Proceedings of the Standing Senate Committee on
Human Rights
Issue 14 - Evidence - December 11, 2014
OTTAWA, Thursday, December 11, 2014
The Standing Senate Committee on Human Rights, to which was referred Bill S-201, An Act to prohibit and prevent genetic discrimination, met this day at 8 a.m. to give consideration to the bill.
Senator Mobina S. B. Jaffer (Chair) in the chair.
[English]
The Chair: Honourable senators, welcome to the twenty-sixth meeting of the Second Session of the Forty-first Parliament of the Standing Senate Committee on Human Rights.
[Translation]
The Senate gave our committee the mandate to study matters related to human rights, both in Canada and abroad. My name is Mobina Jaffer, and I am the committee chair.
[English]
I would like to invite the other members to introduce themselves.
Senator Cowan: James Cowan, Nova Scotia.
Senator Hubley: Elizabeth Hubley, Prince Edward Island.
Senator Oh: Victor Oh, Ontario.
Senator Black: Doug Black, Alberta.
Senator Eaton: Nicky Eaton, Toronto.
Senator Ataullahjan: Salma Ataullahjan, Toronto.
Senator Nancy Ruth: Nancy Ruth, Ontario.
The Chair: We are here to continue our hearings on Bill S-201, An Act to prohibit and prevent genetic discrimination, which is a private member's bill introduced by Senator Cowan, the Leader of the Opposition in the Senate. Bill S-201 is called the ''Genetic Non-Discrimination Act.'' It was inspired by the rapidly growing field of genetics in medical science, which increasingly is able, through a simple blood test or even a mouth swap, to learn if someone has a genetic predisposition to develop certain medical problems. I understand now that BlackBerry has developed an application that doctors will be able to tell the genetic disposition of a person. In most cases, having a gene doesn't mean that someone will develop a particular disease. But there may be steps that one could take to reduce the chances of developing a disease, if one knows one has a particular gene or genetic predisposition.
However, right now there is no specific legislation in Canada — provincial or federal — to address the problem of genetic discrimination, where a person is treated differently by employers, for example, or when applying for insurance because of their genes. In fact, many Canadians are choosing not to have genetic testing because of the fear of genetic discrimination. That is what Senator Cowan's bill is intended to address.
Bill S-201 is in three parts: One, it would create a new genetic non-discrimination act to prohibit and prevent anyone requiring someone to take a genetic test or requiring someone to disclose the results of any genetic test, in any contractual relationship. Two, it would amend the Canada Labour Code to prohibit and prevent employers from requiring employees to take a genetic test or disclose the results of any genetic tests. And three, it would amend the Canadian Human Rights Act to add genetic characteristics as a prohibited ground of discrimination.
Today, we have many witnesses in front of us.
[Translation]
Thank you for being here, Mr. Thibault, and welcome to the committee.
[English]
Mr. Engelmann, I am happy that you made it back. We were worried. Welcome to the committee.
[Translation]
We will start with you, Mr. Thibault.
Pierre Thibault, Assistant Dean and Secretary, Civil Law Section, University of Ottawa, as an individual: As the bill's sponsor, Senator Cowan, indicated, the purpose of Bill S-201 is to prohibit genetic discrimination in two areas: insurance and employment.
Given the amount of time I have, I am going to speak to the part of the bill pertaining to insurance.
I would like to begin by making an important point: the purpose of the bill is commendable and merits consideration. However, the bill's impact has to be viewed through the lens of the Constitution of Canada. As you know, the Constitution Act, 1867, sets out the distribution of legislative powers between the two levels of government, the Parliament of Canada and the legislatures of the provinces, primarily in sections 91 to 96.
Case law has consistently held that a piece of legislation must be constitutional, something the Supreme Court of Canada reaffirmed recently in its reference regarding the Securities Act in the Canadian Western Bank decision.
As Justice Binnie explained in the Canadian Western Bank decision, and I quote:
If the pith and substance of the impugned legislation can be related to a matter that falls within the jurisdiction of the legislature that enacted it, the courts will declare it intra vires. If, however, the legislation can more properly be said to relate to a matter that is outside the jurisdiction of that legislature, it will be held to be invalid owing to this violation of the division of powers.
As you know, insurance is a matter of provincial jurisdiction. As of 1881, in the well-known Parsons decision, the Judicial Committee of the Privy Council confirmed that insurance was an area within the power of the provincial governments and stated that federal jurisdiction over trade and commerce did not extend to the regulation of contracts of an industry or business.
So the question that needs to be asked is whether the pith and substance of Bill S-201 concerns the area of insurance. The first factor to consider is the purpose of the bill. The second consideration is the practical legal effect it will have. Once that has been done, the purpose of the bill has to be tied to one of the powers set out in sections 91 to 96 of the Constitution Act, 1867. Clauses 3 and 4 of the bill are intended to prohibit genetic tests as a condition of a contract or the delivery of goods or services. Clause 6 sets out a specific exemption for contracts of insurance that exceed $1 million or that pay benefits of more than $75,000 per year.
Therefore, it would seem that the purpose of Bill S-201 is to prohibit an insurance contract that would require a genetic test. So the practical legal effect of the bill is to make changes to the field of insurance by introducing restrictions. Hence, the pith and substance of Bill S-201 is the regulation of insurance, an area provided for in section 92(13) of the Constitution Act, 1867, governing property and civil rights in the province.
As I see it, there is nothing stopping the Parliament of Canada from amending the Canada Labour Code and the Canadian Human Rights Act — quite the opposite — by introducing provisions to prohibit genetic discrimination, without encroaching unduly on the provinces' jurisdiction over matters of insurance.
As long as Bill S-201 does not stray from that, its constitutional validity should not be called into question, in my view.
I will stop there. I will be happy to answer any questions you may have at the appropriate time.
The Chair: Thank you for your presentation.
[English]
Now, Mr. Engelmann.
Peter Engelmann, Sack Goldblatt Mitchell, LLP, Canadian Association of Labour Lawyers: Thank you. I'm not sure if this is loud enough; I hope it is.
Good morning, honourable senators, and thank you for allowing me to speak to you this morning on this very important issue.
I'm a partner in the law firm of Sack Goldblatt Mitchell, LLP. We are primarily labour employment and human rights lawyers, and we do some other work as well. But I'm also here speaking on behalf of the Canadian Association of Labour Lawyers, also known as CALL. It's a national association of lawyers representing union clients with the goal of improving the physical, emotional, cultural and material well-being of Canadian workers and their families and promoting their legal interests.
I've now practised law for over 25 years in areas of human rights. I was a former counsel at the Canadian Human Rights Commission around 25 years ago. I also had some experience at the Department of Justice. Then in the early 1990s I opened a firm, and about 10 years ago I joined Sack Goldblatt Mitchell.
So I've had extensive experience representing both unionized and non-unionized workers in federal and provincial jurisdictions in their workplaces dealing with all sorts of discrimination issues that workers can face in their workplaces.
What I wanted to focus on today was really the bill itself, clauses 1 through 7. I just wanted to start by situating what I see as the social-legal context and the goals that this bill is trying to protect.
This bill is being introduced, as I understand it, by a member of the opposition in this chamber, but I don't really see this as a partisan issue. Aside from the opposition that my friend has spoken to with the issue of the insurance industry, I don't think there is much divide on the issue. Our current government, in its Speech from the Throne delivered on October 16 of 2013, committed to preventing employers and insurance companies from discriminating against Canadians on the basis of genetic testing.
I briefly reviewed the testimony of individuals who appeared before you, and there appears to be a general consensus that since genetic testing can increasingly be used at an individual level for medical diagnosis and disease prevention and treatment, it is clearly within both individual and societal interest for people to take advantage of these scientific and medical breakthroughs. It appears that scientific and medical advancements will, in large part, be based upon information arising from genetic testing. Thus, it depends on the willingness of Canadians to undergo such testing. Common sense dictates that people will only take advantage of the option to undergo genetic testing or screening if they believe they can do so without the information being disclosed or misused. There is undoubtedly a public interest in ensuring that individuals are not deterred from exercising their choice to undergo genetic testing.
It is CALL's respectful submission that current laws do not provide adequate protection for Canadian citizens interested in undergoing genetic testing. In fact, the lack of protection and concerns about disclosure are likely dissuading many Canadians from undergoing this testing. It is CALL's position that clauses 1 through 7 of the bill, which create prohibitions and penalties, which we believe to be the heart of the bill, are necessary and will go a long way to eliminating current disincentives that exist for Canadians who may wish to undergo such testing.
I note that for over 20 years, there have been calls in this country for some action on this type of legislation. As Senator Cowan noted, we are one of the only Western democracies that doesn't have specific protection against genetic discrimination.
In my limited time, I will refer you to some documents I have looked at by way of background. In 1992, the federal Privacy Commissioner wrote a report entitled Genetic Testing and Privacy, and this report specifically recommended that employers should be prohibited from collecting personal genetic information about job applicants or employees and stated that the Privacy Act does not offer sufficient or meaningful protection.
In 1993, a similar report by the Information and Privacy Commissioner of Ontario, entitled Workplace Privacy: The Need for a Safety-Net, again recommended some general prohibitions on genetic testing in the workplace.
The B.C. Civil Liberties Association, in 2012, published a similar report, stating that human rights and privacy legislation may offer some protection, but they are insufficient.
More recently, Dr. Ann Cavoukian, who was Ontario's Privacy Commissioner for approximately 17 years, recommended additional legislation to prevent genetic information from being used in the context of employment.
Why is this a problem? I'm not presently aware of any instances where employers are requiring employees to undergo genetic testing as a precondition to employment or have required individuals to disclose the results of genetic testing, but there are incentives for employers to seek this type of information. That incentive, combined with the weak protections that are currently offered by human rights and privacy legislation, as I will try and outline quickly, justifies specific legislation of this nature to prohibit an employer from seeking such information. For example, they may use this information to avoid hiring individuals who they believe are likely to have a high risk of absenteeism, take a stress or sick leave, resign or retire early for health reasons, file workers compensation claims, require workplace accommodation or excessively use health care benefits.
Furthermore, once an employee has been hired, employers continue to have the same incentives to access genetic testing information. That incentive can lead to an employee's increased surveillance at work because of their disclosure or because the supervisor finds out about genetic test results. They may experience promotional denial because of their results or be pressured to retire early. These incentives are all documented in the reports from the federal and provincial privacy commissioners that I've referenced.
On the nature of privacy interests, genetic data, as you know, can reveal the most intimate details of a person's health status, and this has been recognized internationally. Article 4 of UNESCO's International Declaration on Human Genetic Data gives human genetic information a special status since (a) it can be predictive of genetic predispositions concerning individuals; (b) it has a significant impact on the family; (c) it contains information whose significance is not necessarily known at the time of the sample; and (d) it has a cultural significance for certain persons and groups.
I know I have limited time. Tell me when I need to stop. I have only a few more minutes left.
Employment interest: The nature of the employment interests at stake in relation to genetic testing is highlighted in the 1992 report by the federal Privacy Commissioner. In the report, it was recommended that genetic testing in the employment context, whether voluntary or mandatory, should be prohibited, and I would leave you with a reference to page 31 of that report. Persons looking for employment, continued employment or promotion have little power to resist an employer's request to take a voluntary test. This observation reflects the power imbalance that exists between a prospective employee and an employer. People should not have to choose between undergoing diagnostic or prospective genetic testing and potentially facing repercussions in the workplace that lead them to having to prosecute a complaint or grievance. For most persons, this is not a meaningful choice, and it's certainly not one that will encourage individuals to undergo the testing that has been recognized as so important.
Currently, privacy and human rights regimes do not prevent discrimination or privacy breaches from taking place. Rather, they offer potential remedies after breaches of the respective acts have occurred, and only to the extent that the individual himself or herself initiates a complaint and sees it through and has the wherewithal to prosecute successfully.
Ms. Karen Jensen, who appeared on behalf of the Canadian Association of Counsel to Employers, emphasized the fact that this legislation was unnecessary under current human rights law and that genetic discrimination would already be protected under the grounds of disability or perceived disability. While CALL agrees with the legal analysis that one could say it falls within perceived disability, with respect, the explanation is too narrowly focused. The comments are really only applicable to the section of the bill that proposes amendments to the Canadian Human Rights Act. CALL's focus is on clauses 1 through 7 of the bill that impose prohibitions and penalties. That is the priority.
CALL strongly believes that human rights and privacy regimes are inadequate to deal with these issues for three reasons: First, the regimes are complaint-driven. It places the burden on individuals to police and prosecute employers' misconduct. Such a process will require an individual to be extremely well-informed about their human rights and privacy rights. In my experience, the average individual has limited knowledge about such issues and will almost always have to seek legal advice about whether an employer's conduct is prohibited. With such an information power imbalance, most individuals will often acquiesce to requests.
Second, the complaint-driven process will require individuals to spend exorbitant amounts of time, money and effort prosecuting their cases. In the human rights context, a case often takes two years, sometimes more. While the process is intended to be user-friendly, the system is fraught with inefficiencies and complexities that often make the process inaccessible for regular individuals. To successfully prosecute a human rights case, individuals often require legal assistance, which imposes significant costs. In federal jurisdictions, the employers are large and well-resourced, the government or federally regulated employers, and they always have counsel. Individuals have no counsel to prosecute these cases and, when they do, they cannot recover legal fees.
Third, the complaints-driven process is reactive, not preventative, and the remedies available do not and are not able to provide full compensation, let alone cover the individual's legal expenses.
I'm going to skip to the end because I'm over my time.
In summary, these are the reasons why we believe a bill like this is necessary, a separate bill: One, a socially desirable goal is sought to be advanced; two, the nature of the interests at stake; three, the incentives that exist for employers to collect this information; four, the inadequacy of the reactive complaints-oriented process that currently exists; and five, the existence of similar legislation that imposes prohibitions and penalties. There are Canada Labour Code provisions that impose penalties, and occupational health and safety legislation prosecutions, so prohibitions and prosecutions are not abnormal.
All of this gives this issue a status that warrants this type of legislation. In conclusion, in light of our commonly held goal to develop better health care for everyone at both a diagnostic and a preventive level, the law ought to shift the onus of preventing misuse of genetic information from the individual level to the societal level. It is our submission that Bill S-201 does just that.
The Chair: Thank you for your presentation. I will go to questions and will start with the sponsor of the bill, Senator Cowan.
Senator Cowan: Thank you for coming this morning through all the snow. We very much appreciate your views.
Mr. Thibault, I had a couple of questions for you with respect to the issue of constitutionality. I was going to put to you a quote from Peter Hogg, whom I'm sure you are familiar with, who is a well-known constitutional scholar, and in his book Constitutional Law of Canada he was writing, at page 55, about the authority of the federal government to enact legislation to prevent discrimination. This is what he said, and I will ask you to comment on it:
The authority to enact legislation of this kind [to forbid various discriminatory practices on pain of a penalty] is distributed between the federal Parliament and the provincial legislatures according to which has jurisdiction over the employment, accommodation, restaurants and other businesses or activities, in which discrimination is forbidden. Most of the field is accordingly provincial under property and civil rights in the province (s. 92(13)).
And this is the point I would like your comment on:
However, there is a little doubt that the federal Parliament could if it chose exercise its criminal law power (s. 91(27)) to outlaw discriminatory practices generally.
Do you agree with Professor Hogg?
Mr. Thibault: That's an interesting point. We know that the federal power over criminal law applies across Canada. Yes, that we can impose this and define a crime.
[Translation]
Parliament can amend the Criminal Code to provide for certain acts, certain crimes, but to go from there to making the genetic test requirement a crime is a significant leap. I am not prepared to make that leap today.
Canada is a federal state, and I think the provinces' jurisdiction over property and civil rights has to be respected, and Peter Hogg refers to that. It is equally important that the federal government's jurisdiction over commerce, as I mentioned, and criminal law be respected. However, legislative authority over one matter cannot be used to encroach upon the jurisdiction of another level of government.
[English]
Senator Cowan: I refer you to section 347 of the Criminal Code, and that deals with criminal interest rates. Certainly business transactions are normally the provincial responsibility, but there is an instance where the federal Parliament has intervened and used the criminal law to restrict and impose penalties for criminal interest rates. The mere fact that you have something dealing with a contract, which is normally provincial jurisdiction, doesn't obviously eliminate the power of the federal Parliament to intervene, and there is an example where it did.
[Translation]
Mr. Thibault: Yes, in the case of criminal interest rates, it is essentially an area of federal jurisdiction, as stipulated in the Constitution Act, 1867. The act provides for the federal government's authority over banks, but it also provides for jurisdiction over property and civil rights, and that matters. As of 1881, the Judicial Committee of the Privy Council indicated that insurance and civil rights came under provincial jurisdiction. Only time will tell if a conflict arises between the two authorities. As you know, the doctrine of federal paramountcy could be applied, but a genuine conflict between the two laws would have to arise in order to apply the doctrine, and that is not the case here.
[English]
Senator Cowan: I suggest that section 347 is dealing with business transactions, which are provincial transactions, and that's not there because of the federal jurisdiction over banking.
Mr. Thibault: No, I understand.
Senator Cowan: The last point: In this area, no provincial authority has intervened in the legislative way, so we're not seeking here to bring in legislation at the federal level which conflicts or might conflict with any provincial jurisdiction. This bill has been in circulation since April 2013, and all the provincial governments are aware of it. Ms. Heim-Myers spoke to us yesterday about the fact that she has been travelling across the country, doing her missionary work, and has not heard, nor have I, of any opposition on the part of provincial governments' concern about incursion into their areas of responsibility. Does that affect your opinion at all?
Mr. Thibault: I do not disagree with the bill and the intent of bill. What I disagree with is the part of it that is problematic regarding the Constitution. It may be that you will be disappointed when the bill becomes law and is contested before the courts. It will not be useful to have a conflict in the courts dealing with that part of the bill which, in my opinion, relates to the powers of the provinces.
What could we do? We could ask the provincial governments to react and enact some disposition, some provision on this topic, and the federal Parliament could legislate over the Canada Labour Code and the Canadian Human Rights Act, and to legislate within their field of powers. It's the Criminal Code that applies to all across Canada, but it's not the case for other matters, which are provincial.
We have an article in Le Devoir from some professor from Ottawa University this morning regarding the Energy East Pipeline and interprovincial transportation of gas, and it says Canada is not a unitary state. It's a federal state, and we should respect the power of the provinces.
Senator Cowan: I think you said in your remarks, sir, that you understand the importance of the protection of private DNA genetic codes and that they are critically important and private, and you recognize that. Don't you think that there is a wider social interest in making sure that we have a protection where every Canadian has the same type of protection from coast to coast to coast, rather than having a patchwork of different levels of protection depending on what part of the country you live in? Wouldn't you agree that there is an overriding social benefit from such a regime?
[Translation]
Mr. Thibault: In theory, yes. But the legislative authority of both levels of government has to be respected. In an ideal world, the answer to your question would be yes. I do not want to see Canadians across the country being discriminated against on the basis of genetic tests.
Parliament can legislate through the Canada Labour Code and the Canadian Human Rights Act; that, alone, would represent a significant step forward. But I don't think Parliament can legislate in relation to insurance contracts, which come under provincial jurisdiction.
[English]
Senator Eggleton: I have a supplementary on that. Mr. Thibault, you said parts of this bill are of concern. Which parts are, and which parts are not?
Mr. Thibault: The part that relates to insurance.
Senator Eggleton: So the part that relates to insurance totally?
Mr. Thibault: Yes.
Senator Eggleton: In terms of employment, there is federal jurisdiction in employment.
Mr. Thibault: There is no problem in amending the Canada Labour Code and amending the Canadian Human Rights Act. There is no problem. That's within the power of Parliament.
Senator Ataullahjan: This bill proposes that genetic characteristics be added to the Canadian Human Rights Act without defining the term. Could the lack of definition of the term create issues if it were used in a case?
Mr. Engelmann: I don't think so. I think the provisions that seek to amend the Canadian Human Rights Act just provide some clarity.
As I said, I don't necessarily disagree with comments that were made earlier by the employer counsel that you can prosecute human rights cases of this nature on the basis of a perceived disability. I think if you add genetic characteristics and the language that is proposed here, though, you're making it clearer and less likely to confusion.
There are a lot of things that aren't formally defined. That's obviously up to you as to how far you go with that definition, but certainly what's being proposed will be much clearer than having nothing in the act at all.
[Translation]
Mr. Thibault: Senator, if I may, I would add that, as soon as you define a term, you limit it. Since we do not know what the future will bring, I think it should be left to the discretion of the courts to interpret the rights and freedoms provided for in the Canadian Human Rights Act liberally. I think the term is fine as it appears.
[English]
Senator Andreychuk: On that issue, if we have a generic definition now and we then add something more specific, are we going to restrict that section to similar types of disabilities as genetics and perhaps preclude others? This is a debate we've had about the Criminal Code. If you have discrimination, you say discrimination is discrimination. Once you start categorizing, the courts are invited to say only similar types. I think it would be the same here.
Mr. Engelmann: I think your comment, senator, is similar to my friend's comment, and there are risks if you try to go too narrow.
Senator Andreychuk: Have we tended to leave generic comments? I haven't reviewed the cases recently. Because human rights is such an evolving field, it's what we expect and the standards we reach for. Have we opened up the human rights field under the tribunals to more specific definitions, or have we tended to try to keep them more generic?
Mr. Engelmann: They have been more generic in the past. I can just give you an example. You've seen quite a development in the law in the protection against discrimination on the basis of family status. That used to be whether or not you had children, or sometimes that was looked at together with marital status, whether you were single or divorced. Now clearly it has been recognized that it does protect individuals with significant child care responsibilities. We've also seen now, as our population is increasingly older, that there is protection for individuals caring for their parents or what's called elder care. I don't think you need to go narrower than you have. Definitions have changed over time. For example, on the definition of gender or sex, we've now included gender identity because of evolving issues in that regard. Again, one doesn't usually start narrow. One usually starts somewhat broader and goes narrow if Parliament feels it is necessary.
Senator Eaton: Are you familiar with the Genetic Information Nondiscrimination Act passed in the United States?
Mr. Engelmann: Superficially only.
Senator Eaton: Then I'll ask you a superficial question.
Mr. Engelmann: I know that there is legislation dealing with this issue in the U.S., in Israel and in many Western countries.
Senator Eaton: I've just been reading. Superficially, France seems to be very tight, but in the United States, for instance, it covers health insurance but it does not cover life insurance, disability insurance or long-term care insurance. The interesting thing is they then come back and say for health insurance they can still go back and demand genetic testing to find out how much they're going to charge as a premium. We're talking about group health benefits. I guess if you haven't studied it, you can't comment on it.
Mr. Engelmann: I suspect that may have to do with, obviously, different health care regimes. There are different health care regimes in the U.S., and health care is so tightly interwoven with employment and is such an important employment benefit for many American workers. That protection may result from that. It deals with health care and health care insurance.
Senator Eaton: If a union here is affiliated with an American union, does it have the same protection as passed under this law? It's within their health care package?
Mr. Engelmann: No. Canadian workers, whether they're with an international union or not, are all subject to Canadian law.
Senator Eaton: First and foremost?
Mr. Engelmann: Yes, absolutely.
Senator Eggleton: Mr. Engelmann, you talked at some length about the difficulty under current circumstances or under reactive or responsive circumstances for ordinary people to be able to challenge an act of discrimination of this kind. In addition to that, we heard some testimony yesterday, and I wonder if you've had any experience in this. The insurance industry gets around this business of asking for a genetic test. They have their own code at the moment that says they won't ask for genetic tests, but I'm told, on the other hand, that when they're exploring the family health history, they can then, if they spot something, say that they want that person to prove that they're not going to be genetically affected by it or that they were not going to get it somewhere down the line. Have you run across many cases like that?
Mr. Engelmann: I've certainly run across cases where workers have had difficulty obtaining disability insurance, and we deal with that all the time. I've certainly run across cases, and some of my colleagues have dealt with these cases, where people haven't sufficiently read the fine print in the insurance contract and have been denied access to insurance. I don't practise in the area of insurance law, though, sir, but I am extremely worried. We talk about family histories and how all that information has to be disclosed when we apply for any form of insurance and have to continually have a responsibility to report things as we go if we get travel insurance or other things. What I'm concerned about here is primarily in the employment aspect, as that's my expertise. Certainly if we want to encourage Canadians to do this important testing, and if there's going to be any possibility of disclosure as a result of insurance contracts, we all need insurances for all sorts of reasons, as we get older. I'm just worried that they will have access. If we really want to encourage this, just relying on current law is just not going to do it. Canadians are not going to get this testing.
Senator Cowan: I wonder if Mr. Engelmann has any comments on this jurisdictional issue that Mr. Thibault and I were talking about. Lawyers like to do this.
Mr. Engelmann: We live in a federalist society, and jurisdictional arguments between the federal government and the provinces have made many lawyers wealthy. I can't say that I've been part of that. There has been the odd human rights case or the odd labour case that I've been involved in where there has been an issue of whether someone is a provincially or a federally regulated employer. I find it is difficult.
My friend is correct. Insurance typically is a provincial domain. This bill does not deal only with insurance; it deals with insurance and of course employment, and I think on the employment side, you have no constitutional issue at all, and Mr. Thibault has said that.
It's one of these things where there are standards and there are issues that cross federal-provincial lines. There may not be a conflict, as you noted, sir, if this bill has been outstanding for almost a year and a half to two years and provinces are not objecting. I would hope as a citizen that they would get onside, if Parliament has the courage to pass a bill to encourage people to get genetic testing, not just with protection in employment, but protection from insurance companies that may take advantage of it, and that the provinces will agree and pass similar legislation.
You have this issue all the time in our federalist society. You have issues with health care and the Canada Health Act. You try to have national standards. I know there are issues like this with education as well. This is to protect individual Canadians. It will become an issue and it could become an issue if an insurance company were to challenge this legislation and suggest it was ultra vires of Parliament.
Having said that, constitutional challenges often lead to interesting developments, and if provinces feel that this bill is important, they can get onside and defend the federal power to enact such legislation, or they can pass something similar.
There are provisions, as you've noted, Senator Cowan, in the Criminal Code that deal with the employment context. I know there are others. You mentioned one, and there's another that we looked that deals with occupational health and safety issues, which are typically provincial concerns, but there are provisions in the Criminal Code dealing with that at section 217.1.
I'm not a criminal lawyer. My constitutional law is primarily dealing with section 2 and section 15 of Canadian Charter of Rights and Freedoms. I can't say I am an expert in interprovincial federal jurisdictional issues.
Senator Cowan: May I ask one more question?
The Chair: Is this another question?
Senator Cowan: Yes, it's another question, if somebody wanted to follow up on that?
[Translation]
The Chair: Mr. Thibault, are you able to answer that?
Mr. Thibault: Obviously, it would certainly make things easier if the provinces decided to introduce their own relevant legislation. I see absolutely no problem with adding the proposed provisions to the Canadian Human Rights Act and the Canada Labour Code. If the provinces want to introduce their own legislation, that would be the best of both worlds.
[English]
Senator Cowan: It was on a different topic.
Senator Eggleton: The United States passed this GINA law, and then many states came on board and passed variations, within their jurisdiction. The main commentary that I've heard about the United States law is that it acted as a stimulator. It activated things and it brought the states into the picture very quickly because most states have done something very similar as a result of whatever the division of powers are there. Could this not work the same way here?
[Translation]
Mr. Thibault: Taking all the necessary precautions would mean passing Bill S-201 with the part on the Canada Labour Code and the Canadian Human Rights Act, and asking the provinces to adopt the proposed measures in their own legislatures within their own legislative authority.
As I said earlier, that would be the best of both worlds. With Parliament legislating in areas under its jurisdiction and the provinces legislating in the area of insurance, Canadians would be protected against insurance companies' imposing the genetic test requirement.
[English]
Senator Cowan: I have another question to Mr. Engelmann. We had the representative of the Canadian Association of Counsel to Employers here earlier, and you've alluded to that testimony, and I think you agreed that in your experience this was not widespread. Is it appropriate for the federal Parliament to intervene before it becomes widespread, or should we wait until it becomes widespread?
Mr. Engelmann: If there's a societal goal, and I think everybody acknowledges this, that genetic testing has led to breakthroughs in the advancement of science and medicine, and if that is our goal here, then you should be doing everything possible to encourage people to do this. By not prohibiting discrimination and the disclosure of information, you are not helping people. You're not encouraging people to get important testing, so no, I think you need to act first, not be reactive, but be proactive.
The Chair: I have a question for you, Mr. Engelmann. In the presentation to the committee on 29 September, Karen Jensen from the Canadian Association of Counsel to Employers pointed to a number of protections that currently exist in the Canadian law that prevent genetic discrimination in the workplace, such as Part III of the Canada Labour Code and the Personal Information Protection and Electronic Documents Act. Are you or is your firm aware of people being discriminated against because they have Huntington's disease or Parkinson's disease or any other genetic diseases that people are discriminated against for? What is your personal experience or your law firm's experience with that?
Mr. Engelmann: We have dealt with many cases of disability discrimination. It's interesting as human rights jurisprudence has evolved since the 1960s and 1970s, when human rights acts were enacted in this country, surprisingly not the majority of complaints, but the overwhelming plurality of complaints are based on disability discrimination. Many of those complaints are based on perceived disability, where individuals have some kind of illness or disability that is asymptomatic, yet they are still discriminated against, whether they're a stable insulin-dependent diabetic or a perfectly controlled epileptic or someone living with HIV but asymptomatic. People still get discriminated against. It happens all the time. My point and my criticism, and I have a great deal of respect for Karen, I do cases with her and against her, but I think it's really naive to think that our current protection, where people have to prosecute these cases on their own, with their own money and their own time, will help encourage people to get genetic testing. That's just not going to happen.
The Chair: This morning you again reminded us, and I was struck by this, we forget that under the Human Rights Commission that it's a very expensive process. As you said, costs are not awarded. It was good to have that reminder that the process is not fair — not that it's not fair, but it's difficult and it's very expensive.
Mr. Engelmann: The process has changed a great deal. I was counsel to the Canadian Human Rights Commission from 1989 to 1991, and then I prosecuted many human rights cases afterwards when I was in private practice. Back at the time, when the commission referred a case, it referred it with a lawyer. That's not the practice and hasn't been the practice for many years, unless it's a systemic complaint. So if it's an individual complaint, people are on their own, and they're up against VIA Rail or Air Canada or the federal government, in the federal jurisdiction. So you've got an individual prosecuting a quasi-constitutional right against a well-heeled employer with two or three counsel in the hearing room. It's not a way to create good human rights law.
As you know from the Mossop decision that came from the Supreme Court of Canada, given the wording of the Canadian Human Rights Act, if complainants hire counsel, they cannot recover those costs. You hire a lawyer to prosecute this. If you're lucky, you actually are successful. If you're successful, hopefully you get sufficient damages to cover the legal expenses you've incurred. Or you ask someone like me to do it pro bono or for next to nothing. It is not a good way to protect these rights.
I'm not saying that there isn't some protection under the act right now, but I think the further protection is a good idea. I really think the prohibitions that are set out in the bill itself in clauses 3 through 6 are necessary if the goal of this committee and the goal of you as legislators is to encourage more individuals to undergo genetic testing because of all of the benefits we as a society can get from it.
The Chair: We heard yesterday of the benefits of people encouraged to do genetic testing and what the perils were if you did not do genetic testing.
You talked about systemic discrimination. Do you see the commission providing help or counsel in situations, and I'm asking you to speculate, of systemic discrimination in a case like this?
Mr. Engelmann: I have no doubt they would. Again, though, it's reactive. It's after the fact.
I'm old enough that I remember cases in the late 1980s, early 1990s, where individuals had some form of chronic illness, as I said, like insulin-dependent diabetes, and the railway companies passed laws essentially that if you worked on any position in the railway and you were an insulin-dependent diabetic, even if you were completely stable, you could not work there. What was happening was people were not admitting that they had diabetes. They were seeing the company doctor and not getting treatment for their diabetes because they were afraid they were going to lose their jobs. This is how strongly people feel about keeping their jobs when they might have to disclose something. That's just an analogy or a parallel perhaps to think about when you consider whether I, as a Canadian and as an individual, would want to go for genetic testing if I were worried that I was not going to get the incredibly expensive disability insurance I already pay for or some form of life insurance for protection for my family. I think I would be very concerned about going for that genetic testing myself.
The Chair: Yesterday I was really struck by the fact that it wasn't the individual that was concerned about the genetic testing, but they're worried about their children in the future. People were not doing genetic testing because of the effects it would have on their children. It's not just about you. It's about your children. It's about your family. It's broader than we think.
Mr. Engelmann: Yes, because the children might be subject to the same discrimination even before they enter the workplace. We don't know where this is going. We know there are all these tests now that people can take. We know that with the Internet and everything else, everything is accessible. Privacy protections are so important today. I don't think there's any health information that we have that is more sensitive than genetic testing.
The Chair: This morning I learned from Ms. Heim-Myers that BlackBerry now has an application with which the doctors can find out about this genetic disposition. That is of concern.
I have another question on disability, if I may. The Canadian Human Rights Act prohibits discrimination on the basis of disability. Can genetic discrimination be considered to fit under the prohibited ground of disability, do you think?
Mr. Engelmann: Yes. As I said, I don't disagree with Ms. Jensen when she says that. It could fall under disability or perceived disability.
If I were to rank the priorities, it would be the bill itself, clauses 1 through 7, and then it would be the protection under the Canada Labour Code, because those are important protections to workers, particularly non-union workers in the federal sphere who have more limited rights. The third would be the collateral amendments to the Canadian Human Rights Act. Are they still helpful? Yes, because I think there is clarity and it reinforces the importance, but that would be my priority list, if I had one.
The Chair: In your experience, have there been any cases on this under Canadian human rights on genetic discrimination?
Mr. Engelmann: Not that I know of.
[Translation]
The Chair: Mr. Thibault, would you like to answer?
Mr. Thibault: I agree with parts two and three, but not the first part.
I would add that we are all well-intentioned people who would like to make things better for our fellow citizens and improve the state of law in Canada. Someone brought up the significant social issue at play. I don't think the existence of a significant social issue gives either level of government the authority to legislate in matters outside its jurisdiction.
[English]
Senator Eggleton: I have just one more question, and it is a constitutional issue. I'm puzzled, because in October of 2013 the Harper government said in a Speech from the Throne that this government will ''prevent employers and insurance companies from discriminating against Canadians on the basis of genetic testing.'' One would have thought they might have checked the constitutional framework on this. Were you consulted on this? Do you have any idea what led the government to make such a firm statement about it?
Mr. Thibault: I worked in the Senate for a senator, the late Senator Beaudoin, for 16 years. I have read several Speeches from the Throne. From time to time, the government says that it will do such-and-such a thing in education, for example. Education is a provincial matter. They will do something in the health field. Health is primarily provincial. I'm not surprised to hear that or to see that.
Senator Eggleton: They did not consult you?
Mr. Thibault: No.
[Translation]
The Chair: Mr. Thibault, thank you for your presentation. We appreciated it very much.
[English]
Mr. Engelmann, thank you for your presentation. We certainly have benefited from both your presentations, and we look forward to working with you in the future.
We will start the second panel. We have from the Canadian Human Rights Commission, Mr. Langtry, Acting Chief Commissioner. Mr. Langtry has presented many times to the Human Rights Committee, so we welcome you. We also have Fiona Keith, Acting Director and Senior Counsel, and Marcella Daye, Senior Policy Advisor.
Mr. Langtry, I saw that you were listening to some of the exchange earlier on, so we're hoping that you will respond to that, and also if there are any cases on systemic discrimination, the committee would very much appreciate hearing from you on that.
David Langtry, Acting Chief Commissioner, Canadian Human Rights Commission: Thank you very much, Madam Chair and honourable members. Thank you for inviting the Canadian Human Rights Commission to contribute to your study of Bill S-201.
We're here today with three messages for your consideration. First, prohibiting discrimination based on genetic characteristics would protect Canadians from the risk that their genetic information could be used against them.
Second, adding genetic characteristics as a prohibited ground would enable Canadians to bring complaints of genetic discrimination to the commission without having to link them to other grounds, as is currently the case.
Third, by making this protection explicit in law it would be clear that everyone has the right to be treated equally regardless of their genetic characteristics.
I will first offer a brief word about who we are and what we do. Parliament designed the Canadian Human Rights Act to promote equality and to protect Canadians from discrimination based on grounds such as age, sex, disability, race and so on — 11 grounds in all at present. The commission administers the act. We receive discrimination complaints regarding employment or services under federal jurisdiction. This includes the federal public sector and private sector companies in industries such as transportation, telecommunications and banking.
The commission screens all the discrimination complaints it receives. In some instances we refer complaints to the Canadian Human Rights Tribunal for adjudication. The tribunal operates independently of the commission.
Genetic research holds tremendous promise. It has inspired new methods of diagnosis and treatment. Some believe it will revolutionize health care. While many recognize the benefits, there remains a great deal of uncertainty.
Information about our genetic makeup is deeply personal. We have heard that some individuals choose to avoid genetic testing out of fear — fear that the very tests meant to help may one day be used against them. They fear they could be discriminated against by employers, perhaps, or by insurance companies because of what their genes say about them. And who can blame them?
Our rights in this area are not clear. Genetic discrimination is an emerging area of law that remains virtually untested. Canadian jurisprudence in this area is almost non-existent. The commission does have authority under the Canadian Human Rights Act as it stands today to accept discrimination complaints regarding genetic characteristics, but only as long as they are linked to another ground such as disability. Clearly, this is an overly narrow approach.
As the pace of research accelerates, genetic testing will tell us ever more about who we are. It may one day measure other propensities such as personality traits. What if an employer were to require certain genetic profiles as hiring criteria? Would that discriminate against people who don't conform but may have the required education and experience? Is that the kind of society we want in Canada?
Parliament has long recognized that laws must evolve in order to keep pace with social and technological change. Adding genetic characteristics to the list of prohibited grounds under the Canadian Human Rights Act would help accomplish this. It would allow the commission to accept genetic discrimination complaints unrelated to existing grounds.
Even more importantly, it would make those protections explicit. It would make it clear that everyone has a legal right to be treated equally no matter who they are or what their genetic makeup says about them, and it would help employers understand their obligations and build in protections to prevent discrimination.
For this reason the commission supports Bill S-201, just as we support the commitment made in the Speech from the Throne to prevent employers and insurance companies from discriminating against Canadians on the basis of genetic testing.
I'm now optimistic that adding this protection would benefit genetic research and individual health. Rather than discouraging people from getting tested for inherited characteristics that could one day affect their health, it would likely encourage testing and thus advancements in scientific knowledge that offer so many potential benefits.
That's the prepared remarks. I thank you for your attention and look forward to answering your questions.
The Chair: Thank you, Mr. Langtry, for your presentation. I have a question. Earlier this morning we heard about using the ground of disability to try and bring genetic discrimination or systemic discrimination. Have you had any cases like that?
Mr. Langtry: Because it's not specifically defined, our key word search would not show up cases. I can say that we've obviously received complaints and many complaints on perceived disability — actual or perceived disability — in terms of genetics. We only have one case that comes to mind, and it is not tying it to the ground of disability. It's actually on race, national, ethnic origin, family status and sex, which is a woman who brought a complaint against a First Nations government.
The case is currently in mediation but is saying that the band required that she undergo DNA testing to be able to determine whether she is eligible for membership in the band and therefore eligible to receive all of the benefits that membership in the band has. It's a service, not an employment situation, as well. That would be an example I would offer. If it had to be tied to disability it would not be coming forward because it's not a disability case.
The Chair: Mr. Langtry, with you are Fiona Keith, Acting Director and Senior Counsel; and Marcella Daye, Senior Policy Advisor, who will assist you in answering questions.
We will start with the sponsor of the bill, Senator Cowan.
Senator Cowan: I have just one question if I could, and it has to do with your observations. You're obviously following the international scene in your area closely. If we were to move to legislate in this area, would we be moving into unchartered waters, or will we be catching up with the rest of the world? I don't mean country by country but in a general sense.
Mr. Langtry: Certainly there are many countries that have regulation or guidelines dealing with genetic testing and genetic discrimination. Not being an expert on it, I am advised that we are the only country in the G7 that does not have regulation or a guideline on this issue. Certainly a number of European countries and Australia have regulation, so no, it would not be unchartered territory.
Senator Eaton: Mr. Langtry, the Canadian Charter of Rights and Freedoms, which I'm sure you know by heart, guarantees that every individual is equal before and under the law and has the right to equal protection, race, national, ethnic, colour, religion, sex. They also have something called analogous grounds. Would genetic discrimination be considered or could it ever be considered an analogous ground?
Mr. Langtry: I would defer to Ms. Keith on that, but my first answer would be that there are often times where courts will read in analogous grounds. Basically, of course, Charter constitutional law is given a very broad interpretation, as is the Canadian Human Rights Act. It has been viewed as and found to be quasi-constitutional, and so in interpretation it is to be given a broad, liberal and purposive interpretation. But I would defer as well to Ms. Keith.
Fiona Keith, Acting Director and Senior Counsel, Canadian Human Rights Commission: To add to what Mr. Langtry has said, you are correct; the approach under the Charter is one of analogous grounds, which permits judges to add grounds of protection under section 15 of the Charter.
The choice of Parliament under the Canadian Human Rights Act is quite different. We have a list of grounds in the act. They are added to from time to time by way of legislation. However, it is a closed and enumerated list, and it's not possible for courts to add to that list, although a court or a tribunal could interpret an existing ground, for example disability, to include a broader range of protection than may have been contemplated when the bill was first passed.
Senator Eaton: The Supreme Court has concluded that this list of prohibited grounds of discrimination, which was ethnic origin, colour, religion, sex, is not exhaustive and has determined that there are analogous grounds that could also be considered as included.
Ms. Keith: You're right in that. A different legislative approach is taken under the Charter, which is part of the Constitution, and under the Canadian Human Rights Act, which is a statute. Under statutory law, it's not possible for a tribunal or a court to add a ground. That list of grounds is a closed and enumerated list, contrary to section 15 of the Charter.
Senator Eaton: Could somebody re-open it in a case? If a case came before them, could they re-open it and add genetic discrimination as another ground?
Ms. Keith: No, they could not. They could encourage or ask a tribunal or a court to interpret an existing ground, for example disability, to include some level of protection, but it might not be a complete range of protection as it would be if the ground of genetic characteristics existed as part of a list.
The Chair: Mr. Engelmann talked about systemic discrimination. Can you tell us what the criteria are? Under what circumstances will somebody be provided legal counsel? What are the criteria for systemic discrimination?
Mr. Langtry: Clearly, in any case that we believe is alleging systemic discrimination as opposed to an individual complaint, we would participate in that at tribunal. But we have a number of criteria, and certainly since the Supreme Court has determined that legal costs are not recoverable in a Canadian human rights complaint process, we have looked at instances where we provide or our legal counsel attend on a case.
We are responsible under the act to represent the public interest, so we represent neither the complainant nor the respondent, but we represent the public interest. So we look at a case on a case-by-case basis that we have referred to the tribunal and make a decision whether or not to participate. There are a number of factors that we take into consideration, such as whether it is in fact an individual complaint where the law is fairly clear and it's simply a question of establishing the facts as alleged by the complainant or the respondent. Is the complainant represented by legal counsel or self-represented? What is the nature and seriousness of the allegation and potential damages? And certainly whether it might be addressing a policy of a respondent that could affect a large number of people as opposed to an individual.
About half of our complaints are represented by legal counsel already, so we do take into account those. I can also say that almost as a matter of policy, if you will, because of the still relatively recent amendment to our legislation repealing the section that would not allow us to take complaints against First Nations governments or against the federal government under the Indian Act, all matters that we have referred to tribunal since the repeal of section 67, that section, we have participated at tribunal.
It's clearly a matter of resources. We have to prioritize those that we invest our time on. Honourable senators may be aware of the child welfare case, the First Nations Child & Family Caring Society, which is before tribunal. We've completed the 68 days of hearing and so on. We fully participated in that, representing the public interest. We had several lawyers involved at the hearing. So it's a fairly significant involvement when we're involved in systemic discrimination, much like a pay equity case as well.
The Chair: As you know, we ask you to appear on a regular basis, and we also hear from individuals about how long it takes to get a complaint through the human rights processes. As you know, this hearing today is being watched by some Canadians. I would appreciate it if you would quickly set out the process of how an individual goes through a complaint. It would be useful at this time.
Mr. Langtry: Sure. I would like to say at the outset that we, of course, monitor on an ongoing basis the average age of our cases. Currently, about nine and half months is the average age of a case at the Canadian Human Rights Commission.
We just in the last year have implemented, as part of our initiative or endeavour to be more accessible — access to justice is obviously one of our important priorities at the commission. We do have an online assessment tool so a person can go on to see if they in fact are within federal jurisdiction or whether it is a provincial matter. Does it fall within one of the grounds and so on? They can either call and we have intake services, or they prepare a written complaint form and submit it to the commission.
We do an initial look at that at intake to ensure it conforms and it sets out all of the things that are necessary, and then the file is opened. Respondent parties are offered mediation at every stage, and many of our cases do in fact settle through the mediation process. We can also order conciliation, but a respondent upon being notified may raise preliminary objections, so there has to be an issue determined as to whether or not the case should be referred out to a grievance process, alternate dispute, or whether it's outside the jurisdiction of the Canadian Human Rights Act and the commission, if it's more than one year since the allegations and so on.
Once that screening is done, then it goes to investigations, and we have investigators who interview witnesses and so on, prepare a report with recommendations. That is sent to the parties. The parties have the opportunity to reply, and then it goes before the commissioners for a decision. We either dismiss the case or can send it on to tribunal. Fewer than 20 per cent of the cases we receive are sent to tribunal.
Senator Eggleton: Given the discussion we had in the last panel, I'm not sure you want me to raise this, but anyway, what would you do if somebody came to you with a complaint of discrimination on the basis of insurance that was denied them, under the current law?
Mr. Langtry: Under the current law we do not have jurisdiction over the insurance industry. It's federally regulated private sector companies, so as I say transportation, telecommunications, banking industry, but not insurance companies. Every province and territory has a human rights commission or human rights tribunal or both. Often we will have a complainant come to us and it is really is a provincial jurisdiction, so we would refer them to the provincial or territorial human rights commission.
Senator Eggleton: What if the person was denied some form of health care insurance and was an employee of a federally regulated company, for example, like a transportation company?
Mr. Langtry: Just to get clarification, from the federally regulated employer who did not provide the coverage? Then presumably we would be able to receive that complaint, if it's a benefit of the employment, as opposed to that they happen to be an employee of a federally regulated company, but go to an insurance company and are denied coverage, which in that case would not be covered.
Senator Hubley: Just on that, I'm wondering if Bill S-201 has been discussed with your provincial and territorial counterparts. Is that an ongoing debate? We have heard from a previous witness that there may be a constitutional issue that's involved, as far as the insurance company goes. But is this something that is on the table with the Human Rights Commission?
Mr. Langtry: It is a matter of particular interest to all human rights commissions. We have an association called the Canadian Association of Statutory Human Rights Agencies, CASHRA, which all provincial and territorial commissions belong to. We have a monthly teleconference call, and twice a year we have an in-person meeting. This has been an issue that we have talked about, not Bill S-201 specifically — the issue, certainly we've talked about that — but many of the province are interested and have been working to have similar legislation passed in their own province. I am aware Ontario did have a private member's bill. There is some speculation that it may be reintroduced. We have invited some of the same people who have been before you, who have spoken to all of CASHRA. There is quite an interest from CASHRA members across the country.
The Chair: Do you know if provincial commissions are using disability to address genetic discrimination complaints?
Mr. Langtry: I'm not sure whether Ms. Keith would be aware of that or Ms. Daye. It's not a specific conversation I've had with them, but my understanding is yes, they would, if somebody were to come in with a complaint. Most human provincial and territorial rights codes are similar to the Canadian Human Rights Act but covering provincial jurisdiction. Many of the grounds are similar. None of them have genetic discrimination built into them but would have to look, as do we, on the definition, whether it be disability or another ground, in order for it to be received.
The Chair: As all of us here know, discrimination grounds are evolving as society changes and our values change and how we look at things. Do you do consultations with the provinces, and does your federal commission look, be proactive? For example, have you had consultations on genetic discrimination, especially after the Speech from the Throne, as being introduced as a ground of discrimination?
Mr. Langtry: Ms. Daye from a policy point of view has spoken with other commissions and might speak to it from a policy point of view. In terms of grounds, generally, yes, through our association we do and are maintaining a running tally to see what the similarities are between provinces. There is a rightful concern that protections on one coast may be entirely different on the other coast because it's provincially regulated. Grounds may exist in one province and not be in another province. So, yes, we talk about that and we look at that. One example that comes to mind from the Canadian context is that every province and territory has social condition, or words to that effect, in their code. There is no social condition ground in the Canadian Human Rights Act. It's the only jurisdiction that does not. So we've talked about that and looked at the issue. In part, some of the commissions have talked about — through law reform commissions or otherwise — developing a model human rights code that could be shared with legislatures across the country to have some conformity or uniformity. I would invite Ms. Daye to talk about genetic discrimination specifically.
Marcella Daye, Senior Policy Advisor, Canadian Human Rights Commission: We have not had what I would call formal consultations on this topic, but we have had ongoing stakeholder engagement, probably at least over the last five or six years. We've been involved in a conference held by Genome Canada, which investigated some of the insurance and discrimination issues in 2009 or 2010, I believe. We were part of the round table discussions that the Office of the Privacy Commissioner of Canada held as they were developing their research papers and position papers on the matter. We have had meetings with representatives from both the Canadian Life and Health Insurance Association and the Canadian Institute of Actuaries, as well as the Canadian Coalition for Genetic Fairness, and on an ongoing basis we keep in contact and try to understand their concerns so that as we approach the issue, we understand what the stakeholder interests are as well.
I was encouraged to see that at least we had some of the people right because they were appearing before you as well. So I think it was important to hear from as many of the stakeholders as we could, as well as our CASHRA counterparts. We have also received some information from the international community, understanding a little bit better what some of the UNESCO and other conventions are in the EU, but there was not a lot of formal consultation.
The Chair: Being the only G7 country that does not have legislation on genetic discrimination, to understand the process better, especially from a policy point of view, do you do any proactive work to say that this could be a ground of discrimination and this is something we should look at? Do you work with the government? When you talk about stakeholders, is it just private? Is it the federal government, the provinces — do you encourage them to look at it? I'm not trying to pry into any private situation, but from a public point of view, what is the commission doing to raise this issue?
Ms. Daye: At this stage, we were in the process of understanding the issue clearly in order to develop a position statement. We developed that statement in, I believe, 2010 and revised it just recently in 2014, so that we understood what we were coming to the table with.
We did have a meeting with Senator Cowan to understand Bill S-201 in greater detail, and that helped to inform how we come to this table. We certainly remain open to coming before Senate committees and offering our views and opinions.
That's the state of our policy consultations now. Should things move further, we certainly have it open to investigate in more detail, for example, the U.K. model, which we've touched upon here. It is quite a detailed model with quite a number of features, such as panels that are set up to examine which mutations are allowable in the insurance industry. There is a level of detail at the lower levels of the iceberg that we have not engaged with yet.
The Chair: Are you doing any public education on the issue of genetic discrimination?
Ms. Daye: Our resources are limited, and our public education at this point has been in terms of staying engaged on social media and on sharing our position statement with other stakeholders we have engaged with. That has been the extent of the public engagement we have. Wider public engagement, for example, through the press or through some sort of education campaign, is always subject to resource limitations and the other priorities that we have at the commission. Having genetic discrimination as a separate ground may, in fact, provide more underpinning to do additional public education and policy work in the future.
The Chair: Mr. Langtry, you talked about looking at data, and the words ''genetic discrimination'' had not come up. How do you track cases so that you would know? You did say that you had tracked and that those words had not been used, but normally is there any other way you could track to find out if there have been any complaints?
Mr. Langtry: Sure. We do search by key words. That would tell us whether we've had cases in a particular area, particularly through the first key word or the 11 current enumerated grounds. We would do a search of that under disability, and then add further key words to refine it down — what are the grounds, for example, and that kind of thing. Then we would look as well by respondent.
We are undergoing at present a project to better define or identify the cases that we have so that it's not as long a process as going through and having to pull up cases that may potentially be identified and then have to really look through them.
As I say, the one I had identified earlier was one because it's currently before mediation so it's somewhat top of mind, but we do not have ''genetic'' as a term we would identify cases with currently.
The Chair: Would the commission look at genetic discrimination as coming under the disability category?
Mr. Langtry: We would, either as disability or perceived disability, if that was the allegation, that what the genetic test disclosed has the potential for disability. An employer may look at that and say there's the possibility or a higher likelihood that this person will become disabled in the future and therefore they will not hire him or her. That could be brought in under the perceived disability, and we would accept a complaint on that basis if they have done that linkage.
At the present time, as Ms. Keith has said, because there are enumerated grounds and it can only be those grounds, they would have to bring the genetic discrimination under one of the existing grounds, whether the one I referred to on race and national ethnic origin or disability, perceived disability.
The Chair: So do we need a separate ground for genetic discrimination if we can bring it under disability?
Mr. Langtry: The reality is that often we would say it's better if you have an explicit ground so that you don't have to advance the argument and perhaps litigation as to whether or not it in fact can be brought in under an existing ground, if there isn't a linkage done to that. I used the example earlier of whether genetic testing at some point could be a predictor of behaviour. If an employer refused to hire somebody because of the behaviour, that would not necessarily be a disability or any of the existing grounds. If it is explicit in our legislation, it removes any doubt. Again, if the intention is to encourage genetic testing for all of the benefits it can bring, if a person knows clearly that that cannot be used against them or their children in an employment or service provision, then I think it would be better, but we will continue to interpret our legislation and the definitional grounds in a broad way to receive a complaint rather than not.
The Chair: Have any of you heard of any provincial cases of discrimination such as insurance not being provided because of disability? Have you dealt with any cases?
Ms. Daye: There is one case in Quebec called Boisbriand, which you may in fact be familiar with, where an individual had their employment affected because of a predisposition to a disability. That was the only case that we could locate provincially on this area. It might be useful to note that your previous witnesses have indicated that the stories and the evidence that they're seeing is really at the front lines where people are feeling discouraged, so it's not unusual for us to see a lack of cases at our level because it's quite likely that they are not bubbling up to our level quite yet.
Senator Ataullahjan: You just mentioned the Boisbriand case. Did this decision affect your current work with regard to genetic discrimination and its falling under the auspices of perceived disability?
Ms. Daye: Because it was not a case under the Canadian Human Rights Act, it was not binding on us, but it did provide case law to demonstrate that a perceived disability could fall under the category of disability, so we could integrate that analysis into our own work.
When the Canadian Human Rights Act was reviewed as part of a broader review of our act, which resulted in the La Forest report, it was also recommended that the propensity to develop a disability would be a ground that they recommended to add to our act, so there have been provincial cases but also federal recommendations to consider adding that ground to our act.
One of the challenges of placing the ground under disability, as the chief commissioner has mentioned, is that that requires litigation on every single case to make the argument that in this individual case the genetic discrimination that is alleged would fall under the ground of perceived disability, which is a lot of litigation in every single case.
It also would mean that if there was a case where an alleged account of genetic discrimination were raised that was related to a separate ground, it would require completely separate litigation on every single one of those cases — for example, if someone was attempting to link it to ancestry or family status. However, a stand-alone ground would eliminate the need for all of that preliminary litigation.
The Chair: I want to thank all three of you for your presentation and always making yourselves available to us. Thank you very much.
Senator Cowan: Chair, may I ask a question? We've concluded the panels now. Can we proceed to clause-by-clause consideration?
The Chair: We were wanting to leave this open and look at it over the holidays. When we come back in the new year, I'm sure we'll be look at clause by clause.
Senator Cowan: This has been before the committee now since June. Other bills have come later and have been dealt with already. I'm not a member of your committee on a regular basis, so I don't know your practices, but this is an important issue and I think we should move on with it.
The Chair: Senator Cowan, I hear you.
Senator Cowan: Thank you.
The Chair: We will consider that at steering.
Honourable senators, staff and all those who are present here, this is our last meeting for this year, and I want to take this opportunity on behalf of steering and myself to wish you all a Merry Christmas and a Happy New Year.
I also have a statement I have to read to you from Bill Crosbie, the assistant deputy minister, on another matter, The Hague Abductions Convention. He has written to us as follows:
Honourable senators,
At our meeting of November 6, we heard from Bill Crosbie, Assistant Deputy Minister from Foreign Affairs, Trade and Development Canada in relation to our study of The Hague Abductions Convention. At the time, he was asked the following question from Senator Tannas:
If I just up and decide to leave my wife tomorrow and take the kids, and she has not given permission and there is no knowledge, I could do that and not be breaking any laws in Canada?
Mr. Crosbie has contacted the committee to provide the following clarification to his answer:
During my testimony, I indicated that there would be no law broken if a parent left their spouse and took the kids without the other parent's permission or knowledge if there was no custody order. I would like to clarify that that is incorrect and that the Criminal Code child abduction offences do cover wrongful abductions by parents where custody orders have not been made. If more detailed information is desired regarding these offences, Justice officials would be in a better position to respond.
Honourable senators, thank you for your presence here today, and I wish you a Happy New Year.
(The committee adjourned.)