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Genetic discrimination private member’s bill pits Grit backbenchers against cabinet

By Rachel Aiello      

Justice Minister Jody Wilson-Raybould wants the Senate private member's bill amended, but hasn’t convinced independent Liberal Justice Committee members.

Last week, Justice Minister Jody Wilson-Raybould sent a letter to the House Justice Committee outlining her opposition to Bill S-201 and explained the government's rationale for amendments that will effectively gut the bill. The Hill Times photograph by Jake Wright

A Senate private member’s bill seeking to introduce first-ever nationwide penalties against genetic discrimination has pitted Liberal MPs against the government as Justice Minister Jody Wilson-Raybould pushes hard for amendments to Bill S-201.

The government says the bill is unconstitutional, but government backbenchers say they haven’t heard good arguments from their own government on why that it is and some say they’re hearing from constituents who support the private member’s bill.

Moreover, citing recent examples of Liberal backbenchers pushing back to protect private members’ bills and business, members of the House Justice Committee say they aren’t feeling pressure to toe the government line.

“Personally, I really have to be convinced that portions of this bill are not constitutional and I haven’t been convinced yet,” said Liberal MP Chris Bittle (St. Catharines, Ont.), a member of the House Justice Committee.

Mr. Bittle said while it may be “a source of frustration for certain departments if bills don’t pass,” the recent flexing of backbench muscle without consequence “shows that the government is committed to a more open Parliament.”

Senate Liberal Sen. James Cowan’s (Nova Scotia) Bill S-201, Genetic Non-Discrimination Act, would ban unsanctioned access to view or disclose personal genetic test results or require a person take a genetic test, including employers and insurance companies. Doing so would result into large financial penalties or jail time. Exceptions would be made for medical, scientific, or pharmaceutical purposes. The bill would also amend the Canada Labour Code and the Canadian Human Rights Act to protect against the disclosure of genetic tests and it would prohibit discrimination on the grounds of genetics. 

The same day the bill passed second reading with unanimous consent of the House on Oct. 26, two Liberal private members’ bills: Bill C-240, An Act to amend the Income Tax Act (a tax credit for First Aid training), sponsored by Liberal MP Bryan May (Cambridge, Ont.); and Bill C-243, a bill to create a National Maternity Assistance Program Strategy Act, sponsored by Liberal MP Mark Gerretsen (Kingston and the Island, Ont.), passed second reading with the support of Liberal votes and despite the government’s opposition to the bills.

Grit MPs said the government needs to listen to the Liberal caucus.

“Because caucus members are listening to people in their ridings every day. That’s what we do and we don’t get the benefit of policy analysis and bureaucrats who have been in the government for 10, 20, or 30 years. We don’t have that benefit, we also don’t have that hindrance,” said Liberal MP Rob Oliphant (Don Valley West, Ont.), the House sponsor of Sen. Cowan’s bill.

Mr. Oliphant said he’s hoping the government has a “white flag moment … and they’re going to say, ‘This is the right legislation.’”

Mr. Oliphant said he thinks it would be a “good news story about the way Parliament should work.”

But the jury is still out. 

“I understand the government’s position, but, as a committee that’s independent, we have to come up with our own determinations on these things,” said Liberal MP Colin Fraser (West Nova, N.S.), another member of the House Justice Committee, said following Thursday’s meeting.

The opposing positions started to become clear last week over the course of two meetings of the House Justice and Human Rights Committee.

Liberal MP Sean Casey (Charlottetown, P.E.I.), parliamentary secretary to Ms. Wilson-Raybould (Vancouver Granville, B.C.), first conveyed the government’s opposition to Sen. Cowan’s bill during debate at second reading in the House on Sept. 20. As well, the government made its position clear in the “bill kit” distributed to Liberal MPs that same day.

“The government recommends deleting certain parts of the bill to ensure that federal legislation does not intrude into areas of provincial jurisdiction and to address policy concerns,” the bill kit reads.

Ms. Wilson-Raybould also backed up the government’s opinion last week in a letter to the House Justice Committee, saying the government is opposed to the bill passing in its current form.

On Nov. 15, the committee heard from both Sen. Cowan and Mr. Oliphant who both argued in support of the constitutionality of the legislation.

“The government is committed to evidence-based decision making and I think that the committee members, I believe, that they will listen carefully to the evidence and I hope and I believe that the evidence will convince them, as it’s convinced me, that this is the right way to go,” Sen. Cowan said in an interview with The Hill Times last Tuesday following the committee meeting.

Bill S-201 passed the Senate on April 14, with some technical amendments made by the Senate Human Rights Committee which Sen. Cowan did not object to. Sen. Cowan has tried to get similar bills passed twice before, once in 2013, and again in 2015. Both times, the bills died on the Order Paper.

Both the Conservative and NDP committee members made it clear in their questioning during Tuesday’s Justice Committee meeting that they’re supportive of the bill in its current form.

NDP MP Alistair MacGregor (Cowichan-Malahat-Langford, B.C.), who was backed up Conservative MP Rob Nicholson (Niagara Falls, Ont.), said he was concerned about the potential dangerous territory the government is getting into by approaching Liberal members with proposed amendments it wants to make.

“Hearing that gives me a sense of déjà vu with you two [Sen. Cowan and Mr. Oliphant] because of what you went through with Bill C-14, it feels like here we are again,” Mr. MacGregor said, referencing that earlier in this Parliament both Mr. Oliphant and Sen. Cowan pushed back on the government’s limitations in Bill C-14, on physician-assisted dying.

“Governments are funny animals, they want to do things their way. No government particularly likes private members’ bills or public bills from the Senate. They want to control the agenda,” Mr. Oliphant told The Hill Times.

Liberal MPs on the committee say they’ll consider amendments if a convincing argument is made for the unconstitutionality of the bill, but as Mr. Bittle put it, “in the absence of that I think Canadians deserve robust protections against genetic discrimination.”

On Thursday, the House Justice Committee heard from two Justice Department officials—Laurie Sargent, deputy director general and general counsel, Human Rights Law Sector, Public Law and Legislative Sector; and Laurie Wright, assistant deputy minister, Public Law and Legislative Services Sector. The committee also reviewed Ms. Wilson-Raybould’s letter explaining the government’s position.

The government says it’s supportive of the amendments to the Canada Human Rights Act, but not to changing the Canada Labour Code and does not want to create penalties under the proposed Genetic Non-Discrimination Act, arguing that it’s concerned with the constitutionality of the changes because of the possible impediment on provincial jurisdiction.

The government would want to remove two-thirds of the bill’s content and rewrite the laws itself on genetic discrimination in collaboration with the provinces.

Mr. Casey told The Hill Times he hopes any changes to the bill would reflect what the committee hears and that the government isn’t prejudging the outcome, “but the government will want their issues of concern to be thoroughly canvassed. … The government has a responsibility to and members have a responsibility to uphold the Constitution.”

Staff from both Ms. Raybould-Wilson’s office and the Department of Justice also sat in on the House Justice Committee meetings.

Critics, primarily in the insurance industry, argue that withholding genetic information would increase the cost of life insurance premium rates and would hike the cost of critical illness insurance. Those in favour of the bill argue that it’s necessary to protect Canadians from being disadvantaged as a result of a genetic predisposition.

Sen. Cowan said he’s worked with the insurance industry stakeholders, but also said the proposed law is not about the insurance industry which is not directly mentioned in the legislation.

However, it’s clear the government still has concerns about the insurance industry launching a constitutional challenge.

On Thursday, Mr. Casey asked the Justice Department officials what would happen if the government is put in the position of having to defend a bill in court it doesn’t support and described it as “inevitable.”

Ms. Wright said it would not be unusual for the government to be in this position.

MPs say the much-anticipated testimony from constitutional experts Peter Hogg and Bruce Ryder on Tuesday, Nov. 22, will be the deciding factor on whether the bill should be amended or not. It’s expected the two will argue that Bill S-201 as drafted, is constitutional.

Liberal MP Anthony Housefather (Mount Royal, Que.), chair of the House Justice Committee, told The Hill Times in an email that it will be up to the members to determine if they have heard what they need to proceed, but said his sense is the committee will move to its clause-by-clause review of the legislation by Nov. 29. Once the bill is out of committee, it will face a final test with a vote at third reading.

This week, MPs will debate Bill C-30, the CETA Implementation Bill, at second reading Monday, Tuesday, and Wednesday, and will vote that day to send it to committee. On Thursday, the House will debate Bill C-23, the Pre-Clearance Act, from Public Safety Minister Ralph Goodale (Regina-Wascana, Sask.), and Bill C-18, the Rouge National Park Protection Bill, from Environment Minister Catherine McKenna (Ottawa Centre, Ont.) will come up on Friday.

The Hill Times 

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