Erring in Law and in Fact
The Supreme Court of Canada’s Reference re Genetic Non-Discrimination Act
Keywords:Constitutional law, Criminal law, Federalism, Division of powers, Double Aspect Doctrine, Genetic discrimination, Genetic testing, Privacy law, Health law, Contract law, Stakeholder engagement, ELSI
Genetic discrimination has been a public concern for decades but supported by limited evidence. Following a reference from the Quebec government, the Court of Appeal of Quebec considered sections 1 to 7 of the Genetic Non-Discrimination Act (GNDA) were ultra vires of Parliament’s criminal jurisdiction (2018). In a 5-4 decision, the Supreme Court of Canada upheld the validity of the GNDA (2020). We contend that the majority’s reasoning contains serious errors in law and fact, raising constitutional and scientific concerns. We believe the majority incorrectly determined both the pith and substance of the provisions and the reasoned apprehension of harm standard.