The Constitutional Validity of Bill S-201 Presentation to the Standing Committee on Justice and Human Rights Professor Bruce Ryder Osgoode Hall Law School, York University 22 November 2016 I am pleased to have the opportunity to share my views with the Committee regarding the constitutional validity of Bill S-201. As my area of expertise is constitutional law, including the division of legislative powers in the Constitution Act, 1867, I will focus my comments on why, in my view, the Bill is a valid exercise of Parliament s power to pass criminal laws pursuant to s.91(27) of the Constitution Act, 1867. In particular, I will focus my comments on the prohibitions and penalties in sections 3 to 7 of the Bill (the Genetic Non-Discrimination Act), as I do not believe there are any doubts about the constitutional validity of the proposed amendments to the Canada Labour Code and the Canadian Human Rights Act set out in sections 8 to 10 of the Bill. Parliament s Power to Enact Criminal Laws Section 91(27) confers on Parliament exclusive jurisdiction to pass laws in relation to criminal law. In the leading decision interpreting the criminal law power, the Margarine Reference, 1 Justice Rand held that a valid criminal law must have as its dominant characteristic the putting in place of prohibitions coupled with penalties for a typically criminal public purpose such as the protection of "public peace, order, security, health, morality". This definition has been consistently followed ever since. The Supreme Court has repeatedly emphasized that the criminal law power is the most expansive and flexible of Parliament s legislative powers. For example, Justice La Forest wrote that the criminal law power "is plenary in nature and this Court has always defined its scope 1 Reference re Validity of Section 5 (a) Dairy Industry Act, [1949] SCR 1. 1
broadly... this Court has been careful not to freeze the definition in time or confine it to a fixed domain of activity." 2 A wide range of federal statutes have been upheld pursuant to the criminal law power over the years, including provisions of the Criminal Code of course, as well as many other federal statutes that stand alone, outside the Criminal Code, like the proposed Genetic Non- Discrimination Act. Some prominent examples, drawn from the leading cases, of federal statutes upheld by the Supreme Court of Canada as valid exercises of Parliament s power to enact criminal laws include: prohibitions on anti-competitive practices in combines legislation; 3 the consumer protection provisions of the Food and Drugs Act; 4 the now defunct therapeutic abortion provisions of the Criminal Code; 5 the Tobacco Products Control Act (now the Tobacco Act); 6 the now defunct Lord's Day Act; 7 the Firearms Act; 8 the recent legislation repealing the long-gun registry; 9 the Young Offenders Act (now the Youth Criminal Justice Act); 10 the Controlled Drugs and Substances Act; 11 the toxic substances provisions in what is now Part V of the Canadian Environmental Protection Act; 12 2 RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 SCR 199 at para 28. 3 Proprietary Articles Trade Association v. Attorney-General for Canada, [1931] AC 310. 4 R. v. Wetmore, [1983] 2 SCR 284. 5 Morgentaler v. The Queen, [1976] 1 SCR 616; R. v. Morgentaler, [1988] 1 SCR 30. 6 RJR-MacDonald, supra note 2. 7 R v. Big M Drug Mart, [1985] 1 SCR 295 (upholding the Lord s Day Act as a valid criminal law but striking it down as a violation of the Charter s protection of religious freedom). 8 Reference re Firearms Act, [2000] 1 SCR 783. 9 Quebec v. Canada, [2015] 1 SCR 693. 10 R. v. S. (S.), [1990] 2 SCR 254. 11 R. v. Malmo-Levine, [2003] 3 SCR 571, at paras. 77-78; Canada (Attorney General) v. PHS Community Services Society, [2011] 3 SCR 134 at para 52. 12 R. v. Hydro-Québec, [1997] 3 SCR 213. 2
the prohibition on issuing false prospectuses in what is now s.400 of the Criminal Code; 13 the prohibited activities provisions in sections 5 through 9 of the Assisted Human Reproduction Act. 14 Provincial Jurisdiction Pursuant to Section 92(13) Like the federal criminal law power in s.91(27), the courts have given a broad interpretation to provincial jurisdiction to enact laws in relation to property and civil rights in s.92(13) of the Constitution Act, 1867. For example, ever since the Privy Council s 1881 ruling in Citizens Insurance Company v. Parsons, 15 the courts have held that the provincial legislatures have exclusive jurisdiction to regulate the insurance industry as part of their more general jurisdiction over the regulation of intra-provincial contractual transactions pursuant to s.92(13). Attempts by Parliament in the first half of the twentieth century to establish regulatory schemes for the insurance industry were consistently rebuffed by the courts. 16 In all of these decisions, the courts found the federal statutes at issue to be in pith and substance in relation to the insurance industry s provincial activities. In Reciprocal Insurers (1924), for example, the courts declared invalid an attempt to regulate the industry through a federal licensing scheme backed up by a criminal sanction for non-compliance. Similarly, the power to pass laws regulating employment relations is predominantly provincial pursuant to s.92(13) of the Constitution Act, 1867. 17 Federal jurisdiction over labour 13 Smith v. The Queen, [1960] SCR 776. See also Reference re Securities Act, [2011] 3 SCR 837. 14 Reference re Assisted Human Reproduction Act, [2010] 3 SCR 457. 15 (1881) 7 AC 96. For more recent affirmations of provincial jurisdiction over the insurance industry, see Canadian Indemnity Co. v. Attorney-General of British Columbia, [1977] 2 SCR 504; Canadian Western Bank v. Alberta, [2007] 2 SCR 3. 16 Peter Hogg, Constitutional Law of Canada, chapter 21.5, citing Attorney General for Canada v. Attorney General for Alberta (Insurance Reference), [1916] 1 AC 588 ; Attorney General for Ontario v. Reciprocal Insurers, [1924] AC 328 ; In re the Insurance Act of Canada, [1932] AC 41 ; Reference as to the Validity of Section 16 of the Special War Revenue Ac, [1942] SCR 429. 17 A long line of case law dating back to Toronto Electric Commissioners v Snider, [1925] AC 396 supports this position. See for example Bell Canada v Quebec, [1988] 1 SCR 749 at para 19: 3
relations is an exception to the general rule of provincial jurisdiction. Parliament has jurisdiction over labour relations in the federal public sector and at federally regulated workplaces, such as banks, airlines or telecommunication companies. 18 Section 8 of Bill S-201, amending the Canada Labour Code, is a valid exercise of Parliament s jurisdiction in this regard. Double Aspect Doctrine The prohibitions and penalties in sections 3 to 7 of Bill S-201 would have a significant impact on service providers and on contractual activities within the provinces (including employment contracts and insurance contracts). These are matters that fall squarely within exclusive provincial jurisdiction pursuant to s.92(13) of the Constitution Act, 1867. However, the fact that federal criminal laws impact on areas of provincial jurisdiction does not render them invalid. This is because the courts have held that subjects which in one aspect and for one purpose fall within section 92, may in another aspect and for another purpose fall within section 91. 19 This principle is known as the double aspect doctrine. The Court has said that the dominant tide of Canadian constitutional law has been to allow for a fair amount of interplay and indeed overlap between federal and provincial powers 20 in order to favour, wherever possible, the ordinary operation of statutes enacted by both levels of government. 21 Many provisions of the Criminal Code or other federal laws enacted pursuant to s.91(27) have an impact on property and civil rights in the provinces. For example, Part X of the Criminal Code deals with a range of fraudulent transactions relating to contracts and trade, like manipulation of stock exchange practices, insider trading, and falsification of books and documents. In the Securities Reference, the Court acknowledged that the federal criminal law power gives Parliament the power to pass laws affecting the securities industry. 22 While the labour relations and working conditions fall within the exclusive jurisdiction of the provincial legislatures. 18 Bell Canada, ibid at para 20. 19 Hodge v. The Queen (1883), 9 AC 117. 20 OPSEU v. Ontario (Attorney General), [1987] 2 SCR 2 at 17. 21 Canadian Western Bank v. Alberta, [2007] 2 SCR 22 at para 37. 22 Reference re Securities Act, [2011] 3 SCR 837 at para 46. 4
Court found that the proposed Securities Act was beyond Parliament s jurisdiction, it noted that the constitutionality of the offence provisions of the proposed Act was not contested. 23 Securities regulation and highway traffic are other prominent examples of double aspect matters. The solemnization of marriage is another. 24 Discriminatory speech is another: it may be addressed under provincial human rights legislation 25 and in the federal Criminal Code. 26 As Professor Hogg has written, [t]he result is that over much of the field which may loosely be thought of as criminal law legislative power is concurrent. 27 In my view, genetic discrimination is another subject with a double aspect: it can be validly addressed by the provinces pursuant to s.92(13) and it can be validly addressed by Parliament from a criminal law point of view pursuant to s.91(27), which, in my view, is exactly what the Genetic Non-Discrimination Act does. Jurisdiction to pass laws in relation to discrimination Jurisdiction to pass laws in relation to the civil consequences of discrimination is divided between the provincial legislatures and Parliament according to their jurisdiction over the activities or the context in which discrimination takes place. For example, provincial human rights legislation applies to provincially regulated workplaces, while the Canadian Human Rights Act applies to federally regulated workplaces, like the federal public service, banks and airlines. The addition of genetic characteristics to the prohibited grounds in the CHRA (as proposed by sections 9 and 10 of Bill S-201) would make it illegal for federally-regulated employers and service providers to discriminate on that basis. This is an important change in the 23 Ibid at para 32. 24 The solemnization of marriage is a matter that falls within exclusive provincial jurisdiction pursuant to s.92(12) of the Constitution Act, 1867 but may also be regulated by Parliament pursuant to its criminal law power: see the offences against conjugal rights and the unlawful solemnization of marriage in sections 290 to 295 of the Criminal Code. 25 See s.14 of the Saskatchewan Human Rights Code upheld in Saskatchewan v. Whatcott, 2013 SCC 11. 26 R. v. Keegstra, [1990] 3 S.C.R. 697. 27 Peter W. Hogg, Constitutional Law of Canada at p.18-36. 5
law, but of course it would not apply to most employers and a wide range of service providers who fall within provincial regulatory jurisdiction. To prohibit genetic discrimination on a comprehensive, national basis, amendments to all provincial and territorial human rights legislation would be necessary. The Ontario legislature is currently considering Bill 30, the Human Rights Code Amendment Act. Bill 30 would add genetic characteristics as a prohibited ground of discrimination to the Ontario Human Rights Code. As far as I am aware, no other province or territory has introduced a bill prohibiting genetic discrimination. In addition to its jurisdiction to enact laws addressing the civil consequences of discrimination in the context of federally regulated activities, Parliament also has jurisdiction to enact criminal laws prohibiting discrimination in any context. Parliament can pass laws making it an offence to engage in serious acts of discrimination that amount to social evils. The prohibition in s.319(2) of the Criminal Code on the wilful promotion of hatred against identifiable groups - a type of hate speech that the Supreme Court has characterized as discriminatory speech or speech with discriminatory effects 28 is an example of Parliament treating a form of discrimination as serious enough to be worthy of a national prohibition. Section 319(2) applies to public statements made in any context, not just those in media (like broadcasting and telecommunications) that fall within federal regulatory jurisdiction. The tendency of modern Canadian legislation and jurisprudence has been to favour the extension and dispersal of responsibility for ensuring respect for human rights norms not just across federal and provincial jurisdictions but also among different actors within those jurisdictions. As a result, concurrent jurisdiction over human rights issues is increasingly common. For example, section 226(2) of the Public Service Labour Relations Act empowers adjudicators to interpret and apply the Canadian Human Rights Act and order remedies available under that Act. 29 The Canadian Human Rights Commission can decide to defer action on a complaint if the subject matter is being dealt with appropriately in another forum. 30 The Canadian Human Rights Tribunal, similarly, can decline jurisdiction, relying on doctrines such 28 Saskatchewan v. Whatcott, supra note 24 at paras 105 and 135. 29 Public Service Labour Relations Act, SC 2003, c.22, s.226(2). 30 See section 41 of the Canadian Human Rights Act, RSC 1985, c. H-6, s.41. 6
as issue estoppel, abuse of process and collateral attack, if an attempt is made to re-adjudicate an issue that was subject to adjudication in another forum. 31 The Assisted Human Reproduction Act Reference The Assisted Human Reproduction Act Reference provided the Supreme Court of Canada with its most recent opportunity to discuss the scope of Parliament s criminal law power at length. In the AHRA Reference, a 5-4 majority of the Court found most of the regulated activities provisions of the AHRA to be beyond the jurisdiction of Parliament on the grounds that they amounted to a minute regulation of all aspects of clinical practice and research related to assisted reproduction. 32 The prohibited activities provisions of the Act were upheld as valid criminal law, even though they have a significant impact on provincial jurisdiction in relation to the delivery of reproductive health services. The dissenting judges in the AHRA Reference would have struck down the prohibition in section 8 of the AHRA on using reproductive material without consent and the prohibition in s.9 on the use of minors reproductive material. The two majority opinions took a different view. Chief Justice McLachlin, writing on behalf of four members of the Court, found these provisions to be anchored in concerns related to health, morality and personal security. The matters at issue, she explained, are subject to overlapping or concurrent federal and provincial legislative powers: Parliament is entitled to use the criminal law power to safeguard the public from conduct that may have an injurious or undesirable effect on the health of members of the public, notwithstanding the provinces general right to regulate the medical profession. Health is subject to overlapping federal and provincial jurisdiction, and the provinces power to legislate in this field does not exclude Parliament s authority to target conduct that constitutes a public health evil. 33 31 See eg Murray v. Immigration and Refugee Board, 2013 CHRT 2 at paras 64-67, citing the Supreme Court of Canada ruling in British Columbia v. Figliola, 2011 SCC 52. 32 Reference re Assisted Human Reproduction Act, [2010] 3 SCR 457 at para 286 per Justice Cromwell. 33 Ibid at para 57. 7
The fifth member of the majority, Justice Cromwell, held that the prohibitions in sections 8 and 9 were focused on negative practices associated with assisted reproduction and fall within the traditional ambit of the federal criminal law power. 34 Pith and Substance of the Genetic Non-Discrimination Act The constitutional validity of sections 3 through 7 of Bill S-201 (the Genetic Non- Discrimination Act) turns on whether the dominant characteristic of these provisions, or their pith and substance, is criminal law. In other words, is their dominant characteristic the putting in place of prohibitions coupled with penalties to protect the health of Canadians? Or is the dominant characteristic of the Bill the regulation of a subject matter that falls within provincial jurisdiction? To determine the pith and substance of the Bill, the courts will examine its purpose and its legal effects. The title of the proposed legislation, as set out in s.1 of the Bill, is the Genetic Non-Discrimination Act. Sections 3, 4 and 5 put in place prohibitions on requiring individuals to undergo genetic testing, on requiring individuals to disclose the results of a genetic test, and on the use of genetic test results without written consent. The aim of these provisions is to promote health and personal security by protecting individuals control over the decision whether to undergo testing and over the uses of genetic test results. These prohibitions apply to any person ; they do not mention any particular industry or type of actor. Section 6 provides exemptions from the prohibitions for health care practitioners and researchers. Section 7 puts in place serious penalties for the violation of the prohibitions in sections 3 to 5. In my view, it is evident that the dominant characteristic of these provisions is to put in place prohibitions coupled with penalties aimed at protecting individuals from threats to their health and personal security posed by the use of genetic information without their consent. The pith and substance of sections 3 to 7 of Bill S-201 fall squarely within the definition of criminal law followed by Canadian courts since the Margarine Reference. They do not resemble the detailed and extensive regulation of assisted reproduction services or of the insurance industry as 34 Ibid at para 291. 8
was the case with federal laws the courts have declared invalid in the rulings cited above. Rather, sections 3 to 7 of Bill S-201 are very similar in their nature and objectives to the prohibited activities provisions, including the prohibitions on the use of reproductive material without consent, upheld by the Supreme Court in the AHRA Reference. 9