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Wilson-Raybould requests formal feedback from provinces, territories on genetic discrimination bill

By Rachel Aiello      

The Canadian government cited lack of provincial support for Bill S-201 when proposing amendments that would essentially gut the legislation.

Justice Minister Jody Wilson-Raybould has sent a letter to the provinces and territories asking for feedback on Bill S-201, and the government's proposal to gut the controversial genetic discrimination bill. The original legislation has the support of some Liberal backbenchers, as well as the opposition. The Hill Times photograph by Jake Wright
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Justice Minister Jody Wilson-Raybould sent a letter to the Council of the Federation Wednesday, requesting that all provinces and territories weigh-in on the constitutionality of the genetic discrimination Bill S-201, while defending her position to essentially gut the proposed legislation.

Ms. Wilson-Raybould (Vancouver Granville, B.C.) has raised issues with the potential constitutionality of the legislation, called the Genetic Non-Discrimination Act, on numerous occasions and is now asking all regions to formally provide feedback before the bill is next scheduled for debate on March 7 and 8 in order “to inform parliamentary debate,” the letter reads.

This request to have all the provinces and territories air their views could be viewed as a strategic move, as the government attempts to persuade Liberal MPs to vote in support of the amendments it has proposed, something it hasn’t yet been able to find much traction for.

“Given the important constitutional issues in play, we call on the Council of the Federation to communicate its views on the constitutionality of Bill S-201’s proposal to regulate all contracts, agreements, and goods and services to prohibit genetic discrimination,” Ms. Wilson-Raybould writes in the letter, provided to The Hill Times by the minister’s office.

Last month, the government—undeterred by the will of the House Justice Committee and members of its own caucus to move forward with Bill S-201 as is—took 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 the 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 Randy Boissonnault (Edmonton Centre, Alta.), also a special adviser to the prime minister on LGBTQ2 issues —brought forward a series of amendments that would drastically reduce the scope and teeth of the legislation.

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. 

In Wednesday’s letter to the Council of the Federation, Ms. Wilson-Raybould wrote that, given that protection against discrimination is part of an “interlocking scheme of federal-provincial-territorial legislation,” she is in favour of the proposed amendments to remove the short title of the bill, delete the creation of the new act and the Canada Labour Code changes, and only change the Canadian Human Rights Act to include genetic discrimination.

“I am confident that we can add the prohibition of genetic discrimination to that proud human rights heritage,” said Ms. Wilson-Raybould in the letter. In it, she also noted that the governments of Quebec, Manitoba, and British Columbia have written to the government with their concerns about the bill, and says that others have been “in direct communications,” with her and her office to express doubts, but not publicly.

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 bill’s 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, one of Canada’s leading authorities on constitutional law.

When the proposed amendments were brought forward by Mr. Boissonnault in the House at report stage, all the other Liberals who rose to speak about the bill spoke in opposition to the government’s position.

Both Conservative justice critic Rob Nicholson (Niagara Falls, Ont.) and New Democrat justice critic Alistair MacGregor (Cowichan-Malahat-Langford, B.C.) defended the original text of the bill, and Mr. MacGregor called on his Grit colleagues to have the “courage” to go against the government’s will.

Liberal MP Rob Oliphant (Don Valley West, Ont.), one of the outspoken Liberal critics to the government’s amendments is the House sponsor of the bill. At the time of the amendments were proposed, Mr. Oliphant said he was “cautiously optimistic” that he had garnered enough support inside the Liberal caucus to tip the vote in favour of axing the government’s amendments, with the already confirmed support of the Conservative and New Democrat caucuses.

When the argument of provinces like Quebec, Manitoba, and British Columbia siding against the bill was used by the government in the report stage debate, Mr. Oliphant told The Hill Times that three out of the 13 in the federation speaking out were “overstating the case,” of the provinces and territories’ opposition to the bill. Canada’s 13 provincial and territorial premiers are members of the Council of the Federation which promotes interprovincial-territorial cooperation.

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