When the Surgeons Miss

Guest Post by Shannon Hale*

It is ironic that sometimes health-related cases pose the greatest risks to the health of the constitution when federalism goes under the knife.

Just over two months ago, the Supreme Court of Canada released its decision in Reference re Genetic Non-Discrimination Act (GNDA Reference). At issue was whether the federal government validly enacted parts of the Genetic Non-Discrimination Act (GNDA) that prohibit the forced testing and disclosure or unauthorized use of health-related genetic tests as a condition of providing goods and services or contracting (ss. 1 to 7).

The Court split three ways on this issue, with the majority, led by Karakatsanis J., ultimately deciding that the federal government had the legal authority to pass the law. The GNDA Reference provides much food for thought on division of powers analysis and federalism, especially since some of the conclusions drawn in that decision may undermine the ability of legislators and policymakers to make various policy choices with legal certainty.

Dwight Newman and I discuss the implications of the GNDA Reference in a forthcoming paper in Constitutional Forum. Our paper focuses on how the majority outcome achieves an arguably pragmatic and desirable policy result at the expense of established federalism jurisprudence, legal predictability, and effective intergovernmental cooperation.

I wanted to write about the GNDA Reference because of its far-reaching effects on federalism, in particular its impact on provincial autonomy to make policy choices that are responsive to regional diversity. As a former policy wonk, I admit that there are several situations in which it could be easier and more efficient for the federal government to legislate. Yet, the Canadian constitutional structure emerged from a political compromise and it is intentionally designed to mitigate against such centralization of power (Reference re Secession of Quebec at paras 55-60). An important policy goal or concerns about efficiency should not factor, or appear to factor, into the Court’s reasoning on whether the government in question validly passed a law. As we point out in our paper, the Court must be—and appear to be—above policy debates to maintain its institutional legitimacy.

The GNDA Reference also interests me because of the GNDA’s surprising origins and the even more surprising three-way split on the Court over the law’s characterization.

The GNDA was introduced as a private member’s bill in the Senate and it was voted into law despite opposition from Cabinet, including from the then federal Justice Minister who had thought the law was unconstitutional. Although the Court was aware of the GNDA’s unusual legislative history, that did not factor heavily into its analysis (see, for example, GNDA Reference at paras 18, 161). Nor should it. As Karakatsanis J. clarifies, the “sole issue before [the Court] is whether [the federal government] had the power to [enact the GNDA]” (at para 18).

Unfortunately, what seems to end up happening is that the merits of a particular policy—preventing genetic discrimination—distract Karakatsanis J. from the demands of the established legal tests in division of powers cases. As we explain in greater detail, Karakatsanis J. adopts a purpose-driven approach that more closely resembles the “pressing and substantial objective” step of the Oakes analysis in Charter jurisprudence than the focus on the law’s “true subject matter” in pith and substance analysis (see, for example, Reference re Firearms Act (Canada) at para 18).

Of equal concern is the three-way split on pith and substance. It is not uncommon for the Court to disagree on the law’s pith and substance. But if these disagreements become the norm rather than the exception there is a danger that the Court could create the perception that judicial preferences, not established legal principles, dictate the outcome in division of powers cases.

This perception grows when the Court strays from established legal tests to shoehorn the analysis to reach a result that also favours a particular policy outcome. The task before the Court is not to weigh the merits of particular policies; it is to determine whether the government in question has the legal authority to make laws about those policies.

Despite its good intentions, the majority outcome may actually make the situation on the ground worse for Canadians. Our paper examines how the majority outcome will create considerable confusion for provincial insurance schemes and could result in higher insurance premiums across the board. It is also interesting how the majority outcome prevents genetic discrimination in some insurance contexts but not in others, which seems to be at odds with Karakatsanis J.’s view that the pith and substance of the GNDA is to prevent genetic discrimination “in the areas of contracting and the provision of goods and services” (GNDA Reference at paras 63-65).

Another problem with the majority outcome is that it fails to rein in the federal criminal law power. That power can swallow up a lot of provincial jurisdiction, leaving provincial governments with little room to make policy choices about issues that matter most to its people.

Karakatsanis J.’s approach to “gaps” in the law is also troubling. There are many reasons why provincial governments may or may not legislate an issue. Sometimes the lack of a provincial law is the product of an intentional choice. If the federal government can pass a law because the provinces haven’t, in the future, provincial governments may rush to pass a law to secure its control over an issue.

While some may say a bad law is better than no law, a “use it or lose it” approach to lawmaking may not necessarily reflect good policy. Provincial governments should be free to pass laws on issues within their jurisdiction without fearing that the federal government will pass a law if they fail to act. As the saying goes, “hard cases make bad law”. And in this case the main casualty is federalism.

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*Shannon Hale is a Research Associate at the University of Saskatchewan College of Law for the September-December 2020 term