House of Commons
Genetic Discrimination – S-201
Private Members Business
S-201 is at a critical juncture. Nearly at the final step in the legislative process and following tens of thousands of members of the grassroots Jewish community participating in a CIJA campaign in support of S-201, amendments are now being proposed. We encourage you to participate in our Action Alert calling on your MP to support S-201 without amendment.
CIJA was mentioned a number of times during debate and MP Rob Oliphant, the sponsor of the bill, thanked us for our contributions:
Mr. Robert Oliphant (Don Valley West, Lib.): I thank the patients and the doctors, the parents and researchers, the advocates, legal scholars, the many health groups, and the Centre for Israel and Jewish Affairs that persisted in making sure that this bill passed at second reading and got to the Standing Committee on Justice and Human Rights, so ably chaired by the member for Mount Royal.
The House proceeded to the consideration of Bill S-201, an act to prohibit and prevent genetic discrimination, as reported (with amendment) from the committee.
Speaker’s Ruling
The Assistant Deputy Speake (Mr. Anthony Rota ): There are eight motions in amendment standing on the Notice Paper for the report stage of Bill S-201. Motions Nos. 1 to 8 will be grouped for debate and voted upon according to voting patterns available at the table.
I will now put Motions Nos. 1 to 8 to the House.
Mr. Randy Boissonnault (Edmonton Centre, Lib.)
moved:
Motion No. 1
That Bill S-201 be amended by deleting the short title.
Motion No. 2
That Bill S-201 be amended by deleting Clause 2.
Motion No. 3
That Bill S-201 be amended by deleting Clause 3.
Motion No. 4
That Bill S-201 be amended by deleting Clause 4.
Motion No. 5
That Bill S-201 be amended by deleting Clause 5.
Motion No. 6
That Bill S-201 be amended by deleting Clause 6.
Motion No. 7
That Bill S-201 be amended by deleting Clause 7.
Motion No. 8
That Bill S-201 be amended by deleting Clause 8.
MP Randy Boissonnault outlined his rationale for supporting the amendments:
Mr. Speaker, I will use my time to address Bill S-201, an act to prohibit and prevent genetic discrimination, and the amendments that were tabled yesterday, which propose to delete clauses 1 through 8 of the bill.
I will begin by noting that the proposed amendments were neither the subject of discussion nor debate before the Standing Committee on Justice and Human Rights during its consideration of the bill. It is important to take this opportunity to address some critical concerns arising from the proposed legislation.
I will first clarify that I fully support the intent of Bill S-201, which is to protect Canadians from being discriminated against on the basis of their genetic characteristics. I agree wholeheartedly that no one should be singled out solely on the basis of a genetic predisposition to a particular disease or condition. That is why I believe fundamentally that the amendments to the Canadian Human Rights Act should remain in this bill as a matter falling squarely within the federal jurisdiction.
As all members of this House are aware, it is our duty as parliamentarians to ensure that we fundamentally respect the Constitution before passing any laws. Part of that duty means that we must remain vigilant of the constitutional division of powers between the federal Parliament and our provincial counterparts. In particular, clauses one through seven of Bill S-201, which would enact the genetic non-discrimination act, or GNDA, intrude into provincial jurisdiction over contracts and the provision of goods and services.
This is not about abstract or academic concerns, nor is it about solely co-operative and respectful federalism, which forms the bedrock of democracy in this country. This is a matter of our fundamental obligation, as members of Parliament, to ensure that legislation complies with our Constitution.
I share the concerns previously expressed by the government. Cabinet is certainly not alone in this view, as a number of the provinces have written to the government in opposition to the GNDA portion of Bill S-201. I will return to these letters shortly, but first I will offer some background on the constitutional responsibilities we have with respect to our provincial partners.
The Constitution Act of Canada calls for a separation of powers between the federal Parliament and the provincial and territorial legislative assemblies by theme. Based on these shared jurisdictions, the Parliament of Canada can only legislate on the powers included in the Constitution and residual powers, while provincial legislatures have their own areas of jurisdiction.
To determine whether the federal legislation respects this division of powers, the courts look to whether the law’s “pith and substance”, what the law is really about, relates to a federal area of power.
The act to prohibit and prevent genetic discrimination prohibits any person from requiring an individual to undergo a genetic test or disclose the results of a genetic test as a condition of offering or maintaining specific conditions in a contract or agreement, and of providing goods or services.
When we look at this context, it is clear that the legislation in question, in its wording and substance, regulates contracts and the provision of goods and services. These things fall fully under provincial legislative jurisdictions over property and civil rights.
The Constitution engages concerns that are bigger than any one piece of legislation, no matter how laudable its intent. As written, the GNDA impedes on a critical set of powers which belongs exclusively to the provinces.
I will now focus my attention to the responses from the provincial governments. Over the past few weeks, our government has received a series of letters from the provinces of Quebec, British Columbia, and Manitoba on the matter of Bill S-201. Every one of these letters suggest that the act to prohibit and prevent genetic discrimination would encroach on an exclusively provincial jurisdiction.
In one letter co-signed by three Quebec ministers, the Hon. Stéphanie Vallée, minister of justice and attorney general of Quebec, the Hon. Carlos Leitão, minister of finance, and the Hon. Jean-Marc Fournier, minister responsible for Canadian relations and the Canadian francophonie, opposed the act to prohibit and prevent genetic discrimination.
They said that by virtue of the subject matter of the bill, it constitutes a clear intrusion in exclusively provincial jurisdictions. They add that the regulation of contracts and the provision of goods and services are in fact matters that fall under provincial jurisdiction. They say that, like us, they refer to the jurisdiction of the provinces and the Supreme Court’s position in Reference re Assisted Human Reproduction Act, whereby the extent of Parliament’s power to legislate criminal law must not upset the balance of the division of powers.
The ministers concluded by suggesting that there should be a more collaborative and respectful approach to the federal-provincial division of powers in order to address the issue of genetic discrimination.
Next is a letter from the Hon. Cameron Friesen, the Minister of Finance in Manitoba. Minister Friesen expresses similar concerns to those of his Quebec colleagues, stating, “We have consulted with other governments and among my staff, and we agree that there is considerable potential for this act to stray into areas of provincial jurisdiction over insurance. As you might expect, provinces are not inclined to relinquish our constitutional authority, and certainly not without discussion. Provinces will likely be forced to seek judicial review on the validity of this legislation if it receives royal assent.”
Minister Friesen also draws attention to the broader policy discussion regarding disclosure of genetic information that ought to occur between the federal and provincial governments before comprehensive legislation is passed.
The third letter comes from the Hon. Suzanne Anton, the Minister of Justice and Attorney General of British Columbia. Minister Anton begins by noting that the B.C. government is “very supportive” of the intention behind Bill S-201. She underscores her government’s commitment to the protection of basic human rights, and raises significant concerns with Bill S-201.
Minister Anton states, “However, we share the view…that the proposed Act may go beyond Parliament’s legislative jurisdiction. In fact, we would identify the following considerations relative to the issues raised by this Bill: 1…the proposed Bill has the potential to encroach in a number of areas of provincial jurisdiction, and as such, would benefit from a more comprehensive review and amendment prior to passage; and 2. Proportionality: In reviewing the potential consequences for an act of prohibited discrimination under the Bill relative to a comparable discrimination under human rights legislation, it appears that the consequences of this Bill would be significantly greater and arguably disproportionate relative to the consequences of actual discrimination.” The minister concludes by stating that as a result of these concerns, the Government of British Columbia opposes Bill S-201 in its current form.
In reviewing these letters, there is no doubt that as a government we are running the risk of provoking and impeding upon the jurisdiction of our provincial partners. That is why we have proposed the deletion of clauses 1 through 7 of Bill S-201. It is not because of disagreement with the stated goal of the bill. In fact, the contrary is true. It is because of a sincere belief in upholding the fundamental balance of federalism, without which our country cannot function. This issue is too important to not get right.
In my remaining time, I will briefly address reasons for proposing the deletion of clause 8 of Bill S-201, which contains the amendments to the Canada Labour Code, CLC. Employment-related discrimination in Canada is typically addressed by human rights legislation like the Canadian Human Rights Act, not by labour legislation. There is concern about singling out one specific form of discrimination for protection in the CLC, and about establishing a separate complaints mechanism under the CLC that would only consider complaints of genetic discrimination. By amending both the CLC and the Canadian Human Rights Act, we would be creating two parallel and overlapping avenues for redress. This would be confusing for employers and employees, and could result in conflicting decisions and an inefficient use of public resources. In Canada, addressing discrimination falls squarely under the purview of the Canadian Human Rights Commission, and that is where it must remain.
Bill S-201 also departs from the traditional and respectful approach to labour law reform, which involves consultation and consensus building between employers, labour unions, and the federal government. For these reasons, clause 8 of this bill should be deleted.
While recognizing the tremendous work that has gone into the development of Bill S-201, only the amendments to the Canadian Human Rights Act should be supported by the House.
In closing, I wish to emphasize that all Canadians should be protected from genetic discrimination, a matter that requires ongoing co-operation between federal and provincial governments. Such important intergovernmental co-operation must and will continue to protect the rights of all Canadians.
A number of MPs spoke in support of comprehensive legislation to end Genetic Discrimination. You can read the complete debate here but a selection of the debate is included below:
Hon. Rob Nicholson (Niagara Falls, CPC): Mr. Speaker, I am very surprised, quite frankly, at the comments by my colleague.
When this was before committee, those who testified generally agreed that it was within the Constitution of this country. We heard evidence completely on that. The hon. member said he is completely supportive of all the efforts behind this, but when the bill has been gutted, that gets called into question. I am very disappointed on that, quite frankly. I would have been interested in hearing what they heard from the Province of Ontario. I am sure, when those members were out soliciting legal opinions, the Province of Ontario told them it was okay. Did it? I can imagine that is what it said.
Despite that, I am pleased to support this bill because it is important. It would prohibit requiring any individual to take a genetic test or to disclose the results of that genetic test.
The time has come for us to do something about genetic discrimination. It can take many forms, all of which are unjust and feed the Orwellian mentality, which can be destructive to the welfare of a free and open society.
Genetic testing is routinely used as a tool for medical diagnosis, which is a positive thing. As the science of genetic testing has evolved into a multi-billion dollar industry, so too has the possible misuse of this information in ways that are contrary to patients’ best interests. Canada, unlike most other western nations, has not kept pace with the rapid growth of the genetic field and thus has no laws provincially or federally that protect Canadians from having their own genetic information used against them.
This bill would ensure that Canadians are fully protected against employers or insurance companies that would deny employment or ensure coverage.
Studies indicate that there are also grave social consequences to the misuse of genetic testing. It is a dangerous precedent, as certain groups may encounter discrimination based on their race. For instance, people could be evaluated not on the basis of their merit and abilities, but on predictions of future health and/or their performance based on ethnicity. For instance, in the United States, African Americans statistically do not live as long as Americans of European descent, even when there are no socio-economic factors present. Scientists have also discovered that Jewish people can have a propensity for Huntington’s disease. They too could be denied insurance.
Increasingly, and rightly so, patients are reluctant to agree to have their medical genetic testing done for fear the results may be used against them, thereby putting their own health at risk even when such testing might prevent disease and give the patient the opportunity to adopt lifestyle choices to avoid medical complications.
Recently, The Globe and Mail reported on a case of a 24-year-old professional who was dismissed after sharing with his employer that he had tested positive for Huntington’s disease, although his symptoms would not manifest for approximately 20 years. Canada is the only G7 nation not to have protections in place for citizens like him.
Currently, there are 38,000 genome tests that can be done, and that number is growing exponentially, daily indeed. Canada has not kept pace with the science, and it is imperative that we do so now. It is our duty.
Bill S-201 would prohibit service providers from demanding or requiring a person to disclose past results of genetic testing in order to exercise prejudice. Insurance companies and employers are not the only ones in this area that can be affected by forced disclosure.
If we do not pass this bill, it will become exponentially harder to pass in the future, in my opinion, but it would do the right thing in protecting people from possible discrimination.
We have to get involved with this. There are legal opinions. The bill fits perfectly within federal jurisdiction. I am sure the hon. member and others in the government in their solicitations were looking for reasons to defeat this legislation. As I pointed out to them, the provincial jurisdiction with the largest justice department in Canada happens to be in Ontario. What did Ontario say? Ontario said it is okay with this. It does not have any particular objections to this bill.
This is an opportunity for all members of Parliament, regardless of which political party they are a part of, to stand up and do the right thing. I hope this gets passed by all members of the House.
Mr. Alistair MacGregor (Cowichan—Malahat—Langford, NDP): Mr. Speaker, it is an honour to stand here and add my voice in strong support of Bill S-201, an act to prohibit and prevent genetic discrimination.
I want to recognize the hard work of Senator James Cowan, recently retired, who has been shepherding this legislation in one form or another for several years now. In light of his retirement, it would be a tremendous gesture on the part of the House to honour his work on this legislation and pass the bill without amendments.
I also want to acknowledge the hard work of the member for Don Valley West who has sponsored this bill in the House of Commons and has provided convincing and sustained arguments for its passage every step of the way.
Finally, I want to thank my colleagues on the Standing Committee of Justice and Human Rights who I worked with on this bill through five meetings. I especially want to thank my Liberal colleagues on that committee for having the courage to stand up against the wishes of their government and help pass the bill through the committee without any significant changes.
I support the need to protect Canadians from genetic discrimination through strong federal legislation. We believe all Canadians should be afforded the best health care possible, and genetic testing is increasingly part of health care prevention. Accordingly Canadians should have a right to know their genetic characteristics without fear of discrimination by employers or insurance companies.
Indeed, with few exceptions, the vast majority of witnesses said that the passage of the bill with all of its main clauses intact was vital to protect against genetic discrimination. My Liberal colleagues on the committee did well to listen to the evidence during the clause-by-clause consideration of the bill to pass it in its present form.
There are three main pillars to Bill S-201, which my colleague for Don Valley West refers to as the three legs of a stool, all are necessary to keep the stool from falling over.
First, the bill would enact a new genetic non-discrimination act to prohibit any person from requiring an individual to undergo a genetic test or disclose the results of that test as a condition of the following: either providing goods or services to an individual, or entering into and continuing a contract or agreement with that individual. These changes are detailed through clauses 1 through 7 of the bill.
Second, the bill would amend part III of the Canada Labour Code to protect employees from being required to undergo or disclose the results of a genetic test and would provide employees with other protections related to genetic testing and test results. These changes are detailed in clause 8 of the bill.
Finally, the bill would amend the Canadian Human Rights Act to prohibit discrimination on the grounds of genetic characteristics. That is part of clause 9.
I want to make it very clear for all hon. members that the bill must pass with all of these provisions in place in order to make it effective.
During the witness testimony, we heard from a variety of witnesses. We had the Canadian Human Rights Commission, the Centre for Israel and Jewish Affairs, the Canadian Coalition for Genetic Fairness, the Canadian Association of Genetic Counsellors, the Canadian Medical Association, and the Canadian College of Medical Geneticists. We had several constitutional experts, including Bruce Ryder, Peter Hogg, Hugo Cyr, and Pierre Thibault. We also heard from the Canadian Institute of Actuaries, and had moving testimony by Dr. Ronald Cohn, the pediatrician and chief at the Hospital for Sick Children.
In particular, there are a few examples of the testimony that I want to include in my limited time.
Representatives from the Canadian Human Rights Commission have testified that if this bill were amended to contain only the clause to amend the Canadian Human Rights Act, we could not responsibly tell Canadians that they could feel free to have genetic testing without the fear of genetic discrimination. In fact, Ms. Marie-Claude Landry, none other than the chief commissioner of the Canadian Human Rights Commission, underlined this when she stated, “While changing the Canadian Human Rights Act will be a positive step for human rights, it cannot address all the concerns surrounding genetic discrimination.”
Dr. Ronald Cohn gave particularly moving testimony at the committee about young children whose conditions required genetic testing for diagnosis, but whose families felt they could not consent to the testing for fear of genetic discrimination. Without the testing, he could not properly treat these very sick children.
Dr. Cohn and over 100 genetic scientists, medical doctors, genetic councillors from universities across Canada wrote to the Prime Minister in November of last year and urged him to retain all of the key provisions of the bill as it was passed by the Senate.
The committee also heard captivating testimony from the Canadian Medical Association, the Canadian Association of Genetic Councillors, and the Canadian College of Medical Geneticists about the medical promise of genetic testing and the revolution in medicine it presented. However, the full potential of genetic testing will not be realized if people are legitimately worried about discrimination.
I want to turn to the constitutional issues. I see that the member for Edmonton Centre, who has recently joined us on the justice committee, has moved several report stage amendments to Bill 5-201. His motions call for the deletion of clauses 1 through 8, which will effectively gut the bill and turn it into nothing less than a paper tiger when it comes to protecting Canadians against genetic discrimination.
The deletion of these clauses will leave the bill with nothing more than an amendment to the Canadian Human Rights Act, which will give Canadians a false sense of security that they will not be discriminated against because of genetic testing. I pointed to this fact earlier in my speech from the testimony of the commissioner of that commission.
I have respect for the member for Edmonton Centre, but this action on his part makes me more than a little angry. These amendments flagrantly ignore the recommendations of the committee and they are an insult to the witness testimony and the hard work of that committee.
One of the main concerns of the legislation was the constitutionality of the proposed genetic non-discrimination act. In fact, the minister in a letter to the justice committee, dated November 17, 2016, outlined the government’s concerns with the aforementioned clauses. She felt that it intruded into the provincial jurisdiction over the regulation of contracts and services.
Our committee consulted with a variety of constitutional experts, one of whom was none other than the great Professor Peter Hogg. He is probably the most consulted constitutional scholar in Canada. These eminent scholars clearly held the view that the prohibitions listed in the first clauses of the bill were a clearly justified use of the federal criminal law power.
In previous rulings, the Supreme Court of Canada has held that a valid criminal law power requires (1) a prohibition; (2) a penalty, and (3) a criminal law purpose such as peace, order, security, morality, and health. Federal criminal law power against a public health evil relies on the fact that it is directed against human conduct that has a injurious or undesirable effect on members of the public.
The Chief Justice of the Supreme Court has stated that “acts or conduct that have an injurious or undesirable effect on public health constitute public health evils that may properly be targeted by the criminal law”.
Discrimination based on genetic testing does have an injurious and undesirable effect on public health. When people are too afraid to go for genetic testing because of the fears of discrimination, this does not allow physicians to do their job properly. Taking a test that could help someone’s life should not be a calculated risk.
I ask all hon. members in the House, especially my Liberal colleagues across the way, to please summon the courage to do what is right, support the bill without these amendments, listen to the hard work that the committee did, and let us do something right for Canada. Let us get rid of these amendments and pass the bill as it was passed by the Senate.
Mr. Robert Oliphant (Don Valley West, Lib.): Mr. Speaker, I want to begin my remarks today echoing the previous speaker, who was thankful for the tremendous work of the recently retired Senator James Cowan, who put his heart and his soul, his head, and his hard work into getting this bill to us today.
I also thank the members of the Senate human rights committee who spent hours getting the bill right so that it could pass there unanimously and get to this, the other place, in their words.
I thank the patients and the doctors, the parents and researchers, the advocates, legal scholars, the many health groups, and the Centre for Israel and Jewish Affairs that persisted in making sure that this bill passed at second reading and got to the Standing Committee on Justice and Human Rights, so ably chaired by the member for Mount Royal.
I thank all the members of that committee, and also the former justice minister and the member for Cowichan—Malahat—Langford, both for their remarks and for their work on the committee; and the whole committee for sending it back to this House unchanged so that we could consider it, pass it, and start making a difference in the lives of Canadians this very day. It is a rare opportunity that we in this House can actually pass a bill that will change the lives of millions of Canadians and change it for the better for sure.
Unfortunately the amendments presented by the member for Edmonton Centre would essentially gut this bill. If they are passed, they would rob it of its ability to help all Canadians and limit its effect to very few. For me, the bill as it stands right now is the only way to ensure that all Canadians, regardless of where they live, where they work, where they receive health care; and where they may face discrimination in family law, labour law, or with respect to the provision of any good or service, will not be discriminated against because of their genetic characteristics. This is a bold law. It is a 21st century law designed to combat a 21st century problem new to us since the discovery of the human genome. The proposed amendments would, as I said, make the protection envisioned in this bill so narrow and so small as to make it impotent in the face of a problem that any Canadian could be challenged with. Unfortunately, the member for Edmonton Centre is new to the justice committee. He did not have the advantage of being part of it when, after very careful consideration, the committee chose to return the bill to this House with full and complete support for every one of its clauses.
The committee considered the medical necessity of the bill, the horrendous choices faced by adults and particularly parents of young children who have to decide whether to undergo a genetic test in the face of possible discrimination. The committee members saw the social evil of failing to protect every Canadian, ensuring that we all get the best health care possible. They also considered the jurisdictional questions, and came to an all-party conclusion. I am so happy to have brought together the NDP and the Conservatives. It does not happen often enough, but it is Valentine’s Day and I am sensing some love there. This is an all-party conclusion that it is indeed within the right and the responsibility of the federal government to enact this bill.
Legal scholars appearing before the committee did not all agree, but the majority said without hesitation that they believe it is within our powers, the powers of everyone here, to pass this bill. The committee considered the concerns of the insurance industry and its fears that rates for life insurance would go up if the bill passes. The committee, however, also learned from the Privacy Commissioner, who undertook two studies and determined that “the impact of a ban on the use of genetic information by the life and health insurance industry would not have a significant impact on insurers and the efficient operation of insurance markets.”
The justice committee could have chosen to vote down each of the eight clauses that are proposed to be deleted, but it did not. The members of the committee chose to protect the integrity of all three aspects of this bill, what I have referred to as a three-legged stool, and they did that after very careful consideration of all the evidence.
Now the government is proposing to delete almost every section of the bill, including the title. How could it have reached such a different conclusion than those of our colleagues on the justice committee? The arguments that they heard at committee were different. We have heard that the argument the government has is jurisdictional, but according to Professors Bruce Ryder of Osgoode Hall; Pierre Thibault of the University of Ottawa; and the most distinguished constitutional scholar in our country, Peter Hogg, who has been cited over 1,000 times in Canadian courts including the Supreme Court of Canada, Bill S-201 is a valid constitutional exercise of federal criminal law power.
The Supreme Court of Canada has repeatedly emphasized that the criminal law power is very broad and can apply to areas that would normally be under provincial jurisdiction, especially to counter social evil.
There are many examples of the Supreme Court, which has upheld this doctrine for food and drugs, tobacco, firearms, security training, assisted human reproduction, and more.
Is genetic discrimination a social evil?
Just ask the parents who go to Toronto’s SickKids hospital. Just ask them what it is like when, as Dr. Ronald Cohn has said, parents of very sick children have been paralyzed by the fear of genetic discrimination. If a fear of discrimination is so great that it prevents a parent from having their child receive a genetic test that could save their life, is that not a social evil? This is not anecdotal. The CMA told committee that it ,“strongly supports the enactment of Bill S-201 in its entirety…. Canadians deserve to have access to the best possible health care without fear of genetic discrimination”.
Peter Hogg said, “The only conceivable purpose of [the bill] is to prohibit and prevent what Parliament would regard as the evil of genetic discrimination”.
To sum up, the Canadian Human Rights Act changes are simply not sufficient to do the job at hand. That is the only part the government would save. The act only applies to sectors and industries within federal jurisdiction.
Amending the Human Rights Act would be of little, or even of no, assistance to most Canadians who encounter or fear genetic discrimination. In fact, it could be dangerous. People could have the false assumption they are being protected, but could lose their job, could lose in a family law case, could lose benefits, could be denied insurance, or anything else that we assume should be protected under Canadian law.
Canadians want strong laws to protect their rights. They want to ensure that the federal government is taking action to protect them. The government claims that federal action alone cannot ensure the protections that stakeholders are calling for.
I support the call for additional provincial legislation, but almost every witness that the committee heard from told them that strong federal action is absolutely necessary. The federal Parliament can take action and can do so while respecting our Constitution. That is our job.
I ask members of this House to defeat these amendments, pass the bill as it stands, make a difference in the lives of Canadians, and ensure that all Canadians have the health care they deserve.
Mr. Anthony Housefather (Mount Royal, Lib.): Mr. Speaker, I rise today in very strong support of the bill as reported back by the Standing Committee on Justice and Human Rights, which I chair.
I rise today in fervent opposition to the amendments brought forward by the member for Edmonton Centre. When the member for Edmonton Centre put forward these amendments, he stated that they had not been considered by the Standing Committee on Justice and Human Rights, which is true. They had not been considered because they would have been non-receivable at committee.
One does not move at committee to strike a clause. One votes against the clause when it is before the committee. Members of the Liberal Party, the Conservative Party, and the NDP on the committee heard the evidence and all of them decided to vote in favour of those clauses, thus rejecting the proposed amendments being put forward by the member for Edmonton Centre. I can only say that I hope the House considers the hard work done by the committee and the testimony of the witnesses who appeared before committee who told us how important this legislation is.
Do members know that 12% of Canadian women will one day be diagnosed with breast cancer? That sounds horrible, but if a woman has the BRCA1 mutation, she has a 65% chance of developing breast cancer by the age of 70. If a woman has the BRCA2 mutation, she has a 45% chance of developing breast cancer by the age of 70. There is also more than a 30% increase in the chance of ovarian cancer. These are dangerous things.
Imagine, if we can, that a 35-year-old woman’s 40-year-old sister was just diagnosed with breast cancer and told that she has the BRCA1 gene. There is a history in their family of breast cancer. Their grandmother died of it, and so did their aunt. They are of Ashkenazi Jewish descent, which means they have a one in 40 chance of having this mutation, as opposed to a one in 800 chance in the general population.
There is a test available, easily accessible, to determine whether a woman has the BRCA mutation. It would stand to reason, would it not, that a woman would have this test done. After all, if she found out she was negative, she would breathe a huge sigh of relief, and if she found out she was positive, she could take preventive action. She could get enhanced screening. She could go on the birth control pill, which reduces the chance of developing breast cancer. Alternatively, she could have a radical mastectomy, which drastically reduces a woman’s risk of getting breast cancer. There are other types of surgery as well.
It would stand to reason that it would be an easy decision, but in Canada, the decision is not so easy. The Standing Committee on Justice and Human Rights and the Senate committee before it heard testimony from people in this situation who chose not to have the screening. Among the reasons was that if a woman was looking for a job, she was afraid that a future employer would not hire her if she disclosed the result of this genetic test. A woman may have young children and be worried she would not get life insurance, disability or long-term care insurance or the insurers would charge her prohibitive rates which she could not pay. Women would worry knowing they have this gene merely because of discrimination, not only for them but close family members, perhaps their children.
Canadians should never have to worry about a decision that could save their lives. Medical professionals who testified before the justice committee said that a significant number of people in this situation refuse to be tested, like the 35-year-old woman I just described in getting a job, getting insurance, and then dying of breast cancer at age 40 because she was not screened for the gene and did not take preventive measures.
People should not die in Canada because they are afraid to take a genetic test. This does not happen in other countries. Laws exist to prohibit genetic discrimination in most of the western world. Criminal sanctions exist to prevent this in France, Austria, Germany, Norway, and Israel, among other countries.
The law before us seeks to amend the Canadian Human Rights Act and the Canada Labour Code, and to attach criminal penalties to require someone to submit to a genetic test or disclose results of a genetic test. The goal here needs to be to protect people across the country. The amendments to the Canadian Human Rights Act that the government supports are very nice, but they only apply to federal matters. This would leave the vast majority of Canadians unprotected. We need to be able to reassure Canadians from coast to coast to coast that they should not be afraid to get genetic testing for diagnostic or predictive reasons.
In order to prevent the social evil of genetic discrimination, we need to make use of Parliament’s criminal law powers. Protecting people here is not an insignificant issue. As of November 2014, there were over 24,000 tests for over 5,000 conditions, and these are increasing exponentially.
Genetic tests will allow Canadians to live longer and healthier lives. Of all the witnesses that came before our committee, the vast majority were in favour of the law: medical associations, genetic associations, the Privacy Commissioner, and the Chief Commissioner of the Canadian Human Rights Commission. The only ones who disapproved were the insurance industry and the actuaries. Yet they have known about this concern for years and have done nothing to help resolve it.
Those who vote to defeat the amendments and support the law as drafted will be doing the right thing when it comes to policy.
Of course, the government has raised a separate issue that I want to deal with. It argues that the law is unconstitutional, as it seeks to regulate contracts and insurance companies, which fall under provincial jurisdiction. This position has been refuted by the majority of experts who testified before both the Senate and House committees, which included such luminaries as Bruce Ryder, Pierre Thibault, and Canada’s foremost constitutional expert, Peter Hogg, who has been cited in over 1,000 court decisions.
Federal criminal law power falls under section 91(27) of the Constitution Act of 1867. The leading case to define the criminal law power was the Margarine reference of 1949. In that case, Justice Rand, of the Supreme Court of Canada, said that a law passed using Parliament’s criminal law powers has to have as its dominant characteristic the putting in place of prohibitions coupled with penalties for a criminal public purpose, such as preserving peace, order, or security, or promoting health or morality. The court, importantly, recognized that social evils change over time and that Parliament has to be able to deal with them under the criminal law power.
In fact, over the last several decades, the court has emphasized that this is the broadest and most flexible of Parliament’s powers, and we have used it in such varied areas as the Food and Drugs Act, the Tobacco Act, the Canadian Environmental Protection Act, and securities legislation. In the Assisted Human Reproduction Act reference several years ago, the court upheld very similar provisions criminalizing cloning or payment to surrogates.
I want to say that I saw the letter from the Province of Quebec, which cites only this one case to say that it may be unconstitutional, when in fact, that very reference came to exactly the opposite conclusion where the criminal law powers were upheld.
It is clear to me that the pith and substance of this law is to prevent the evils of genetic discrimination and not to regulate the insurance industry, which is not even referenced in the bill.
I want to cite Peter Hogg’s brief, where he states:
A valid criminal law involves three elements: (1) a prohibition, (2) a penalty, and (3) a typically criminal purpose. In the proposed Genetic Non-Discrimination Act, all three ingredients are present. There is a prohibition of genetic discrimination, a penalty for breach of the provision, and the only purpose is to prohibit and prevent the evil of genetic discrimination.
Mr. Hogg concludes: “I agree completely…that the proposed law would be a valid exercise of Parliament’s criminal-law power”.
When there is a dispute or debate about constitutionality related to criminal law in Canada, I would prefer to cite Peter Hogg over anyone else.
In conclusion, I strongly support the bill. I think it is right when it comes to policy. I think it is right when it comes to the question of federal-provincial relationships. Someone needs to take the lead in this country to prevent genetic discrimination. Let it be this Parliament.
The Assistant Deputy Speaker (Mr. Anthony Rota): The time provided for the consideration of private members’ business has now expired, and the order is dropped to the bottom of the order of precedence on the Order Paper.
Senate
Transgender Rights – C-16
Second Reading
On the Order:
Resuming debate on the motion of the Honourable Senator Mitchell, seconded by the Honourable Senator Fraser, for the second reading of Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code.
Hon. Peter Harder (Government Representative in the Senate): Honourable senators, I am rising today to speak to Bill C-16, which seeks to recognize the situation of transgender and other gender-diverse Canadians, make them less vulnerable, and affirm their equal status in our society. More specifically, Bill C-16 adds gender identity and gender expression to the list of prohibited grounds of discrimination set out in the Canadian Human Rights Act. These grounds currently include race, religion, age, sex, sexual orientation, and physical or mental disability.
Bill C-16 also amends the Criminal Code to add gender identity or expression to the definition of “identifiable groups” for the purposes of hate propaganda offences and to the list of aggravating circumstances to be considered when imposing sentences for crimes motivated by hate.
In simpler terms, within federal jurisdictions, Bill C-16 means that transgender and gender-diverse individuals will be treated in the same manner as other individuals. Anyone who publicly or wilfully incites hatred, or spreads hatred against these persons commits a criminal offence, with latitude given for freedom of speech, for example to express a religious opinion.
It is urgent that we pass Bill C-16 because this is a matter of human rights. What I mean by this is that in passing the bill we will legally satisfy the moral obligation to respect the dignity, freedom, and security of transgender and gender-diverse individuals. Unfortunately this group of people have been disproportionately affected by crimes motivated by discrimination and hate in Canada. These vulnerable Canadians all too often live in fear of harassment, abuse and prejudice.
Prejudice, like the denial of fair opportunities in the workplace, or being made to feel judged and unwelcomed in spaces like schools, stores, restaurants, and so many other places where most of us take access and peace of mind for granted, is unacceptable. Prejudice is unacceptable.
In my personal view, the legal protections afforded transgender individuals by Bill C-16 are morally required and long overdue. As Senator Mitchell told us, Parliament first considered similar legislation in 2005, more than 10 years ago. As Senator Petitclerc told us, nine provinces and the Northwest Territories have gender identity protections in their human rights legislation.
Honourable senators, transgender Canadians have waited too long for safety and respect under our national laws. For that reason, I would urge this chamber to expeditiously move Bill C-16 to committee. The time has come.
This bill arrived in the Senate in November, and it is now February. There has been ample opportunity for all senators to join debate at second reading. We must not fall into the habit of allowing months to pass with the expectation that adjournments are sacrosanct. We must remember that each day a bill like this is adjourned, justice is denied.
To reinforce this point, I would reference the remarks of the Minister of Justice in the other place at second reading. Minister Wilson-Raybould described some of the challenges trans persons face as a result of discrimination. For example, in 2009 and 2010, the Trans PULSE Project studied the experiences of approximately 500 trans individuals in Ontario. This group reported significant employment barriers, with 13 per cent having been dismissed and 18 per cent having been refused work because they were trans; simply trans.
In light of these barriers, it is understandable that underemployment is a major problem for trans persons, who have a median income of only $15,000, despite relatively high levels of post-secondary education.
In addition, the minister told the other place that more than half of trans persons in Ontario have symptoms consistent with clinical depression, and a shocking 43 per cent of trans adults in Ontario have attempted suicide, including 10 per cent in the last year.
We should be especially concerned for trans and gender-diverse youth. A 2011 national survey by Egale Canada on homophobia, biphobia and transphobia in Canadian schools revealed troubling results. Among trans students, 74 per cent reported verbal harassment, 49 per cent reported sexual harassment, and 37 per cent reported physical harassment related to their trans identity. More than half of the trans youth reported feeling unsafe in change rooms and washrooms. That’s not right. In Canada, we must and can do better.
Passing Bill C-16 will make important legal changes to prevent and remedy discrimination and to deter and condemn the incitement of hatred. And socially, Bill C-16 will signal to trans and gender-diverse Canadians — and to all Canadians — that we are all equal in our human dignity and before our Creator.
This is an urgent message, and we need to send it as loudly and as quickly as possible to Canada’s trans and gender-diverse community. You matter, you belong, and Parliament and this Senate have your back.
We all welcome vigorous debate on Bill C-16, but I think we also recognize that to hold an adjournment is not to engage in sober second thought. Adjourning bills can be used as a mechanism of delay, and such practice does not do our institution credit. Canadians expect us to work as hard and as diligently as they do, to speak on these matters and to move business forward. Our chamber must deliberate, of course, but we must also decide. In situations where the critic of a bill does not speak within a reasonable time frame, the Rules ultimately afford this chamber remedies to move forward the people’s business and ought to be used.
I would like to thank Senator Mitchell for sponsoring this legislation and for being a tireless advocate for transgender Canadians over the years. I would also like to thank other senators in this chamber who have added their voices to the debate, including Senators Duffy, Mercer, Jaffer, Dupuis and Petitclerc. Thanks as well to all senators for taking the time to consider this important legislation and I urge this chamber to move this bill to committee without delay.
Trans and gender diverse Canadians have waited too long for respect and safety under our laws, and the Senate must not keep them waiting any longer. Let’s vote.
Hon. Yonah Martin (Deputy Leader of the Opposition): I assure the chamber that my taking adjournment is not to delay, but that there are senators who do wish to speak to this, and understanding the importance of this bill, I adjourn for the remainder of my time.
Senator Mitchell: When is he going to speak?
Senator Martin: Senator Plett is not here at this time, but there are senators who wish to speak. We discussed that, and I have a list of senators who do wish to speak.
(On motion of Senator Martin, debate adjourned.)
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