Proceedings of the Standing Senate Committee on
Human Rights
Issue no. 2 - Evidence - March 9, 2016
OTTAWA, Wednesday, March 9, 2016
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 11:51 a.m. to give clause-by-clause consideration to the bill.
Senator Jim Munson (Chair) in the chair.
[English]
The Chair: Good day and welcome to the Standing Senate Committee on Human Rights.
[Translation]
I would like to welcome the members of the public who are with us in the room and the television viewers who are watching us throughout the country. We are meeting today to continue our consideration of Bill S-201. We have heard a lot of witnesses, and we will now proceed to clause-by-clause study of the bill.
[English]
Before we begin, I would like all senators to introduce themselves.
Senator Frum: Linda Frum, Ontario.
Senator Ataullahjan: Senator Ataullahjan, Ontario.
Senator Hubley: Elizabeth Hubley, Prince Edward Island.
Senator Martin: Yonah Martin, British Columbia.
Senator Andreychuk: Raynell Andreychuk, Saskatchewan.
Senator Cowan: Jim Cowan, Nova Scotia.
The Chair: I am Jim Munson from Ontario.
There are a couple of points before we get into the clause-by-clause process. Thankfully the clerk has eliminated a lot of things that my friend Senator Manning had to do yesterday. He was into Beauchesne and back 150 years into the history of this country, making it simpler for us.
If at any point a senator is not clear where we are in the process, please ask for clarification. We must do our utmost to ensure that we at all times have the same understanding of where we are in the process.
Before we take up a proposed amendment to a clause, I will verify whether any senators had intended to move an amendment earlier in that clause. If senators do not intend to move an earlier amendment, they will be given the chance to do so.
One small point: If a senator is opposed to an entire clause, I would remind him or her that in committee, the proper process is not to move a motion to delete the entire clause but rather to vote against the clause standing as part of the bill.
As chair, I will do my utmost to ensure that all senators wishing to speak have the opportunity to do so. For this, however, I will depend on your cooperation. I will ask all of you to think of other senators and to keep remarks to the point and as brief as possible.
Finally, I wish to remind honourable senators that if there is ever any uncertainty as to the results of a voice vote or show of hands, the cleanest route is to request a roll call vote, which provides clear results. Senators are aware that any tied vote negatives the motion in question.
If you have any questions — please don't have any questions on this because this is far too complicated for a former reporter. This is a new process that they have introduced, which I have seen in our committee work.
I would like to move ahead now with clause-by-clause consideration of Bill S-201, An Act to prohibit and prevent genetic discrimination.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill S-201, An Act to prohibit and prevent genetic discrimination?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 2 carry?
Senator Andreychuk: Senator Munson, as you know I have had concerns about the constitutionality of the bill and the process with the provinces. I received recently, as I think most of you did, a long brief addressing some of those issues. I know there will be amendments, so I will be abstaining from the vote on the bill, reserving my right to speak to it at third reading. However, I don't wish to stop the process. I believe that others are of a different mind. I will abstain from the voting, and I wanted that noted in the record. I will participate in the observations that I think will come. I am certainly in favour of those. I just wanted to put that on the record.
The Chair: Thank you. I appreciate those thoughts, and I absolutely agree with you.
Shall clause 2 carry?
Some Hon. Senators: Agreed.
The Chair: Shall clause 3 carry?
Some Hon. Senators: Agreed.
The Chair: Shall clause 4 carry?
Some Hon. Senators: Agreed.
The Chair: Shall clause 5 carry?
Senator Cowan: Mr. Chair and colleagues, when he testified on February 24, the Privacy Commissioner of Canada proposed an amendment to clause 5, which you will find on page 2 of the bill. As drafted, the clause reads:
It is prohibited for any person who is engaged in an activity described in any of paragraphs 3(1)(a) to (c) in respect of an individual to collect or use the results of a genetic test of the individual without the individual's written consent.
The Privacy Commissioner, you will recall, suggested that we add the word "disclose'' after the words "collect or use.'' In his words, this would afford individuals even greater control over their personal information, and it would be consistent with our privacy laws. The Privacy Commissioner and his office have obviously done a lot of work in this area, and I would take the commissioner's advice and agree with him that the addition of the word "disclose'' would strengthen that clause. Accordingly, Mr. Chair, I move:
That Bill S-201 be amended in clause 5, on page 2, by replacing line 25 with the following:
"individual to collect, use or disclose the results of a''.
The Chair: It has been moved by Senator Cowan:
That Bill S-201 be amended in clause 5, on page 2, by replacing line 25 with the following:
"individual to collect, use or disclose the results of a''.
Senator Frum: I second that motion.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Agreed.
The Chair: Shall clause 5, as amended, carry?
Some Hon. Senators: Agreed.
The Chair: So clause 5 carries as amended.
Shall clause 6 carry?
Some Hon. Senators: Agreed.
The Chair: Shall clause 7 carry?
Some Hon. Senators: Agreed.
The Chair: Shall clause 8 carry?
Some Hon. Senators: Agreed.
The Chair: Shall clause 9 carry?
Some Hon. Senators: Agreed.
The Chair: Shall clause 10 carry?
Senator Cowan: Mr. Chair and colleagues, you will recall that I spoke at second reading in the Senate and also in my opening remarks when I testified here before the committee that the bill before us included a change to the amendments to the Canadian Human Rights Act, specifically a definition of "discrimination on the ground of genetic characteristics.''
Last week we received a written submission from the Canadian Human Rights Commission in which the commission reiterated its support for the addition of genetic characteristics in sections 2 and 3.1 of the Canadian Human Rights Act as a prohibited ground of discrimination. However, the commission went on to disagree with the proposed addition of a definition of the prohibited ground in a proposed section 3(3) of the act. The commission's words were as follows: "Definitions can limit the interpretation and evolution of a ground and may provide inadequate protection under human rights legislation.'' The commission asked us to remove this clause altogether.
I understand the concerns expressed last time by some witnesses and by Senator Frum, and I assume they would want some language linking genetic characteristics to genetic testing. Therefore, I assume that colleagues would not want to remove the clause altogether.
In discussion with the commission, they anticipated this and propose an alternate approach in their brief. That word raised some issues with our own law clerk, and I'm sure the goal we all share is to get the best possible wording here.
I respect the work of the commission on this issue, but after discussion with our drafters in the clerk's office and with the commission, we have come up with the wording that we understand is acceptable to the commission and also meets the concerns of our own law clerk. The new language would not define "genetic characteristics'' and so would address the commission's concern with the existing bill, but it would colour the meaning of "genetic characteristics'' as referring to genetic tests.
Accordingly, I move:
That Bill S-201 be amended in clause 10, on page 6, by replacing lines 35 to 40 with the following:
"(3) Where the ground of discrimination is refusal of a request to undergo a genetic test or to disclose, or authorize the disclosure of, the results of a genetic test, the discrimination shall be deemed to be on the ground of genetic characteristics.''.
Senator Andreychuk: I have a question.
The Chair: We are open for comments. Senator Andreychuk?
Senator Andreychuk: Senator Cowan, is the intent of this to allow the Human Rights Commission to continue to have broad jurisdiction over "genetic characteristics'' but for your bill to then have a deeming feature for just that definition, not exclusively?
Senator Cowan: Exactly.
Senator Andreychuk: Thank you.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Agreed.
The Chair: Shall clause 10 carry, as amended?
Some Hon. Senators: Agreed.
The Chair: Shall clause 11 carry?
Senator Cowan: Mr. Chair, perhaps I can make some introductory comments with respect to clauses 11, 12 and 13. My comments would apply to all of those. As you mentioned at the beginning, the appropriate motion is not to move to delete but to simply vote against a clause that you object to.
In my original bill, which was tabled on two previous occasions, I didn't propose amendments to the Privacy Act or to the Personal Information Protection and Electronic Documents Act, which we know as PIPEDA. Last June, just before Parliament rose, the previous government tabled a bill in the House of Commons, Bill C-68, to combat this issue of genetic discrimination. That bill contained amendments to the Privacy Act and to PIPEDA.
As I said in my speech in the chamber and again in my introductory remarks, I wasn't convinced that those amendments provided what Canadians needed or expected by way of protection, but the previous government obviously felt that they did. Therefore, I included them in the bill that I tabled on December 8 and the one we have before us today.
When the Privacy Commissioner testified on February 24, he said this:
The bill also proposes to amend both the Privacy Act and PIPEDA by adding "information derived from genetic testing'' to the definition of personal information. In our view, adding to the definition of personal information is at least unnecessary and perhaps harmful.
He went on to say that he thought these amendments would "serve no useful purpose and would only add unnecessary confusion.'' So he proposed that we delete clauses 11 and 12 from the bill.
I am prepared to accept the advice of the Privacy Commissioner. I certainly don't want — and I don't think anyone would want — to narrow the definition of "personal information'' or certainly to add unnecessary confusion.
Accordingly, I would propose to vote against clauses 11, 12 and 13 and to delete them from the bill.
The Chair: Shall clause 11 carry?
Senator Cowan: Senator Frum may want to speak on that.
Senator Frum: No, I want to support your motion and agree with you.
The Chair: Shall clause 11 carry?
Some Hon. Senators: No.
The Chair: It is defeated.
Shall clause 12 carry?
Some Hon. Senators: No.
The Chair: Clause 12 is defeated.
Shall clause 13 carry?
Some Hon. Senators: No.
The Chair: Clause 13 is defeated.
Moving right along. Politics is very exciting.
Back to the beginning, shall clause 1, which contains the short title, carry?
Some Hon. Senators: Agreed.
The Chair: Carried.
Shall the title carry?
Some Hon. Senators: Agreed.
The Chair: Carried.
Shall the bill, as amended, carry?
Senator Cowan: I understand there is another procedural motion that should be moved. I move:
That the law clerk and parliamentary counsel be authorized to make any necessary changes to the numbering of provisions and cross-references in Bill S-201 as result of the amendments to the bill.
The Chair: Is it agreed?
Some Hon. Senators: Agreed.
The Chair: Shall the bill, as amended, carry?
Some Hon. Senators: Agreed.
The Chair: The bill, as amended, is carried.
Does the committee wish to consider appending observations to the report?
Senator Frum: Yes, chair, if I may.
The Chair: I think we normally move in camera because of the draft nature of observations. We don't have to, but we can. It is up to you.
Senator Frum: I would rather not. If we can keep it on the record, I'd prefer that.
Hon. Senators: Agreed.
The Chair: We are living in transformative times, open and transparent.
Senator Frum: From our side, we would like to add observations to the bill because, as has been clear from the way that we have voted today, we do support the principle of the bill. There are members on our side, as Senator Andreychuk has already expressed, but there are others of us —
Senator Cowan: Do we have a copy?
Senator Frum: Yes. I think they are coming now, sorry.
While they are being circulated, may I say that others of us continue to have concerns about the constitutionality of the bill and concerns around whether or not the matters dealt with in this bill fall within federal or provincial jurisdiction. We would like those concerns expressed in the observations, and they are being circulated now.
We also want to note in the observations that we did reach out to the provinces and the territories, asking for their views on the constitutionality matter in particular. We did get five responses in return, and we did not receive any comment on that for the time being.
I think it is the position of those of us on this side that we'd like to see this bill proceed, go to the House of Commons and receive more debate. We'd like to see it receive attention in the provincial legislatures. We feel the issue being dealt with here is extremely important, and we simply want to attach our concerns about the jurisdictional issues involved.
The Chair: For the record, would you mind reading into the record the observations that I have in front of me? That would be important for people interested in this and viewing this procedure.
Senator Frum: Yes, I would like to. The observations would read:
We would like to reiterate our full support for the principle behind this bill.
Taking into account the complexity of the issues raised by the witnesses, their various but legitimate interests, as well as the medical, technological, social, legal and constitutional aspects of this bill, members of the committee urge the Government of Canada to engage the various national stakeholders in this important issue.
Concerns related to the constitutional aspects of some measures were expressed by certain members of the committee and some witnesses. Other members and witnesses were satisfied that the bill is a valid exercise of the Federal power. The issue of genetic discrimination is multi-jurisdictional and the Committee urges that representatives of the Government of Canada meet with their provincial and territorial counterparts to address genetic discrimination in their respective jurisdictions.
The Committee sent letters to the governments of the ten provinces and three territories, seeking their views concerning Bill S-201. As of March 9, 2016, five responses had been received and none offered comments, nor expressed concerns at this time.
The committee invites the Government of Canada to state its position clearly at the earliest opportunity.
Senator Cowan: Senator Frum was kind enough to meet with me yesterday to share her initial observations. We had a good discussion about this. We share concern about this issue and we share a desire to do the appropriate thing to combat this discrimination.
Certainly we all understand that we have received conflicting views about the constitutionality of the bill, which is to be expected. When you ask lawyers or constitutional experts, as long as you ask more than one, you're likely to get more than one opinion. As a former lawyer I can say that, I guess.
We have strong evidence before the committee that this is a valid exercise of the federal power. We've also received opinions, which we need to respect, that there are concerns.
As Senator Frum has pointed out, and to the committee's credit, the committee wrote to all provinces and territories asking for their views on this issue. I also sent letters before Christmas to all provinces and territories. The responses I received were similar to the ones that the committee received indicating that they were watching this process with interest, but none expressed any opposition or concern about the federal Parliament legislating in this area.
It is appropriate for us to be mindful of jurisdictional issues and of the fact that concerns have been expressed. We on both sides think it's appropriate that as a committee we make the observations that are contained in this report.
Also important is the point made by Senator Frum in her observations that this matter is not just for parliamentarians. Parliamentarians have a responsibility, legislators have a responsibility, to take action; but civil society has a responsibility as well. There are many stakeholders in Canada who need to become more aware of this issue, and they are becoming more aware of this issue. Anything we can do to contribute to the debate and to elevate the debate is well worthwhile.
I thank colleagues for their support. I appreciate the concerns that some colleagues have. I don't share those concerns, but I respect those who do. The appropriate action for us to take is to flag them in observations and to move the bill to our chamber and then hopefully to the other place as quickly as possible.
Senator Martin: I want to echo the sentiments of Senator Frum in expressing my support of this bill in principle.
Senator Cowan, the work you have done on this bill is truly commendable.
With regard to these observations, I would be more comfortable, and I bring this to the attention of my colleagues, if at the end of the second-last sentence "As of March 9, 2016, five responses had been received and none offered comments,'' we were to remove "nor expressed concerns'' and conclude the sentence with "at this time.'' It would read, "and none offered comments at this time.'' I'm not necessarily convinced that the provinces do not have concerns; they may not have expressed them. They may have contributed some comments. It's important for these observations to be clearly factual. They did not offer comments, but their lack of response or the concise response we may have received doesn't necessarily reflect the concerns they may have.
Once the provinces are engaged and looking at this issue with more attention, other concerns may be raised at that time. At this stage, I feel we haven't heard enough from the provinces to include such a phrase in our observations. I would be more comfortable to have this expressed as "none offered comments at this time.''
Or we could even take out "at this time'' and just say "five responses had been received and none offered comments.''
Senator Cowan: This is Senator Frum's wording. We should state what we received. It's my understanding that the letters we received from the provinces, in fact, do not offer comments or express concerns. That's a fact. If they have concerns, they haven't expressed them. It's a factual statement, Senator Martin, to say that the responses did not offer comments or express concerns. I think this is an accurate reflection of what we have received.
Senator Frum: Certainly there is a neutrality in what Senator Martin is proposing. If it were agreeable to you, it might say enough by simply saying that "none offered comments.'' It's true that there is an interpretation component in saying that they did not express concerns, but there is just a factual component to saying that they did not offer comments. If that's agreeable to you, perhaps we can make that modification.
Senator Martin: If I may add to that, I was surprised that we did not hear from the provinces and that what we received really didn't contain a lot of substance. I think it's because this is something that they will have to study carefully. We know that there are jurisdictional complexities. We didn't hear enough for me, as a member of this committee, to support the phrasing of this particular observation in this way.
I'm asking committee members whether they would agree to removing that last phrase in that sentence.
The Chair: Which phrase is that?
Senator Martin: ". . . nor expressed concerns at this time.''
Senator Hubley: If we have written letters to provinces and asked them to offer comments and to express their concerns and they've chosen not to because they really are not up to scratch with what we're doing here, I think the comment is valid that we have in place now. I think we can leave that as "none offered comments, nor expressed concerns at this time.''
I don't sense that it has any confrontational issue. I think it's just expressing the situation that we have found ourselves in, that we did approach the provinces and that they didn't perhaps respond to the extent that they might have. But I think this is a valid comment. I think by the bill going forward and certainly with the observations here, which insist that we engage various national stakeholders in this important issue, we have attempted to do that. It's probably very appropriate that it remain in there because it is part of the factual content of the work we were doing.
The Chair: Senator Andreychuk, is this the point you wanted to speak to, or is it another point?
Senator Andreychuk: This plus another point.
I think the most important part of the observation is the first sentence: There is unanimity to support the bill's principle, as Senator Cowan has put it in his three reiterations of this bill. I think that's fair.
The dispute has come is as to whether it is a jurisdiction of the federal government and to what extent in the bill. So our conversations have been around whether it is federal or provincial. I want to underscore — and I believe this is a general comment about those who have looked at this bill — that most people want that principle upheld. It's how to get there that's the problem.
On this, I tend to agree with Senator Martin. Saying that five provinces responded "and none offered comments, nor expressed concerns at this time,'' I'm not quite sure whether that means the five responses or it means the others, so I have that ambiguity to worry about.
But the other is if we say they didn't express concerns, they didn't also express support. They were going to watch and take note, so either we are neutral or we're not.
Having sat on the Legal and Constitutional Affairs Committee for many years, I know that we often wrote the provinces and that they chose not to respond on the basis that they wanted to negotiate with the Government of Canada, not the Senate of Canada. It varies from administration to administration, government to government.
I would hope that we would say that none offered positive comments nor expressed concerns. In other words, I think they were very neutral. Nova Scotia went into more detail but didn't come down on the bill. So they're all reserving their right, very justly, to deal with the Government of Canada.
The Chair: Senator Cowan?
Senator Cowan: I give up. I appreciate the points that colleagues are making.
I think they were neutral on it. As you say, they were not asked for support or not to have support. They were simply invited to provide comments, and I think to say that they haven't provided comments is fine. I would be quite happy if we simply deleted those words "nor expressed concerns.'' I think that would be appropriate, and I would support it on that basis.
Senator Frum: I want to thank Senator Cowan for that. I appreciate it. I think that is an improvement on the observations.
The Chair: So we will just take out the phrase "nor expressed concerns.''
You talked about the ambiguity —
Senator Frum: You can also take out "at this time,'' even just say, "none offered comments,'' period.
Senator Cowan: I think some of them did say that they had no comments at this time. I don't have the letters in front of me. I think perhaps it's better to leave that in because they may have comments at some later point. So I would leave those words in.
Senator Frum: You're right.
The Chair: So we've agreed that we will take out "nor expressed concerns'' and leave it at that. Agreed?
Hon. Senators: Agreed.
The Chair: Do the observations carry?
Hon. Senators: Agreed.
The Chair: Is it agreed that the Subcommittee on Agenda and Procedure be empowered to approve the final version of the observations being appended to the report, taking into consideration today's discussion and with any necessary editorial, grammatical or translation changes as required?
Some Hon. Senators: Agreed.
The Chair: All right; a great moment in history. Is it agreed that this bill be reported, as amended, with observations, to the Senate.
Some Hon. Senators: Agreed.
The Chair: Carried.
I congratulation this committee for the way it works, and the way we seek the art of compromise on a very important bill. Thank you.
(The committee continued in camera.)