OTTAWA — The Trudeau government is in the bizarre position of preparing to go to the Supreme Court to argue against a federal law passed with the support of its own MPs.
That’s the result of Justice Minister Jody Wilson-Raybould’s announcement that the government intends to seek the top court’s advice on the constitutionality of a bill aimed at preventing genetic discrimination.
More than 100 Liberal backbenchers joined Conservatives and New Democrats to give final approval to the bill Wednesday, despite warnings from Wilson-Raybould and Prime Minister Justin Trudeau that it is unconstitutional.
“This is certainly an odd situation,” says University of Waterloo political scientist Emmett MacFarlane, who specializes in constitutional law and the top court.
“I cannot think of a past reference case that meets this set of circumstances: Parliament passing a bill against the wishes of a government that holds a parliamentary majority and a government that will be arguing against the constitutionality of a federal exercise of power.
“It is almost certainly unprecedented.”
The bill is aimed at ensuring that Canadians can get genetic tests to help identify health risks and take preventive measures, without fear that they’ll be penalized when it comes to getting a job or life and health insurance.
It would make it illegal to require a person to undergo genetic testing, or disclose the results of previous tests, as a condition of signing or continuing an insurance policy or any other contract or agreement.
It would also prohibit anyone from sharing genetic test results without written consent, although there are exceptions for physicians and researchers.
In an interview with AdvocateDaily.com, Toronto employment lawyer Doug MacLeod says it appears Canadian and American politicians are taking diametrically opposing positions on permissible uses of genetic testing.
“In Canada, a private member’s bill would make it illegal to require a person to undergo genetic testing, or disclose the results of previous tests, as a condition of signing or continuing an insurance policy or any other contract or agreement,” says MacLeod, principal of MacLeod Law Firm.
“In the U.S., the House of Representatives has passed a bill that would, according to the Washington Post, undermine basic privacy provisions of the Americans With Disabilities Act and the 2008 Genetic Information Nondiscrimination Act. In particular, the bill would allow employers to impose penalties of up to 30 percent of the total cost of the employee’s health insurance on those who choose to keep such information private. This bill has not been considered by the U.S. Senate.”
MacLeod adds he doesn’t believe the level of apparent discrimination in U.S. bill would ever be reflected in Canadian law.
Wilson-Raybould maintains the bill amounts to an unconstitutional use of the federal criminal law power to intrude into provincial jurisdiction to regulate the insurance industry, which is fiercely opposed to the legislation.
Liberal MPs who supported the bill don’t seem overly upset that their own government, which gave them the freedom to vote as they pleased on it, is now intent on challenging their decision.
“Either way, we already knew with statements having been made by the insurance industry that somebody was going to challenge the constitutionality of the law,” said Anthony Housefather, Liberal chair of the justice committee that refused to amend the bill to suit the government after hearing expert testimony that it was constitutional.
Having the federal government refer the matter directly to the top court “means that we will have an answer from the Supreme Court far faster than if a challenge is started in a lower court by industry or by someone,” he said in an interview, echoing the view of other Liberal backbenchers.
The last reference, on Senate reform, took just over a year for the Supreme Court to render an opinion. A previous reference on Quebec secession took two years.
Wilson-Raybould has said she’ll wait until the “parliamentary process” is concluded before referring the bill to the court. Housefather and other Liberal MPs assume that means the bill will be enacted after it clears one remaining hurdle in the Senate, which has already unanimously approved the bill but must agree to one minor amendment made by the House of Commons.
However, that is not entirely certain.
Parliamentary procedure expert Ned Franks said it would be possible for the government to let the bill languish, without requesting that it receive royal assent from the governor general, while the top court is mulling over its constitutionality.
And in that circumstance, should the court fail to render an opinion before the next election in the fall of 2019, the bill would die.
“There are records of bills getting right through (Parliament) and never getting royal assent, sitting around for years,” Franks said in an interview.
In Housefather’s opinion, the court reference shouldn’t be used to delay royal assent.
While he’s unperturbed at the idea of referring the constitutionality of the bill to the top court, Housefather does have one proviso: someone must make a “clear and convincing case” that the legislation is constitutional.
Ordinarily, the federal government would be expected to make that case about a federal law. But how could it do so in this instance?
“Clearly, somebody has to make that argument (that it is constitutional)… I guess I have difficulty seeing how the federal government would go to court arguing a law that was adopted by the federal Parliament is not constitutional,” said Housefather.
“I can see them referring the question but would they then take the position before the court that it’s not? It’s interesting. We’re all in unknown waters.”
MacFarlane said the case for the bill will likely have to come from interveners or, barring that, the court will have to appoint an amicus curiae, a friend of the court, to ensure both sides get a fair hearing.
“I’m not sure how anything other than an amicus curiae or some third-party intervener is an option for presenting arguments that the bill is constitutional,” he said.