenuous “real threat of harm” standard from the criminal jurisprudence’s past references to “evils.”

Moldaver and Côté (Concurrence)

While Justice Moldaver wrote in agreement with the result of the case, his characterization of the dominant purpose of the provisions represents something of a middle ground between J. Karakatsanis’ position and that of the Court of Appeal.

While he recognized that preventing or decreasing the likelihood of discrimination was an important facet of the provision, he held that it was not the dominant purpose. Instead, he looked to the health-centred definition that the Act gives to genetic testing, and to his own view of the Parliamentary record, and found that the dominant purpose of the Act was to protect public health against the threat that people would forego genetic testing out of fear that they would not have control over the test results.

In assessing whether Parliament’s criminal law authority applied to this alleged threat to public health, J. Moldaver declined to take a side between a “reasoned apprehension of harm” or a “real threat” standard, but stated that he would have found that Parliament was justified under either framework. In his view, the threat of detrimental health effects due to people foregoing genetic testing was real and well-defined, and the indirect methods used to tackle it were analogous to the federal powers exercised against tobacco advertising in RJR-Macdonald.

Kasirer, Wagner C.J., Brown and Rowe (Dissent)

Justice Kasirer rejected J. Karakatsanis and J. Moldaver’s characterizations of the pith and substance of the provisions, instead following the Court of Appeal’s approach.

He rejected the proposition that the impugned provisions of the Act were meant to combat genetic discrimination based on the idea the text did not prohibit it outright. Instead he argued that the sole dominant purpose of the Act was to promote usage of genetic testing and that goals of protecting individuals’ control over their data or making discrimination harder were solely ancillary to that purpose. In evaluating the effects of the provisions, he placed significant weight on the impacts they would have on the insurance industry, identifying the dominant purpose of the provisions as “removing the fear that information from genetic tests could serve discriminatory purposes in the provision of goods and services, in particular in insurance contracts, in order to encourage Canadians to avail themselves of those tests ” (Para 221).

In applying this characterization to criminal law powers, J. Kasirer argues that a mere deleterious effect on the public good is insufficient to capture the attention of criminal law. Instead, J. Kasirer argues that impugned legislation should 1. relate to a public purpose, 2. respond to a well-defined threat to be suppressed or prevented, and 3. relate to a threat that is “real” in that Parliament had a concrete basis and reasoned apprehension of harm when enacting the impugned legislation (Para 234).

Based on this standard, J. Kasirer went on to conclude that the threat to health, or privacy and autonomy, were not sufficiently well-defined and that there was no evidentiary basis to conclude that such a threat, even if better defined, presented a real threat of harm. He also rejected J. Moldaver’s position on harm arising from undetected diseases by stating that combatting such a harm was only a secondary effect of Parliament’s effort to promote genetic testing.

As such, J. Kasirer concluded that the provisions did not fall within federal powers over criminal law, but under provincial powers over property and civil rights.


By upholding federal jurisdiction over genetic testing, the Court has significantly expanded privacy protections for individuals undergoing such procedures. Nevertheless, the Court missed an opportunity to find majority support for a clear demarcation of the nature of threats that Parliament may respond to under criminal law powers. This failure to establish a predictable standard will likely lead to continuing uncertainty in federalist jurisprudence.

Nicholas Buhite is a 2L JD Candidate at the Faculty of Law. 

Asper Centre ED joins forces with child rights advocates to call for the safety of Canadian children deprived of their liberty during COVID-19

On May 6th 2020, a group of child rights organizations, lawyers and advocates from across Canada, including Asper Centre ED Cheryl Milne, joined forces to advocate for the rights of children in detention during the Covid-19 pandemic.

The group addressed their concerns in an open letter to the Minister of Justice and Attorney General of Canada. Their letter urges Canada to do its utmost during the COVID-19 pandemic to protect the rights, health, and well-being of young people who interact with the justice system.

The organizations and advocates based many of their recommendations on the Alliance for Child Protection in Humanitarian Action’s recently published Technical Note on COVID-19 and Children Deprived of their Liberty, which provides detaining authorities with key information and steps to respond to COVID-19.

The group is calling on government to pursue all efforts to divert youth from institutions during the pandemic and to actively seek the release and reintegration of youth who are currently detained, whenever possible. Further, they are urging for greater transparency about the health and well-being of young people in the justice system and the necessary oversight, as advocates and organizations have not been able to enter institutions to check in on youth and the conditions of their detention during this time.

Ms. Milne co-wrote the letter with Rowena Pinto (UNICEF Canada), Rachel Gouin (Child Welfare League of Canada), Shawn Bayes (Elizabeth Fry Society of Greater Vancouver), Mary Birdsell (Justice for Children and Youth), Heather Sago (Murray McKinnon Foundation) and Senator Kim Pate. Ms. Milne is the past Chair of the Canadian Coalition for the Rights of Children and Justice for Children and Youth.

Ontario Court of Appeal Rules G20 Protester’s Rights Violated by Police


Ten years after Toronto hosted the G20 summit, a civil suit launched against the Toronto police has finally been resolved by the Ontario Court of Appeal. The decision—Stewart v. Toronto (Police Services Board)—represents a strong affirmation of the constitutional right to protest, especially in public spaces like parks.

The case arose out of the G20 summit held in Toronto in 2010. A group of activists had organized a public rally in Allan Gardens, a public park in downtown Toronto. Based on vague reports of potential violence by “Black Bloc” protesters, the police set up an indiscriminate perimeter around the park the day before the rally and required all those wishing to participate in the protest to submit to a search of their personal belongings. The police also seized items that they believed could be used to defeat the effects of tear gas and pepper spray, such as goggles, bandanas, and vinegar.

The police stopped the appellant, Luke Stewart, and told him they were searching all protesters under the authority of the Trespass to Property Act. Mr. Stewart refused to consent to the search, believing it to be unconstitutional. When he attempted to move past the police perimeter, he was forcibly detained. The police then searched his bag and confiscated a pair of swimming goggles.

Mr. Stewart brought a lawsuit against the police in 2011, seeking Charter damages for violation of his freedom of expression, right not to be arbitrarily detained, and right to be secure against unreasonable search or seizure. The Superior Court dismissed his claim in 2018, ruling that the police had the requisite search powers and did not infringe any of his constitutional rights.

The Canadian Civil Liberties Association (CCLA) intervened in this case at both the trial level and at the appeal, arguing for limits on the power of police to interfere with the rights of protesters.

Winston Gee headshot

Winston Gee

Winston Gee, an associate at Torys LLP and former Asper Centre Clinic student, presented the CCLA’s submissions at the hearing of the appeal.

In reasons written by Justice Brown, the Court of Appeal agreed with the CCLA that the police had no legal authority for their actions. It overturned each of the trial judge’s rulings and awarded Mr. Stewart $500 in Charter damages. The Court also affirmed the fundamental importance of free political expression, especially in public parks:

“Our civil liberties tradition recognizes that public parks, such as Allan Gardens, are civic spaces naturally compatible with the public expression of views, whether the content of those views support or dissent from the popular sentiments of the day… The freedom to engage in the peaceful public expression of political views is central to our conception of a free and democratic society. Freedom of expression requires zealous protection.”

Despite the low damages award, Gee was pleased that “the Court accepted one of our central submissions at the hearing—that the Trespass to Property Act does not create any substantive property rights but is merely a mechanism to enforce existing rights that come from other sources, such as the common law.” As a result, the Act could not be used by the police to impose “conditions of entry” of their choosing. That power properly belonged to the City as the common law owner and occupier of the park—and it is subject always to the Charter.

Gee said that his work on this case “benefitted immensely from my time at the Asper Centre. That’s where I first gained experience with appellate advocacy, including by learning from leading constitutional litigators like Mary Eberts and Marlys Edwardh. I also had the opportunity to assist with the Asper Centre’s intervention in Henry v. British Columbia (Attorney General), one of the Supreme Court’s leading cases on Charter damages. That experience was particularly relevant to this case.”

Gee also thanked his colleagues at Torys for providing excellent mentorship and for giving him the opportunity to argue such an important case.

by T. Schreier, with Winston Gee (JD/MPP UTLaw 2017)

Constitutional Litigator-in-Residence for 2020

Nader Hasan has been selected as the Asper Centre Constitutional-Litigator-in-Residence for Fall 2020.

Nader’s wealth of constitutional litigation experience in areas ranging from search and seizure law to digital privacy law to protecting civil liberties, as well as his vast teaching experience will greatly enrich the Asper Centre’s Clinic students next term.

Nader is a partner at Stockwood Barristers in Toronto. He practises criminal, regulatory and constitutional law at the trial and appellate levels. He has an expertise in digital privacy law and search and seizure law, and has appeared in many of the leading cases in this area.

Nader has been recognized by Best Lawyers magazine as one of Canada’s leading appellate lawyers.  He has appeared in 20 cases at the Supreme Court of Canada, including as lead counsel to the successful appellants in Clyde River v. Petroleum Geo‑Services Inc., 2017 SCC 40, a landmark Indigenous rights decision.

Nader is a veteran Adjunct Professor of law at the University of Toronto, Faculty of Law, where he has taught the Law of Evidence and currently teaches a popular class on crime and punishment. He also serves on the Advisory Board of the David Asper Centre for Constitutional Rights. He is a co-author of Sentencing, 9th edition (LexisNexis, 2017), a co-author and co-editor of Digital Privacy: Criminal, Civil and Regulatory Litigation (LexisNexis, 2018), a co-author of a forthcoming book on Search and Seizure (Emond Publishing), and author of numerous articles on criminal and constitutional law.

Nader brings a cross-border perspective to his practice. He previously practised with a leading litigation firm in New York, appearing in both New York State and U.S. federal courts.  Today, he regularly advises Canadian citizens in relation to criminal and regulatory issues with a multi-jurisdictional dimension, and regularly advises Canadians detained abroad.

Nader acts regularly for clients seeking to vindicate their constitutional rights in high-profile cases.  He has acted for the wrongfully convicted and asylum seekers.  He acts for Indigenous groups and environmental NGOs in environmental and constitutional cases.  He also acts for civil liberties groups, including the Criminal Lawyers’ Association (CLA), the British Columbia Civil Liberties Association (BCCLA), and the David Asper Centre for Constitutional Rights.

Nader is a graduate of Harvard University (B.A.), the University of Cambridge (M.Phil), and the University of Toronto, Faculty of Law (J.D.).  Upon graduation from law school, Nader clerked for the Honourable Marshall Rothstein of the Supreme Court of Canada.

View the Asper Centre’s past Constitutional Litigators-in-Residence HERE.

What Does Vavilov Mean for Constitutional Issues in Administrative Law?

by Cheryl Milne

It seems like a lifetime ago that I last attended an in-person legal conference. It was only March 9th, and while the specter of COVID-19 was present (there were hand sanitizer dispensers at the elevator banks and we all used them), social distancing was not yet a phrase on everyone’s tongue as we sat shoulder to shoulder in the downtown conference facility. The conference hosted by Osgoode Hall Law School was a day-long examination of the Supreme Court of Canada’s long-awaited administrative law decision, Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65. I was asked to discuss its implications for constitutional issues.

The short answer is that the decision poses more questions than answers. The long version is what I think can be covered in a blog post rather than an academic paper. Hence, my attempt, from the relatively safe confines of my kitchen, to summarize what I said on March 9th and what I have thought about it since. I should add that I was joined on this two-person panel by Senwung Luk of OKT LLP, who addressed the implications for the duty to consult and accommodate, and whose succinct answer to that question was, “utter chaos.”

For those of you who were not hanging on the edge of your seats for the duration of 2019 awaiting the Court’s pronouncement on the standard of review in administrative law, the appeal involved the judicial review of the decision of the Registrar of Citizenship to cancel the Canadian citizenship of the Canadian-born son of parents later revealed to be Russian spies – their story served as inspiration for the television series, The Americans. That got some of your attention!

I don’t propose to analyze the Court’s overall approach to the administrative law questions and the standard of review here. For a more comprehensive treatment, I suggest Paul Daly’s blog Administrative Law Matters which links to his longer paper posted on SSRN. My task was to discuss the constitutional issues that the majority purported not to address.

In refusing to comment on its earlier administrative law decision in Doré v Barreau du Québec, 2012 SCC 12, the Court leaves open many questions. Doré established that the standard of review of an administrative decision that impacted Charter rights was reasonableness, rather than the application of the Oakes test under s. 1 of the Charter, but in keeping with the general theme of proportionality under s.1, the decision needed to be a proportional balancing of the Charter right with the governing statutory objective. This approach was reiterated in Loyola High School v. Quebec (Attorney General), 2015 SCC 12 and the Trinity Western decisions (referenced below). It remains controversial, with critics claiming that it fails to respect the primary or priority of Charter rights[1] and fails to place the onus on government for justifying a limitation on rights as is required under s. 1 of the Charter.[2]

The majority states clearly that “constitutional matters require a final and determinate answer from the courts” (para.55), thus attracting the correctness standard of review. But that applies only to constitutional questions, such as a challenge to the constitutional validity of legislation. The majority of the Court goes on to state,

However, it is important to draw a distinction between cases in which it is alleged that the effect of the administrative decision being reviewed is to unjustifiably limit rights under the Canadian Charter of Rights and Freedoms (as was the case in Doré) and those in which the issue on review is whether a provision of the decision maker’s enabling statute violates the Charter… [para. 57]




So, you might ask what is so unclear about that? The reasonableness standard continues to apply to the Doré set of cases, while challenges to statutes require the standard of correctness. But the Court interchanges constitutional questions with the term constitutional matters, which include federalism issues and treaty rights, and glosses over any confusion that could arise over what could fit within that category. For example, the Ontario Courts of Justice Act defines a constitutional question as one that invokes the constitutional validity or applicability of a statutory provision as well as a claim for a constitutional remedy under s.24(1) of the Charter. Does this mean that the standard of correctness applies to a claim for a constitutional remedy based on government action as opposed to the validity of a statute, as anticipated by R v Conway, 2010 SCC 22?

To illustrate the Court’s inconsistency on this issue alone, one need only look to the case of Ernst v Alberta Energy Regulators, 2017 SCC 1, admittedly not a judicial review, but a case that provides confusing analysis about what constitutes a constitutional question. The plaintiff was seeking Charter damages against the administrative body for allegedly infringing her Charter right to freedom of expression. The regulator raised the statutory provision that barred claims against it to seek a dismissal of the proceedings, while Ernst argued that the provision could not be interpreted so as to prevent a Charter claim. A minority of the Court agreed with the regulator’s interpretation that the legislation barred a damages claim, suggesting the Ernst ought to have sought a judicial review instead. Their ruling dismissing the appeal became the majority decision when Justice Abella reasoned that the claim should be dismissed because the plaintiff failed to file a Notice of Constitutional Question to have the provision declared unconstitutional. If that sounds confusing to you, you are not alone.

A further constitutional matter that could also fall within the category of general questions of law of central importance to the legal system as a whole, which is another category requiring the correctness standard of review, is the consistent interpretation of a Charter right itself. As McLachlin, C.J. (as she then was) noted in her concurring reasons in Law Society of British Columbia v Trinity Western University, 2018 SCC 32, possibly conflating reasonableness and correctness in this context,

…[T]he scope of the guarantee of the Charter right must be given a consistent interpretation regardless of the state actor, and it is the task of the courts on judicial review of a decision to ensure this. A decision based on an erroneous interpretation of a Charter right will be unreasonable. Canadians should not have to fear that their rights will be given different levels of protection depending on how the state has chosen to delegate and wield its power. [para. 116]





In stating that it was not revisiting Doré, the majority said that “reconsideration of [its approach to the standard of review of reasonableness was] not germaine to the issues in this appeal” [para.57]. To properly examine this statement, one needs to dip one’s toe into the majority’s revised reasonableness framework. In asserting that the role of the reviewing court is to review and not to decide the issues themselves, the majority states that the review does not entail an “attempt to ascertain the ‘range’ of possible conclusions that would have been open to the decision maker” [para.83]. This specifically contradicts the language of Doré [para. 56] in respect of the proportionality analysis and the approach to judicial review generally enunciated in Dunsmuir v. New Brunswick, 2008 SCC 9 [para. 47]. The Court reiterated this pre-Vavilov approach in Trinity Western University v Law Society of Upper Canada, 2018 SCC 33, where Justice Abella stated for the majority,

The reviewing court must consider whether there were other reasonable possibilities that would give effect to Charter protections more fully in light of the objectives, always asking whether the decision falls within a range of reasonable outcomes [Doré, at para.57; Loyala, at para. 41, citing RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199, at para. 160). [para. 36]




It is difficult to ascertain whether a given decision that is required to balance Charter rights against legislative purpose is proportional without asking whether the decision falls within a range of reasonable outcomes. While the section 1 Oakes test is not applicable, the imperative of minimally impairing a Charter right is central to the proportionality analysis.

Another aspect of the decision that raises questions about the approach to expect in future cases is the Court’s treatment of context. The contextual approach to determining the standard of review has been clearly rejected. Reasonableness, even where Charter rights are implicated (other than a constitutional question), is the presumptive standard. However, context still plays a role in the way that a robust reasonableness review is conducted.

The majority states, “what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review” [para. 90]. However, it is also important to note that the majority in Trinity Western also stated that in the Charter context reasonableness and proportionality are synonymous, suggesting, perhaps, a different approach to the standard of reasonableness given that one could argue that proportionality requires a particular approach when assessing the impact on Charter protected rights.

While we appear to be stuck with Doré for the foreseeable future, that may not be a bad thing in light of the Court’s deferential approach to reasonableness in Vavilov. However, questions still remain under that approach as to who bears the onus for demonstrating the reasonableness of a decision, with the Courts generally requiring those challenging the decision to meet that onus. This leaves the individual alleging the breach of their Charter rights with the burden, unlike the onus on government under the Oakes test.

So, my short summary was that there are more questions than answers in respect of the implications of Vavilov for constitutional issues. Those questions for me include: What is a constitutional question? Does the interpretation of the Charter right invoke the standard of correctness or is an incorrect interpretation unreasonable? How will the context of a Charter claim alter the reasonableness standard, or will it? How will the proportionality analysis be conducted if the reviewer is not to examine alternative outcomes that could have been available? And, does the requirement of justification and the focus on reasons address any of the issues pertaining to onus that have been the subject of the criticism of Doré?

Cheryl Milne is the Executive Director of the David Asper Centre for Constitutional Rights

[1] Macklin, Audrey, Charter Right or Charter Lite? Administrative Discretion and the Charter (October 9, 2014). Supreme Court Law Review, Vol 67, 2014. Available at SSRN:

[2] Liston, Mary, Administering the Charter, Proportioning Justice: Thirty-five Years of Development in a Nutshell Canadian Journal of Administrative Law & Practice; Toronto Vol. 30, Iss. 2, (Jun 2017): 211-246.