Fraser v. Canada: What’s the Point of S. 15?

by Jeffrey Wang

On October 16th, 2020, the Supreme Court of Canada released the landmark decision of Fraser v Canada, clarifying how adverse effect discrimination fits into the s. 15 framework. Adverse effect discrimination can be defined as when a facially neutral law has a disproportionate impact on members of a group. This is distinct from direct discrimination where a law makes a facial distinction among groups based on an enumerated or analogous characteristic.

Fraser is a significant development in Charter jurisprudence since the Court has rarely allowed adverse effect discrimination claims. Although the Court has repeatedly proclaimed that s. 15 does cover both types of discrimination and has recognized numerous adverse effect discrimination cases under human rights codes, the SCC has only affirmed one case of adverse effect discrimination under s. 15 prior to Fraser. In Eldridge v British Columbia, the Court found that a hospital that did not provide sign-language interpreters discriminated against people with hearing loss, even though the lack of sign-language interpreters applied neutrally to both hearing and non-hearing individuals.[1] Other adverse effect discrimination cases have come across the Court but have all been rejected for a variety of reasons.

Fraser

The Eldridge case is a stark contrast from Fraser’s complex fact-scenario. In Fraser, three female RCMP officers challenged a policy that reduced pension benefits for officers who took part in a job-sharing program. This job-sharing program was created so that RCMP employees did not have to take unpaid leaves of absence in order to balance childcare responsibilities. However, officers taking such a leave would not see reduced pension benefits unlike those participating in job-sharing. The evidence showed that a vast majority of the participants in the job-sharing program were women that balanced childcare with work. The appellants thus argued that the policy reducing pension benefits for job-sharers discriminated against women.

Writing for the majority of the Court, Abella J agreed with the appellants and clarified the law on adverse effect discrimination. She asserted that adverse effect discrimination claims can fall within the existing s. 15 test. Under step one, claimants must show that a law creates a distinction based on an enumerated or analogous ground. To satisfy this step in adverse effect discrimination claims, Abella J posited that claimants must prove that the impugned law has a disproportionate impact on members of a protected group.[2] She suggested that this can be established “if members of protected groups are denied benefits or forced to take on burdens more frequently than others” and Courts should specifically assess the result of the law and the social situation of the claimant group.[3] Abella J further notes that there is no need to prove that all members of the claimant group are identically affected, that the law is responsible for the social situation of the claimant group, the law’s discriminatory intention, or any element of causation.[4] There is also no “universal measure for what level of statistical disparity is necessary to demonstrate that there is a disproportionate impact.”[5]

In the second step of the s. 15 test, the claimants must prove that the law perpetuates or reinforces disadvantage. Abella J cautioned that under adverse impact discrimination cases, the Court should not assess the objectives of the law at this stage but should rather leave this analysis to s. 1.

Applying this test to the case, Abella J found that the RCMP pension scheme in relation to job-sharers disproportionately impacted women due to their childcare responsibilities and that this perpetuated the economic disadvantage of women. In addition, she found that this law was not justified under s.1 since there was no pressing objective in denying the pension benefits for job-sharers. Therefore, the majority of the Court struck down the law.

Implications for Future Cases

The majority’s decision in Fraser is a welcome development in the fight for substantive equality. Adverse effect discrimination claims have long been recognized in human rights code cases, and the Fraser decision finally brings this uncontroversial understanding of equality into s. 15 jurisprudence with a paradigmatic adverse impact fact-scenario.

However, while the overall conclusion in Fraser undoubtedly moves the law in a positive direction, there are issues with Abella J’s reasoning. In our current heterogenous society, it is likely that most laws have a disproportionate effect on one group of people. For example, many human rights code cases have explored whether the lack of funding for prostate cancer testing is discriminatory against men[6]; whether a municipal policy limiting the number of garbage bags per family picked up by waste disposal discriminates against larger families[7]; and whether the lack of coroner’s inquests for migrant workers’ deaths discriminates on the basis of race[8]. Under the Fraser majority, many of these difficult cases would pass the s. 15 test for adverse effect discrimination. All that is required under step one of the test is a law’s disproportionate impact without proof of intention, causation, or statistical significance and step two merely requires historical disadvantage.

This is the problem with the Fraser decision – it does not precisely define the boundaries of adverse effect discrimination. Under direct discrimination, the requirement that a law creates a distinction based on a protected ground is meaningful, since there are many laws that do not facially distinguish between groups. However, the Fraser majority decision could render this first step of the s. 15 test meaningless by simply allowing evidence of a law’s disproportionate effect which is rife in society. Additionally, with Abella J’s comment that the objectives of the law should not be analyzed under the second step of the s. 15 test, historical advantage would similarly be easy to establish by looking to social science evidence. In effect, the Fraser majority has watered down the s. 15 analysis and pushed the bulk of the legal reasoning to s. 1. But if everything violates s. 15, nothing violates s. 15. This cannot be the state of our equality jurisprudence. S. 15 must include meaningful internal limits that filter out laws that incidentally or reasonably have disproportionate impacts on one group without being discriminatory. Otherwise, what’s the point of s. 15 at all?

Jeffrey Wang is a 3L JD Candidate at the Faculty of Law, and a former Asper Centre Clinic student. 

[1] Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624.

[2] Fraser v Canada (Attorney General), 2020 SCC 28 at para 52 [Fraser].

[3] Fraser at para 55.

[4] Fraser at paras 69-72.

[5] Fraser at para 59.

[6] Armstrong v British Columbia (Ministry of Health), 2010 BCCA 56.

[7] Harrington v Hamilton (City), 2010 HRTO 2395.

[8] Peart v Ontario (Community Safety and Correctional Services), 2014 HRO 611.

 

Overcoming Challenges to Implementing UNDRIP in Canada

By Julia Nowicki

Implementing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in Canadian law will not be without challenges, and will require both hard-work and great care, said Kerry Wilkins at the Asper Centre’s first Constitutional Roundtable for the 2020/2021 academic year. Held virtually on Wednesday, October 28th, 2020, Wilkins, who is an adjunct professor at the University of Toronto Faculty of Law, presented his upcoming journal article–“So You Want to Implement UNDRIP…”–set to be published in the University of British Columbia Law Review in the near future.

UNDRIP was adopted by the United Nations General Assembly in 2007. The resolution outlines within it “the rights of indigenous peoples” and “establishes a universal framework of minimum standards for the survival, dignity and well-being of the indigenous peoples of the world”, according to the UN website. Although initially voting against its adoption, the Canadian government eventually issued a Statement of Support endorsing the principles in UNDRIP and in 2015, announced its full, unqualified support. However, the international resolution is not legally binding in Canada, and requires domestic implementation for the rights and obligations of the State to be realized. In the prior two throne speeches, the Governor General of Canada promised full implementation of UNDRIP, stating in 2020 that “[t]he Government will move forward to introduce legislation to implement the United Nations Declaration on the Rights of Indigenous Peoples before the end of this year.”

Implementation, as alluded to previously, does not come without its challenges, says Wilkins. “[F]irst, Canadian law isn’t especially well designed to welcome enforceable UNDRIP rights and obligations into it. And second, the colonial experience, mainstream law and governance, has done a great deal already to fragment and to disaggregate ancestral Indigenous communities, destabilize their relationships with traditional territories, and suppress and marginalize key features of their cultures.”

However, Wilkins says that the very “impediments to implementation are among the reasons why implementing the United Nations Declaration in Canadian law is so important”, and putting off implementation will in no way help the process. Sections 27, 38, and 40 of UNDRIP assign the process of implementation to the States, according to Wilkins’ paper. Article 38, for example, provides that “States in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration.”

In considering how meaningfully to implement UNDRIP, attention must be drawn to two overarching issues, including what Wilkins refers to as the “what” and the “how” of implementation. These questions refer, respectively, to the substantive and procedural issues that may underlie the process.

The instrument leaves undefined certain key features, including who qualifies as Indigenous peoples, how to distinguish traditional lands or territories, and which practices and features can be subject to cultural protection rights. Wilkins suggests that, if left to their own devices, courts and Parliament may revert to applying the metrics with which they are already familiar. Unfortunately, in doing so, or if left to define key concepts within UNDRIP unilaterally, governments and courts run the risk of trivializing the rights that would otherwise be protected. Non-Indigenous governments, for instance, do not have particular experience in thinking about indigeneity. Bands or First Nations as defined by the Indian Act outline criteria that would be “neither necessary nor sufficient to qualify as an Indigenous peoples for the purposes of UNDRIP”, Wilkins says. In reference to rights related to traditional lands or territories, Courts may be tempted to apply the law of Aboriginal Title, reverting to a process that is not only time consuming but likewise reduces the rights contained in UNDRIP to those already protected under the Canadian Constitution. Similar considerations run true for Aboriginal rights.

Various procedural issues must likewise be taken into consideration, namely, by which vehicle implementation should occur. Wilkins provides in his paper two such avenues, including by way of treaty and by legislation. Both have certain benefits and disadvantages, however the Canadian government as mentioned previously, has promised legislation as a means of implementation. Although legislation may provide for uniformity across the country, it can likewise be tailored to apply to specific groups. However, rights contained within legislation implementing UNDRIP, unlike treaties, would not receive constitutional protection. Further, legislation is subject to being overridden, not only by subsequent or more specific legislation, but likewise is subject to potential repeal by subsequent governments which may differ in their constituency and platform. Such potential conflict must be taken into careful consideration when drafting UNDRIP legislation, to ensure that subsequent laws are subject to UNDRIP unless explicitly stated within said legislation, UNDRIP legislation cannot be replaced by subsequent governments unless by certain manner and form requirements such as a supermajority vote, or by including explicit provisions that bind both federal and provincial Crowns.

“It’s important as we embark on the project of implementation to acknowledge at the outset the difficulties that it’s going to involve,” Wilkins said. “But it’s equally important not to let the existence of those difficulties count as a reason not to make the effort at implementation.”

Julia Nowicki is a 2L JD student at the Faculty of Law and is currently an Asper Centre work-study student.

Access recording of the Constitutional Roundtablewith Kerry Wilkins HERE.

 

R v Chouhan: The Constitutionality of Abolishing Peremptory Challenges

by Annie Chan

The Asper Centre recently intervened in R v Chouhan, a case before the Supreme Court of Canada (SCC) whose outcome has fundamental implications on the process of jury selection in criminal trials.

Background

For 150 years, two types of challenges were permitted in jury selection in a criminal trial: (1) peremptory challenges, where a juror can be dismissed without explanation, and (2) challenges for cause, which require specific grounds. Section 634 of the Criminal Code allowed the Crown and the accused a fixed number of peremptory challenges each depending on the nature and seriousness of the offence [1]. In September 2019, Parliament enacted Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, which introduced three amendments to the jury selection process [2]. The first amendment expanded s. 633 of the Criminal Code, allowing judges to stand by jurors for the purpose of “maintaining public confidence in the administration of justice”. The second amendment repealed s. 634 of the Criminal Code, thereby abolishing peremptory challenges. Finally, the third appointed the presiding judge as the adjudicator of truth for challenges for cause in lieu of lay triers.

The bill came into force on September 19, 2019. On that same day, jury selection for the appellant, Mr. Chouhan, was scheduled to begin. Mr. Chouhan, who was at that time charged with first degree murder, challenged the constitutional validity of the second and third Bill C-75 amendments, arguing that they infringed upon his rights as an accused under ss. 7, 11(d) and 11(f) of the Canadian Charter of Rights and Freedoms [3][4].

Procedural History

The balance of Mr. Chouhan’s argument hinged on the abolition of peremptory challenges as infringing on his ss. 11(d) right to a fair hearing by an impartial tribunal. In upholding the constitutionality of the amendment, the trial judge emphasized the strong presumption of jury impartiality and the numerous safeguards in place to ensure this, including the availability of unlimited challenges for cause based on a reasonable prospect of partiality [5]. Mr. Chouhan appealed, arguing that in cases where the accused is racialized, the assumption of jury impartiality is rebutted, giving rise to the need for peremptory challenges [6]. In upholding the trial judge’s ruling, the Ontario Court of Appeal described the use of peremptory challenges in weeding out biased jurors as inherently paradoxical, as the exercise of such challenges is often purely subjective and rooted in stereotypes [7]. Leave to appeal was granted by the Supreme Court and oral arguments were heard on October 7, 2020.

Supreme Court of Canada Proceedings

At the heart of the proceedings was whether peremptory challenges actually advance or hinder the selection of fair and impartial juries, particularly when the accused belongs to a racialized community. In addition to Mr. Chouhan and the Crown, numerous interveners, including several representing racialized communities, submitted arguments falling on both sides of this issue. Counsel for Mr. Chouhan argued that peremptory challenges mitigate the effects of racial prejudice on jury selection by giving the accused at least some minimal control and confidence in the impartiality of the jurors and the fairness of the trial process. This position was supported by oral arguments from Joshua Sealy-Harrington on behalf of the BC Civil Liberties Association who argued that “implicit bias compromises the impartiality of trial juries and absent peremptory challenges, there is no safeguard against that implicit bias in the entirety of the jury selection process.”

In contrast, Aboriginal Legal Services intervened on the basis that peremptory challenges perpetuate discrimination against Indigenous persons in the criminal justice system. In fact, the legislature’s intent in eliminating peremptory challenges was to address concerns surrounding their use in excluding Indigenous people from juries. This issue was exemplified in the 2018 case of R v Stanley where an all-white jury acquitted Gerald Stanley, a white Saskatchewan farm-owner for both manslaughter and second-degree murder after he shot and killed a young Indigenous man named Colten Boushie. During jury selection, peremptory challenges were used to exclude five visibly Indigenous persons from the jury.

The Asper Centre intervened with the position that the abolition of peremptory challenges did not infringe on the Charter. Our factum (as can be found here) emphasized the inherent subjectivity of peremptory challenges which are often based on racial prejudice or stereotypes, thus inviting abuse via discriminatory use. The Asper Centre was represented by University of Toronto Professor of Law and Prichard-Wilson Chair of Law and Public Policy, Kent Roach. In oral arguments, Professor Roach noted that peremptory challenges are often based on “guess-work and gut instincts”. Thus, “deputizing the accused to use a limited number of peremptory challenges to ensure representativeness and impartiality is neither reliable nor transparent”. He noted that the problems with implicit bias would be more effectively dealt with through a robust challenge for cause procedure and a more diverse jury roll, as was argued in R v Kokopenace.

Ruling from the bench

The Supreme Court of Canada issued a ruling from the bench on the same day as the oral arguments were heard. Their ruling upheld the constitutionality of the abolition of peremptory challenges with written reasons to follow. This unexpectedly expeditious judgment may have been an attempt to mitigate the delays in criminal jury trials stayed pending this ruling as well as to alleviate the uncertainty surrounding the validity of convictions which were decided subsequent to the enactment of Bill C-75 but prior to this appeal.

Annie Chan is a 1L JD student at the Faculty of Law and is currently an Asper Centre work-study student.

[1] Criminal Code, RSC 1985, c C-46. s 634.

[2] Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, 1st Sess, 42nd Parl, 2019, c 25 ss 269-273.

[3] R v Chouhan, 2020 ONCA 40 at para 17 [Chouhan] [4] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982(UK), 1982, c 11.

[5] Chouhan at para 33

[6] ibid at para 37

[7] ibid at para 87

 

 

Supreme Court of Newfoundland and Labrador dismisses Constitutional Challenge to Travel Restriction

by Ainslie Pierrynowski

Does a provincial government have the authority to restrict interprovincial travel? Can limitations on mobility rights be justified in the name of public health? These timely issues were at the heart of Taylor v Newfoundland and Labrador,[1] a September 17, 2020 decision from the Supreme Court of Newfoundland and Labrador.

Background

On July 1, 2019, the Public Health Protection and Promotion Act, or the PHPPA, came into force in Newfoundland and Labrador.[2] When the Minister declares a public health emergency under PHPPA, section 28(1)(h) of the PHPPA enables the Chief Medical Officer of Health (CMOH) to make orders restricting travel to the province.[3]

In light of the COVID-19 pandemic, the CMOH issued such an order, effective May 4, 2020. This order limited entry to Newfoundland and Labrador residents, asymptomatic workers, and people with extenuating circumstances. On May 5, 2020, the CMOH made another order, which expanded the circumstances where a person would be exempt from the travel restriction.

When Kimberly Taylor’s mother passed away on May 5, 2020 at her home in Newfoundland and Labrador, Taylor sought an exemption from the travel restriction to attend her mother’s funeral. Taylor’s request was denied. Consequently, Taylor challenged section 28(1)(h) of the PHPPA. Taylor argued that this provision was beyond the legislative competence of the provincial legislature. In the alternative, Taylor contended that section 28(1)(h) infringed right to mobility and right to liberty pursuant to sections 6 and 7 of the Charter, respectively.

Is Section 28(1)(h) Beyond the Province’s Jurisdiction?

Justice Donald H. Burrage held that section 28(1)(h) fell within the province’s constitutional jurisdiction over matters of a local and private nature. At its core, the provision aimed at protecting and promoting the health of Newfoundland and Labrador’s population. Any impact on federal spheres of power, such as interprovincial undertakings, was merely incidental.

Furthermore, Justice Barrage noted, “[i]n the public health response to COVID-19 there is plenty of room for both levels of government…an effective public health response demands the cooperative participation of each [emphasis in the original].”[4]

Does Section 28(1)(h) infringe the Charter?

Justice Burrage determined that section 28(1)(h) did not engage Taylor’s right to liberty. A finding that Taylor’s right to liberty was engaged because of the travel restriction would effectively make section 6 mobility rights synonymous with the section 7 right to liberty. This conclusion would produce incoherence in the Charter, since section 7 applies to anyone “physically present in Canada and by virtue of such presence amenable to Canadian Law”[5] and is subject to the principles of fundamental justice, whereas section 6(1) only applies to Canadian citizens[6] and is subject to section 1 of the Charter. Alternatively, Taylor’s decision to attend her mother’s funeral does not amount to a “fundamental personal choice” and therefore does not attract Charter protection.

On the other hand, Justice Burrage concluded Taylor’s mobility rights had been infringed. Justice Burrage found that the right to remain in Canada under section 6(1) of the Charter included the right to move within Canada.

In this case, however, the violation of section 6(1) could be justified under section 1 of the Charter. According to Justice Burrage, the travel restriction related to a pressing and substantial objective: namely, protecting the province’s population from illness and death due to imported COVID-19 cases.

In terms of whether the travel restriction was rationally connected to this purpose, mathematical modelling presented in evidence showed that the travel restriction was an effective means of containing COVID-19. The model indicated that if non-resident travel to the province resumed at typical levels, the number of COVID-19 infections would rise to twenty times that of a scenario where the travel restriction remained in place and 1000 exempt non-residents entered the province every week.

As for the requirement that the impugned legislation must impair the protected right no more than necessary to achieve the desired objective, Justice Barrage found that limiting interprovincial travel was integral to containing COVID-19 in Newfoundland and Labrador. Overall, Justice Barrage concluded that the travel restriction’s benefit to the public outweighed its harms.

“While restrictions on personal travel may cause mental anguish to some, and certainly did so in the case of Ms. Taylor,” Justice Burrage wrote, “the collective benefit to the population as a whole must prevail.”[7]

Closing Thoughts

Ultimately, Taylor’s challenge to section 28(1)(h) was dismissed. Justice Barage held that the province’s  travel restrictions were consistent with the Constitution. The implications of this decision, however, stretch beyond the borders of Newfoundland and Labrador.

Across Canada, government responses to COVID-19 have forced legal advocates to grapple with the balance between individual rights and public health. For instance, a group of Yukon contractors have initiated a lawsuit challenging the territory’s COVID-19 restrictions. Similar to the challenge in Taylor, the applicants argue that the travel restrictions fall outside of the territory’s jurisdiction and that the travel restrictions infringe section 6 of the Charter. Meanwhile, the Justice Centre for Constitutional Freedoms released a report claiming that the Saskatchewan government’s COVID-19 response infringed the Charter and exceeded the province’s legislative jurisdiction. Echoing the basis for the Constitutional challenge in Taylor, the report contends that the Saskatchewan government’s COVID-19 response violates sections 6 and 7 of the Charter. Unlike Taylor, the report also draws on section 2 of the Charter, alleging that the Saskatchewan government’s actions have limited Saskatchewanians’ freedom to practice their faith, assemble, and associate.

The outcome of Taylor suggests that the courts may ultimately consider these measures Constitutional. While the Justice Centre for Constitutional Freedoms introduces a novel argument related to section 2 of the Charter, it remains to be seen whether this argument will eventually be raised in court.

Moreover, Justice Barrage concluded that PHPPA travel restrictions can operate alongside the federal Quarantine Act, as the latter deals with travel into Canada, not travel within Canada. Yet, Justice Barrage noted that “[i]t may well be the case that the Quarantine Act displaces s. 28(1)(h) of the PHPPA where international travel is concerned.”[8] Justice Barrage declined to expand on this point, as the case was concerned with domestic travel. Nevertheless, future cases might pick up this thread if federal and provincial travel restrictions ever come into conflict.

Overall, this case offers insight into the scope of provincial powers in the context of a public health emergency. This decision is significant—and not only due to the gravity of the ongoing COVID-19 pandemic. After all, as Newfoundland and Labrador’s Minister of Health and Community Services said when the PHPPA was introduced in the House of Assembly, “We are living in a world with SARS and Ebola.  You are one plane flight away from a significant public health problem…”[9]  As new public health concerns continue to emerge, the relationship between the Charter and provinces’ efforts to safeguard the health of their population seems poised to evolve and develop in tandem with these new challenges.

Ainslie Pierrynowski is a 2L JD student at the University of Toronto Faculty of Law.

[1] 2020 NLSC 125 [Taylor].

[2] Public Health Protection and Promotion Act, SNL 2018, c P-37.3, s 67.

[3] Public Health Protection and Promotion Act, SNL 2018, c P-37.3, s 28(1)(h).

[4] Taylor v Newfoundland and Labrador, 2020 NLSC 125 at para 290.

[5] Singh v Canada (Minister of Employment and Immigration), (1985) 1 SCR 177 at 202.

[6] Section 6(2) applies to Canadian citizens and permanent residents.

[7] Taylor, supra note 1 at para 292.

[8] Taylor v Newfoundland and Labrador, 2020 NLSC 125 at para 277.

[9] “Bill 37, An Act Respecting The Protection And Promotion Of Public Health,” Newfoundland and Labrador, House of Assembly Proceedings, 48-3, Vol XLVIII No 44 (20 November 2018) at 2616.

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.

Background

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.

Conclusion

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.