Reference re Genetic Non‑Discrimination Act

Reference re Genetic Non‑Discrimination Act
Collection
Supreme Court Judgments
Date
2020-07-10
Neutral citation
2020 SCC 17
Report
[2020] 2 SCR 283
Case number
38478
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas
On appeal from
Quebec
Subjects
Constitutional law
Notes
Case in Brief
SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Reference re Genetic Non-Discrimination Act , 2020 SCC 17, [2020] 2 S.C.R. 283
Appeal Heard: October 10, 2019 Judgment Rendered: July 10, 2020 Docket: 38478
Between:
Canadian Coalition for Genetic Fairness
Appellant
and
Attorney General of Canada and Attorney General of Quebec
Respondents
- and -
Attorney General of British Columbia, Attorney General of Saskatchewan, Canadian
Life and Health Insurance Association, Canadian Human Rights Commission,
Privacy Commissioner of Canada and Canadian College of Medical Geneticists
Interveners
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
Reasons: (paras. 1 to 108)
Karakatsanis J. (Abella and Martin JJ. concurring)
Concurring Reasons: (paras. 109 to 151)
Moldaver J. (Côté J. concurring)
Dissenting Reasons: (paras. 152 to 275)
Kasirer J. (Wagner C.J. and Brown and Rowe JJ. concurring)
IN THE MATTER OF a Reference by the Government of Quebec to the Court of Appeal of Quebec concerning the constitutionality of the Genetic Non‑Discrimination Act enacted by sections 1 to 7 of the Act to prohibit and prevent genetic discrimination, S.C. 2017, c. 3
Canadian Coalition for Genetic Fairness Appellant
v.
Attorney General of Canada and
Attorney General of Quebec Respondents
and
Attorney General of British Columbia,
Attorney General of Saskatchewan,
Canadian Life and Health Insurance Association,
Canadian Human Rights Commission,
Privacy Commissioner of Canada and
Canadian College of Medical Geneticists Interveners
Indexed as: Reference re Genetic Non‑Discrimination Act
2020 SCC 17
File No.: 38478.
2019: October 10; 2020: July 10.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
on appeal from the court of appeal for quebec
Constitutional law — Division of powers — Criminal law — Genetic tests — Parliament enacting legislation criminalizing compulsory genetic testing and non‑voluntary use or disclosure of genetic test results in context of wide range of activities — Whether ss. 1 to 7 of Genetic Non‑Discrimination Act, S.C. 2017, c. 3 , are ultra vires Parliament’s jurisdiction over criminal law — Constitution Act, 1867, s. 91(27) .
In 2017, Parliament enacted the Genetic Non‑Discrimination Act . Section 2 of the Act defines a genetic test as “a test that analyzes DNA, RNA or chromosomes for purposes such as the prediction of disease or vertical transmission risks, or monitoring, diagnosis or prognosis”. Sections 3 , 4 and 5 establish prohibitions relating to genetic tests: individuals and corporations cannot force individuals to take genetic tests or disclose genetic test results as a condition of obtaining access to goods, services and contracts; cannot refuse an individual access to goods, services and contracts because they have refused to take a genetic test or refused to disclose the results of a genetic test; and cannot use individuals’ genetic test results without their written consent in the areas of contracting and the provision of goods and services. Section 6 provides that the prohibitions established by ss. 3 to 5 do not apply to a physician, pharmacist or other health care practitioner, or to a person conducting research in certain respects. Section 7 provides that doing anything prohibited by ss. 3 , 4 or 5 is an offence punishable on summary conviction or by indictment. Section 8 of the Act amended the Canada Labour Code to protect employees from forced genetic testing or disclosure of test results, and from disciplinary action on the basis of genetic test results, and ss. 9 to 11 of the Act amended the Canadian Human Rights Act to add genetic characteristics as a prohibited ground of discrimination and to create a deeming provision relating to refusal to undergo genetic testing or disclose test results.
The Government of Quebec referred the constitutionality of ss. 1 to 7 of the Act to the Quebec Court of Appeal, asking whether these provisions were ultra vires to the jurisdiction of Parliament over criminal law under s. 91(27) of the Constitution Act, 1867 . The Court of Appeal answered the reference question in the affirmative, concluding that ss. 1 to 7 of the Act exceeded Parliament’s authority over criminal law. The Canadian Coalition for Genetic Fairness, which had intervened in the Court of Appeal, appeals to the Court as of right.
Held (Wagner C.J. and Brown, Rowe and Kasirer JJ. dissenting): The appeal should be allowed and the reference question answered in the negative.
Per Abella, Karakatsanis and Martin JJ.: Parliament had the power to enact the Genetic Non‑Discrimination Act under s. 91(27) of the Constitution Act, 1867 . The pith and substance of the challenged provisions is 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. This matter is properly classified within Parliament’s power over criminal law. The provisions are supported by a criminal law purpose because they respond to a threat of harm to several overlapping public interests traditionally protected by the criminal law — autonomy, privacy, equality and public health.
To determine whether a law falls within the authority of Parliament or a provincial legislature, a court must first characterize the law and then, based on that characterization, classify the law by reference to the federal and provincial heads of power under the Constitution.
At the characterization stage, a court must identify the law’s pith and substance. The goal is to determine the law’s true subject matter, even when it differs from its apparent or stated subject matter. The court will first look to characterize the specific provisions that are challenged, rather than the legislative scheme as a whole, to determine whether they are validly enacted. Identifying a law’s pith and substance requires considering both the law’s purpose and its legal and practical effects. Characterization plays a critical role in determining how a law can be classified, and thus the law’s matter must be precisely defined. The focus is on the law itself and what it is really about.
To determine a law’s purpose, a court looks to both intrinsic and extrinsic evidence. Intrinsic evidence includes the text of the law, and provisions that expressly set out the law’s purpose, as well as the law’s title and structure. Extrinsic evidence includes statements made during parliamentary proceedings and drawn from government publications. Both legal and practical effects are also relevant to identifying a law’s pith and substance. Legal effects flow directly from the provisions of the statute itself, whereas practical effects flow from the application of the statute.
Here, the title of the Act and the text of the prohibitions provide strong evidence that ss. 1 to 7 have the purpose of combatting genetic discrimination and the fear of genetic discrimination based on the results of genetic tests by prohibiting conduct that makes individuals vulnerable to genetic discrimination in the areas of contracting and the provision of goods and services. The prohibitions created by ss. 3 to 5 apply to a wide range of circumstances in which individuals might be treated adversely based on their decision about whether to undergo genetic testing. They do not target a particular activity or industry, but instead target conduct that enables genetic discrimination. Section 2 of the Act defines a “genetic test” as an analysis of genetic material for a health‑related purpose and therefore speaks to a health‑related genetic test. Reading the definition this way supports the conclusion that the Act aims to combat discrimination based on genetic test results, as health‑related genetic tests reveal highly personal information — details that individuals might not wish to know or share and that could be used against them.
The parliamentary debates provide strong evidence to support the view that the purpose of ss. 1 to 7 is to combat genetic discrimination. The debates make clear that the immediate mischief that the law was intended to address was the lack of legal protection for the results of genetic testing, which left individuals vulnerable to genetic discrimination and gave rise to fear of genetic discrimination. Those concerns correspond to the title of the Act and the text of the prohibitions. Parliament’s amendments to the Canada Labour Code and the Canadian Human Rights Act enacted at the same time as ss. 1 to 7 of the Act suggest that Parliament was looking to take a coordinated approach to tackling genetic discrimination based on test results, using different tools.
Parliament’s purpose in enacting the provisions in question is borne out in the provisions’ effects. Starting with legal effects, ss. 3 to 5 of the Act prohibit genetic testing requirements and non‑consensual uses of genetic test results in a broad range of circumstances. Section 7 imposes significant penalties for contravening these prohibitions. These prohibitions and penalties will also likely affect the operation of provincial and territorial legislation that requires the disclosure of genetic test results. The most direct and significant practical effect of the prohibitions is to give individuals control over the decision of whether to undergo genetic testing and over access to the results of genetic testing. The prohibitions do so by preventing genetic testing requirements from being imposed on individuals as a condition of access to goods, services and contracts, and by preventing individuals’ genetic test results from being used non‑consensually when they seek to obtain goods and services and enter into contracts.
As to classification, s. 91(27) of the Constitution Act, 1867 , gives Parliament the exclusive authority to make laws in relation to the criminal law. A law will be valid criminal law if, in pith and substance, (1) it consists of a prohibition (2) accompanied by a penalty and (3) backed by a criminal law purpose. Here, as there are undoubtedly prohibitions accompanied by penalties, the only issue is whether ss. 1 to 7 of the Act are supported by a criminal law purpose.
A law is backed by a criminal law purpose if the law, in pith and substance, represents Parliament’s response to a threat of harm to a public interest traditionally protected by the criminal law, such as peace, order, security, health and morality, or to a threat of harm to another similar interest. As long as Parliament is addressing a reasoned apprehension of harm to one or more of these public interests, no degree of seriousness of harm need be proved before it can make criminal law.
The essential character of the prohibitions in the Act represents Parliament’s response to the risk of harm that the prohibited conduct, genetic discrimination and the fear of genetic discrimination based on genetic test results pose to several public interests traditionally protected by the criminal law: autonomy, privacy, equality and public health.
Safeguarding autonomy and privacy are established uses of the criminal law power. The conduct prohibited by ss. 1 to 7 of the Act poses a risk of harm to two facets of autonomy and personal privacy because individuals have an interest in deciding whether or not to access the detailed genetic information revealed by genetic testing and whether or not to share their test results with others. The risk of harm to these dignity‑related interests in the contexts of the provision of goods and services and the conclusion of contracts is significant: the dignity, autonomy and privacy interests in individuals’ detailed genetic information were understood by Parliament to be unique and strong. The potential for genetic test results to reveal highly personal information about the individual tested and the potential for abuse of genetic test results and the information they reveal are immense. Protecting fundamental moral precepts or social values is also an established criminal law purpose. Genetic discrimination threatens the fundamental social value of equality by stigmatizing and imposing adverse treatment on individuals because of their inherited, immutable genetic characteristics. In pith and substance, ss. 1 to 7 of the Act are Parliament’s response to the risk of harm that the prohibited conduct and discrimination based on genetic test results pose to autonomy, privacy and equality. Parliament has the power under s. 91(27) to protect people from emerging threats to these interests. This is especially so when Parliament reasonably views the information it is safeguarding as uniquely elemental to identity, and uniquely vulnerable to abuse. Protecting these core interests is an established, proper use of the criminal law power.
Parliament can also use its criminal law power to respond to a reasoned apprehension of harm to public health. Genetic discrimination and the fear of genetic discrimination are barriers to accessing suitable, maximally effective health care, to preventing the onset of health conditions and to participating in research. Here, in pith and substance, Parliament’s action was a response to the harm that vulnerability to and fear of genetic discrimination posed to public health. Giving individuals control over access to their genetic information by prohibiting forced genetic testing and disclosure of test results and the non‑consensual collection, use or disclosure of genetic test results in the areas of contracting and the provision of goods and services targets the harmful fear of genetic discrimination that poses a threat to health. The Act was intended to target that fear.
Per Moldaver and Côté JJ.: There is agreement in the result with Justice Karakatsanis that ss. 1 to 7 of the Act represent a valid exercise of Parliament’s power over criminal law set out at s. 91(27) of the Constitution Act, 1867 . However, there is disagreement as to the pith and substance of ss. 1 to 7: it is to protect health by prohibiting conduct that undermines individuals’ control over the intimate information revealed by genetic testing. By giving people control over the decision to undergo genetic testing and over the collection, disclosure and use of the results of such testing, Parliament sought to mitigate their fears that their genetic test results could be used against them in a wide variety of contexts. Parliament had ample evidence before it that this fear was causing grave harm to the health of individuals and their families, and to the public healthcare system as a whole.
The pith and substance of the impugned provisions is borne out by their purpose and effects. By enacting ss. 1 to 7 of the Act, Parliament sought to prohibit conduct that was undermining individuals’ control over the information revealed by genetic testing — conduct that was leading to health‑related harms. This purpose can be discerned from the structure and content of the Act, and from the parliamentary debates.
The text of the impugned provisions is a key source of intrinsic evidence of purpose. Section 2 sets out the definition of “genetic test”, which is restricted to tests that are taken for health‑related purposes. This limited definition is crucial in order to accurately identify the purpose of the prohibitions in ss. 3 to 5 of the Act, since the term “genetic test” lies at the heart of each of those sections. Sections 3 to 5 give individuals control over the profoundly personal information revealed by genetic testing.
An additional form of intrinsic evidence is the title of the Act. While the short and long titles of the Act do not mirror the pith and substance of ss. 1 to 7, they are nonetheless consistent with the purpose identified. This is because reducing the opportunities for genetic discrimination is one of the ways in which the provisions in issue reduce individuals’ fears that their genetic information will be used against them — the barrier to pursuing genetic testing that Parliament identified and sought to remove. Thus, while preventing genetic discrimination is not the dominant purpose of the impugned provisions, it is still an important feature of the legislation.
Although the constitutionality of ss. 8 to 10 of the Act — which amended the Canada Labour Code and the Canadian Human Rights Act — is not in issue, considering ss. 1 to 7 of the Act alongside those sections reveals important distinctions that shed light on the purpose of the impugned provisions. Unlike ss. 1 to 7 of the Act, the amendments in ss. 8 to 10 of the Act prohibit genetic discrimination. This indicates that where Parliament’s dominant objective was to prevent and prohibit genetic discrimination, it did so directly. This supports the conclusion that the dominant purpose of ss. 1 to 7 is not preventing and prohibiting genetic discrimination, but rather prohibiting conduct that deprives individuals of control over their genetic test results in order to protect health.
The parliamentary record bolsters the conclusion regarding the purpose of the provisions in question. The debates and testimony are directed at the devastating health consequences that were resulting from people foregoing genetic testing out of fear that the personal health information revealed by such testing could be used against them, including in discriminatory ways. To avoid these health consequences, Parliament targeted a disincentive to genetic testing: individuals’ lack of control over the personal health information revealed by genetic testing. It sought to remove this barrier by prohibiting conduct that deprived individuals of that control.
There is agreement with Karakatsanis J. that the most significant practical effect of the Act is that it gives individuals control over the decision of whether to undergo genetic testing and over access to the results of any genetic testing they choose to undergo. Sections 1 to 7 confer near complete control over the specific category of genetic information that Parliament was targeting (i.e. “genetic test” results). These sections give individuals the ability to dictate the manner and extent to which their genetic test results may be collected, disclosed, and used in a wide array of contexts. This control has cascading effects that ultimately result in the protection of health. By giving individuals control over the intimate health‑related information revealed by genetic testing, the pertinent provisions have the effect of reducing their fears that this information will be used against them in myriad ways.
At the classification stage, ss. 1 to 7 of the Act are backed by a criminal law purpose because they are directed at suppressing a threat. Canadians choosing to forego genetic testing and thereby dying preventable deaths and suffering other preventable health‑related harms for no reason other than the fear that their genetic test results could be used against them is a threat to health that Parliament was constitutionally entitled to address, pursuant to s. 91(27) of the Constitution Act, 1867 . Beyond addressing the dangers of preventable disease, the impugned provisions also protect other significant facets of health, like privacy and autonomy. They accordingly represent a valid exercise of Parliament’s power to enact laws in relation to the criminal law.
Per Wagner C.J. and Brown, Rowe and Kasirer JJ. (dissenting): The appeal should be dismissed and the reference question answered affirmatively. Sections 1 to 7 of the Act were not enacted within the constitutional authority of Parliament over the criminal law under s. 91(27) of the Constitution Act, 1867 . Rather, they fall within provincial jurisdiction over property and civil rights conferred by s. 92(13).
The pith and substance of ss. 1 to 7 of the Act is 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 a view to promoting the health of Canadians. Sections 1 to 7 do not satisfy the substantive component of criminal law — a valid criminal law purpose — as Parliament has neither articulated a well‑defined threat that it intended to target, nor did it provide any evidentiary foundation of such a threat. Instead, ss. 1 to 7 substantially affect the substantive law of insurance as well as human rights and labour legislation in all provinces.
To determine whether ss. 1 to 7 of the Act are ultra vires Parliament’s jurisdiction over criminal law under s. 91(27) of the Constitution Act, 1867 , courts must first characterize the law, i.e. determine its pith and substance, and then classify the law and determine whether it comes within the jurisdiction of the level of government that enacted it.
The exercise of characterization of impugned legislation must be as precise as possible. The true character of legislation is one which reflects its dominant purpose and effect. While other incidental features of the law may be noted, they should not dictate characterization lest classification be sent down the wrong path. The court’s inquiry into pith and substance must be anchored in the text of the impugned legislation. The court must also be careful not to let form control the pith and substance inquiry; it should examine the substance of the legislation to determine what the legislature is really doing. In order to discern the purpose for which the impugned provisions were adopted, both intrinsic and extrinsic evidence must be considered.
Regarding intrinsic evidence, while a statute’s title can be helpful to identify its pith and substance, legislatures sometimes use titles to other ends. Here, neither the long title nor the short title of the Act can be said to reflect clearly the impugned provisions’ true purpose. They do not support a conclusion that ss. 1 to 7 seek to prohibit or prevent discrimination on genetic grounds. They also do not disclose Parliament’s dominant purpose as focused on privacy and autonomy.
As no preamble or purpose section outlines the raison d’être of the law, the text of the provisions take particular significance in determining their pith and substance. The definition of “genetic test” in s. 2 is central to identifying the law’s purpose, since the prohibitions in ss. 3 to 5, the exemption in s. 6, and the penalties in s. 7 all rely on this narrow, health‑based definition. Taken together, ss. 1 to 7 aim to prohibit making the provision of goods and services or the making, continuing, or offering of specific terms or conditions of a contract conditional upon an individual undergoing or disclosing the results of genetic testing. The provisions do not prohibit the use of genetic information that may be disclosed voluntarily or obtained through other means, and they do not prohibit genetic discrimination. Sections 1 to 7 are limited in compass to a category of certain health‑based genetic tests.
With respect to extrinsic evidence, the amendments to the Canadian Human Rights Act and Canada Labour Code in ss. 8 to 10 of the Act plainly create prohibitions against genetic discrimination which are absent from ss. 1 to 7 of the Act. This demonstrates that the purpose of ss. 1 to 7 is not to prohibit discrimination based on genetic characteristics. While ss. 1 to 7 may offer, to some extent, limited control to individuals over their genetic information, they do not reduce their fears surrounding genetic testing in any real measure, since they do nothing to prohibit genetic discrimination.
Next, the legislative debates are an indicia of the legislature’s intent, but they cannot stand for the Act and replace its provisions. With that said, in this case, the debates generally reveal that genetic tests were considered to be beneficial and viewed as a means of opening avenues to improved health treatment, as they allow Canadians to be aware of risks and change their behaviour. Parliament was focused on the promotion of health and on removing barriers in order to create incentives for genetic testing. The main sectors of focus in the parliamentary record were insurance and employment. On balance, the debates emphasize that ss. 1 to 7 of the Act were included as a way to encourage Canadians to undergo genetic tests, by mitigating their fears that they would be misused, in particular in respect of insurance and employment.
In light of the above, the purpose of ss. 1 to 7 is not to combat discrimination based on genetic characteristics, or to control the use of private information revealed by genetic testing. Rather, their true aim is to regulate contracts, particularly contracts of insurance and employment, in order to encourage Canadians to undergo genetic tests without fear that those tests will be misused so that their health can ultimately be improved.
Immediate effects, and not indirect or speculative effects, are relevant to the validity of a law in so far as they reveal its pith and substance. Here, the dominant effects of ss. 1 to 7 concern the regulation of insurance and the promotion of health rather than the protection of privacy and autonomy or the prevention of genetic discrimination. The provisions’ focus is on controlling the exchange of information obtained through specific means in relation to contracts and the provision of goods and services, particularly in the insurance industry. Legally, the provisions represent a departure from the provincial law of insurance and human rights legislation in Canada; practically, the insurance market will be affected by the incomplete information insurers receive from some policy‑holders.
The definition of “genetic test” in s. 2 of the Act and the conditions placed on contracts and the provision of services in ss. 3 to 5 also indicate plainly that health improvement is the dominant effect sought by ss. 1 to 7 of the Act. The contested provisions seek to improve the health of Canadians through the removal of a stumbling block: the fear that genetic tests will be misused. They also bear upon privacy and autonomy. However, given the focus on a narrow category of testing and only on genetic information derived from genetic tests, and given that all information about one’s health is considered private, the effects of the impugned provisions on privacy are incidental to the promotion of health.
The sole issue at the classification stage is whether Parliament was authorized to enact the impugned provisions under the criminal law power conferred by s. 91(27) of the Constitution Act, 1867 . A law will be properly categorized as valid criminal law if three essential elements are satisfied: a prohibition, a penalty related to that prohibition, and a valid criminal law purpose. The first two elements are formal requirements while the third is substantive. This tripartite test ensures Parliament cannot use its authority improperly to invade upon provinces’ areas of competence, thus ensuring the balance of federalism is respected. Here, the only issue concerns whether ss. 1 to 7 are supported by the third requirement, a valid criminal law purpose.
For the substantive criminal law purpose requirement to be met, the impugned legislation must be directed at an evil or injurious or undesirable effect upon the public. The concept of “evil” is necessary to remind Parliament that mere undesirable effects are not sufficient for legislation to have a criminal purpose. It remains conceptually useful for courts to search for an evil before the criminal law purpose requirement is satisfied. Three questions must be confronted when determining whether a law rests upon a valid criminal law purpose. First, does the impugned legislation relate to a public purpose, such as public peace, order, security, health, or morality? Second, did Parliament articulate a well‑defined threat to be suppressed or prevented by the impugned legislation (i.e. the evil or injurious or undesirable effect upon the public)? Third, is the threat “real”, in the sense that Parliament had a concrete basis and a reasoned apprehension of harm when enacting the impugned legislation?
Regarding the first question, there is agreement that the contested provisions can be said to relate to a public purpose: health. There is a clear dimension related to health in the dominant character of the legislation. The impugned provisions also have an impact on privacy and autonomy, but the scope of the definition of “genetic test” in s. 2 means that health is the primary character of the law and that privacy and autonomy are only derivatives thereof.
Regarding the second question, Parliament must clearly articulate and define the scope of the threat it seeks to suppress, i.e. it must articulate a precise threat with ascertainable contours. This requirement is particularly important in relation to matters that have provincial aspects, such as health, in order to preserve the balance of federal and provincial powers. It is not sufficient for the impugned provisions’ pith and substance to merely relate to health; it must also involve suppressing an evil or injurious or undesirable effect upon the public. Here, there is no defined public health evil or threat to be suppressed. The objective of the legislation is to foster or promote beneficial health practices — it seeks to encourage Canadians to undergo genetic testing, which may then result in better health outcomes. This, in and of itself, will simply not suffice at this stage. The mere fact that genetic testing is a novel development does not, on its own, bring it within the purview of the criminal law. Moreover, a gap in provincial legislations across the country is not a well‑defined threat that justifies recourse to the criminal law.
Regarding the third question, while Parliament undoubtedly has wide latitude to determine the nature and degree of harm to which it wishes to respond, it cannot act where there is no adequate evidentiary foundation of harm. Had there been a well‑defined threat to health in this case, there still would have been no evidentiary foundation of harm. Rather, Parliament seeks to improve the health of Canadians by making them aware of underlying conditions they may have and does so by attempting to encourage the use of genetic tests. The contested provisions therefore do not satisfy the substantive component of criminal law.
Cases Cited
By Karakatsanis J.
Applied: Reference re Validity of Section 5(a) of the Dairy Industry Act, [1949] S.C.R. 1, aff’d [1951] A.C. 179; referred to: OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Re Resolution to amend the Constitution, [1981] 1 S.C.R. 753; Hodge v. The Queen (1883), 9 App. Cas. 117; Reference re pan‑Canadian securities regulation, 2018 SCC 48, [2018] 3 S.C.R. 189; Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14, [2015] 1 S.C.R. 693; Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837; Saskatchewan (Attorney General) v. Lemare Lake Logging Ltd., 2015 SCC 53, [2015] 3 S.C.R. 419; Smith v. The Queen, [1960] S.C.R. 776; Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, [2015] 3 S.C.R. 250; Chatterjee v. Ontario (Attorney General), 2009 SCC 19, [2009] 1 S.C.R. 624; Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161; Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783; General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641; Reference re Assisted Human Reproduction Act, 2010 SCC 61, [2010] 3 S.C.R. 457; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; R. v. Morgentaler, [1993] 3 S.C.R. 463; Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3; Desgagnés Transport Inc. v. Wärtsilä Canada Inc., 2019 SCC 58, [2019] 4 S.C.R. 228; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135; R. v. Hydro‑Québec, [1997] 3 S.C.R. 213; R. v. Malmo‑Levine, 2003 SCC 74, [2003] 3 S.C.R. 571; Proprietary Articles Trade Association v. Attorney General for Canada, [1931] A.C. 310; Scowby v. Glendinning, [1986] 2 S.C.R. 226; R. v. Wetmore, [1983] 2 S.C.R. 284; Standard Sausage Co. v. Lee, [1933] 4 D.L.R. 501; R. v. Morgentaler, [1988] 1 S.C.R. 30; R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34; Labatt Breweries of Canada Ltd. v. Attorney General of Canada, [1980] 1 S.C.R. 914; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; Association des parents de l’école Rose‑des‑vents v. British Columbia (Education), 2015 SCC 21, [2015] 2 S.C.R. 139.
By Moldaver J.
Applied: RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; referred to: Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14, [2015] 1 S.C.R. 693; Ward v. Canada (Attorney General), 2002 SCC 17, [2002] 1 S.C.R. 569; Reference re Validity of Section 5(a) of the Dairy Industry Act, [1949] S.C.R. 1; RJR‑MacDonald Inc. v. Canada (Attorney General) (1991), 82 D.L.R. (4th) 449; RJR‑MacDonald Inc. v. Canada (Attorney General) (1993), 102 D.L.R. (4th) 289; Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783.
By Kasirer J. (dissenting)
Reference re Validity of Section 5(a) of the Dairy Industry Act, [1949] S.C.R. 1; Desgagnés Transport Inc. v. Wärtsilä Canada Inc., 2019 SCC 58, [2019] 4 S.C.R. 228; Reference re Assisted Human Reproduction Act, 2010 SCC 61, [2010] 3 S.C.R. 457; Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; Reference re Environmental Management Act (British Columbia), 2019 BCCA 181, 25 B.C.L.R. (6th) 1, aff’d 2020 SCC 1, [2020] 1 S.C.R. 3; R. v. Morgentaler, [1993] 3 S.C.R. 463; Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783; Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14, [2015] 1 S.C.R. 693; Global Securities Corp. v. British Columbia (Securities Commission), 2000 SCC 21, [2000] 1 S.C.R. 494; Ward v. Canada (Attorney General), 2002 SCC 17, [2002] 1 S.C.R. 569; Chatterjee v. Ontario (Attorney General), 2009 SCC 19, [2009] 1 S.C.R. 624; R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342; Canadian Federation of Agriculture v. Attorney‑General for Quebec, [1951] A.C. 179; R. v. Malmo‑Levine, 2003 SCC 74, [2003] 3 S.C.R. 571; Schneider v. The Queen, [1982] 2 S.C.R. 112; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; R. v. Wetmore, [1983] 2 S.C.R. 284; R. v. Hydro‑Québec, [1997] 3 S.C.R. 213; Labatt Breweries of Canada Ltd. v. Attorney General of Canada, [1980] 1 S.C.R. 914; R. v. Hauser, [1979] 1 S.C.R. 984; R. v. Butler, [1992] 1 S.C.R. 452; Citizens Insurance Co. of Canada v. Parsons (1881), 7 App. Cas. 96; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331.
Statutes and Regulations Cited
An Act to amend the Canadian Human Rights Act and the Criminal Code, S.C. 2017, c. 13.
Bill S‑201, An Act to prohibit and prevent genetic discrimination, 1st Sess., 42nd Parl., 2017.
Bill S‑201, An Act to prohibit and prevent genetic discrimination, 2nd Sess., 41st Parl., 2015.
Bill S‑218, An Act to prohibit and prevent genetic discrimination, 1st Sess., 41st Parl., 2013, s. 6.
Canada Labour Code , R.S.C. 1985, c. L‑2, ss. 247.98 , 247.99 .
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