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Oliphant calls it a victory for Parliament, Grit backbenchers defy government to pass Genetic Discrimination Bill

By Rachel Aiello      

The Senate private member’s Bill S-201 pitted Liberal MPs against the government, and with a free vote, the backbench rallied-against the party line, defeating the government's amendments to essentially gut the bill.

Justice Minister Jody Wilson-Raybould, pictured in this file photo on the Hill, pushed hard for amendments to the legislation which critics said would have gutted Bill S-201.
The Hill Times photograph by Jake Wright

PARLIAMENT HILL—The Senate private member’s bill S-201, which seeks to introduce the first-ever nationwide penalties against genetic discrimination and which has pitted some Liberal backbenchers against its own government as Justice Minister Jody Wilson-Raybould has pushed hard for amendments—passed third reading, without the government’s desired changes.

The report stage and third reading vote on the proposed changes, which were criticized for essentially gutting the bill, happened on Wednesday evening in the Commons, and with the will of backbench Liberal MPs and the opposition caucuses, the bill passed by a vote of 222 to 60.

Speaking to The Hill Times after the vote, Liberal MP Rob Oliphant (Don Valley West, Ont.), the House sponsor of the legislation, called it a victory for Parliament, and for the relevance of the Senate. He said he was concerned after the government’s strong and “emotional” plea for support earlier on Wednesday.

The government, including Prime Minister Justin Trudeau (Papineau, Que.) said on March 8 that the bill was unconstitutional, an argument that apparently held little weight with the dissenting Liberal backbenchers and opposition benches.

At numerous stages of study and debate before the Commons, the government, through Ms. Wilson-Raybould (Vancouver Granville, B.C.) and various parliamentary secretaries, tried to claw back two of the three main pillars of the bill, and ultimately presented the amendments at report stage that were defeated today.

The bill, originally sponsored by now-retired Senator Jim Cowan, 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.

Violating the new act would result in large financial penalties or jail time. The legislation allows for exceptions, including 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. 

Mr. Cowan, who retired from the Senate on Jan. 21, was in the House Chamber for the vote. He 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. When the first bill was brought forward, there were about 2,000 different genetic tests available, and now there’s just under 40,000.

Last week, Ms. Wilson-Raybould sent letters to the Council of the Federation and to all provincial and territorial justice ministers, requesting that all provinces and territories weigh in on the constitutionality of Bill S-201, while defending her position to significantly change the proposed legislation.

Canada’s 13 provincial and territorial premiers are members of the Council of the Federation, which promotes interprovincial-territorial cooperation. Ms. Wilson-Raybould has said that the governments of Quebec, Manitoba, and British Columbia had communicated with her office, voicing concerns over the legislation and its implications for provincial jurisdiction over discrimination.

Ultimately, the council did not respond to Ms. Wilson-Raybould’s letter, and no further arguments were made by the government to bolster its issues with the bill during the last hour of debate on Tuesday evening.

In defending her desire for the bill to be gutted, Ms. Wilson-Raybould told reporters in the foyer of the House on Wednesday: “I have and our government maintains concerns about the constitutionality with respect to the first part of the bill.” She went on to say that the government already has “overwhelming support” to ensure that the government can “address genetic discrimination in a comprehensive way, and that we do it in terms of the federation that we have—and the relationships that we have with the provinces and territories. But, it’s a fundamentally important issue, and S-201 has elevated it to a national discussion and that’s important.”

Her argument against the bill was that it impedes on the provinces’ and territories’ ability to decide for themselves what regime works best for addressing genetic discrimination, and was worried about the potential of a court challenge would come from the insurance industry if the bill passed.

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.

Throughout the study process, Liberal supporters of the bill pointed to top constitutional experts’ testimony defending the bill and said they had yet to hear a compelling argument against it.

Having listened to the top constitutional scholars in the country at committee, I respectfully disagree with the government. I have heard from the medical community and the fear of genetic discrimination (the use of genetic test results to discriminate against you) is real in Canada. People are ignoring medical advice, not getting genetic tests and not participating in drug trials (which usually require a genetic test). Canadians’ health is being risked and I believe we must take action,” wrote Liberal MP Chris Bittle (St. Catharines, Ont.) in a Facebook post directed to constituents, explaining why he’d be voting against the government on March 8.

The bill will still have to be sent back to the Senate since during its study the House Justice and Human Rights Committee voted 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.

Mr. Oliphant said he hopes the strong vote of support for the bill will send a message to the Senate, and that they will consider the amendment but send the bill off to receive royal assent without getting into debate. He said this will be the last leg of work required to see this bill through.

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.

Update: According to the The Hill Times‘ analysis of the final vote tally, 100 Liberal MPs voted against the government to defeat the proposed amendments, and 104 Liberal MPs voted to support it passing at third reading. Among the MPs who pushed back on the party line were a dozen Liberal parliamentary secretaries, who had a free vote for the bill. The Conservative and New Democrat caucuses voted in support of the bill, while Bloc Québécois sided with the government.

The Hill Times 

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