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Government attempting to ‘gut’ genetic discrimination bill once again

By Rachel Aiello      

The Bill's House sponsor, Rob Oliphant, called the amendments ‘draconian,' while opposition parties and Liberal backbenchers are imploring their colleagues to have the ‘courage’ to go against the government’s will.

The proposed amendments, which would remove clauses two-through-eight, are in-line with what Justice Minister Jody Wilson-Raybould and the Liberal government—through its bill kit on Bill S-201—have been calling for all along.
The Hill Times Photo by Jake Wright

The government, undeterred by the will of the House Justice Committee and members of its own caucus to move forward with Bill S-201, is taking another crack at trying to amend it, essentially gutting the legislation.

The Senate private member’s bill from now-retired senator James Cowan is seeking to introduce first-ever nationwide penalties against genetic discrimination. On the evening of Feb. 14, when the bill was called for debate in the House at report stage, the government—through Liberal MP and special adviser to the Prime Minister on LGBTQ2 issues, Randy Boissonnault (Edmonton Centre, Alta.)—brought forward a series of amendments that would drastically reduce the scope and teeth the legislation would have.

This move surprised the opposition in the House and has even has some Liberal backbenchers calling on their Grit colleagues to have the “courage” to go against the government’s will. One of those outspoken critics is the House sponsor of the bill, Liberal MP Rob Oliphant (Don Valley West, Ont.)

In an interview with The Hill Times this earlier today, Mr. Oliphant said that he saw the amendments on the notice paper ahead of the debate, and had been told all along that the government would try to gut the bill, he was still shocked by the “little bit draconian” way the government is seeking to delete large chunks of the bill, instead of attempting to tweak them with amendments.

“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,” Mr. Oliphant said in the House.

The bill, as it was written, seeks to introduce the first-ever nationwide penalties against genetic discrimination by banning unsanctioned access to view or disclose personal genetic test results or require a person take a genetic test, including employers and insurance companies by referencing the proposed  genetic non-discrimination act. Doing so would result in 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 government’s eight amendments would remove the short title of the bill, as well as clauses two-through-eight, which covers the creation of the new act and the Canada Labour Code changes. These amendments, if passed, would mean the bill would simply change the Canadian Human Rights Act to include genetic discrimination. The proposed amendments align with what Justice Minister Jody Wilson-Raybould (Vancouver Granville, B.C.) has been calling for all along.

Now, Mr. Oliphant is turning his focus to the list of Liberal MPs he hopes to get on his side to defeat the government amendments when the legislation comes up for the second hour of debate, currently scheduled for April 4. After confirming the support of the opposition, which he did through meetings with the Conservative caucus this morning, and the New Democrats last night, Mr. Oliphant said he is “cautiously optimistic” that he’s got enough support inside the Liberal caucus to tip the vote in favour of axing the government’s amendments.

Private member’s bills are open to free votes in the House for government MPs.

“I feel very strong support from caucus…I think many Liberals will support the bill without amendments,” he said, adding that he’d heard from one Liberal MP today—who he did not name—that told him they’d been approached by the government to make a speech against the bill, but declined.

“I think this is a winner of a bill, I think its got good policy, I think its got good politics, and I think it’s good law. So I think MPs will look good if they support it,” Mr. Oliphant said.

As to why he thinks the government has been so persistent in pursuing these amendments, he said it could be that Cabinet wants to tread lightly on areas of shared jurisdiction, given the number of ongoing jurisdictional negotiations with the provinces, and by putting forward these changes the government can tell the provinces they tried. He also noted the strong insurance lobby—both provincially and federally.

Currently, according to the lobbyist registry, there are four organizations registered to lobby on Bill S-201, including Manulife Financial, and the Canadian Life and Health Insurance Association Inc; while several more, including 23andMe, Inc., had been registered to lobby on this in the past.

In putting forward the amendments Mr. Boissonnault said while he supports the “intent” of Bill S-201, he argued the bill is unconstitutional on the grounds of provincial jurisdiction over the insurance industry, and referenced letters received from the provincial governments in Quebec, Manitoba, and British Columbia asking for this to remain provincial jurisdiction. Concern has also been voiced that a court challenge would come from the insurance industry if the bill passed.

Mr. Boissonnault said changes to the Canadian Human Rights Act should be supported.

However, Mr. Oliphant sees it differently. “That’s three out of 13 in the country. Ten out of the 13 have not issued a letter. So, to say that the provinces and territories are against the bill is really overstating the case,” Mr. Oliphant said.

During the debate, he was supported by the chair of the House Justice and Human Rights Committee, Liberal MP Anthony Housefather (Mount Royal, Que.) who said he is in “fervent opposition to the amendments brought forward,”  and then implored members to consider the work already done and testimony received by the committee on the legislation.

“Those who vote to defeat the amendments and support the law as drafted will be doing the right thing when it comes to policy… Someone needs to take the lead in this country to prevent genetic discrimination. Let it be this Parliament,” said Mr. Housefather.

Mr. Oliphant said he’s spoken with former senator Cowan about the latest development on the bill, who offered his thanks to the MPs that have spoken out against the amendments, including Liberal MP Jennifer O’Connell (Pickering-Uxbridge, Ont.) who said she supports the bill without the proposed amendments.

Mr. Cowan, who retired from the Senate on Jan. 21, had tried to get similar bills passed twice before: once in 2013, and again in 2015. Both times, the bills died on the Order Paper. Mr. Oliphant noted that when the first bill was brought forward, there were about 2,000 different genetic tests available, and now there’s just under 40,000.

Both Conservative justice critic Rob Nicholson (Niagara Falls, Ont.) and New Democrat justice critic Alistair MacGregor (Cowichan-Malahat-Langford, B.C.) rose to speak and defend the bill.  Mr. MacGregor stated that the government’s amendments would leave Canadians with a “false sense of security that they will not be discriminated against.”

He added: “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,” he said.

Mr. Nicholson said it’s an opportunity for all members, party aside, to “stand up and do the right thing.”

Earlier this Parliament, the government implored the House Justice and Human Rights Committee to amend the bill to respond to the jurisdictional concerns, but when it came time for clause-by-clause consideration, Liberal MPs on the committee said they had not heard strong enough arguments against the constitutionality of the bill. In the end, they didn’t change the substance of the bill, and said they were validated in their position by a number of constitutional expert witnesses, including Peter Hogg, a leading authority on constitutional law.

However, the committee did vote to add a co-ordinating amendment that aimed at protecting the intent of both Bill S-201 and Bill C-16, the government’s trans rights bill. The two bills propose to amend the same section of the Canadian Human Rights Act. This amendment would ensure that both genetic discrimination and gender identity would be listed as prohibited grounds for discrimination, and not one or the other, depending which bill passed first.

“Based on the evidence we heard, we passed a bill that is a good bill and I don’t believe that the risk of a problem constitutionally is very high,” said Liberal MP Colin Fraser (West Nova, N.S.) at the time.

If this amendment, or any of the proposed government amendments pass, the bill will have to be sent back to the Senate.

“I think you’ll see that in the end, MPs will be standing up for their constituents, which is what we’re supposed to do when we make laws,” said Mr. Oliphant.

*Correction: An earlier version of this story stated that Liberal MP Jennifer O’Connell supported amending the bill, when in-fact, according to her office, she supports Bill S-201 without the government’s proposed amendments.

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