Wilson-Raybould wants Supreme Court advice on genetic non-discrimination bill

OTTAWA — Justin Trudeau's government wants the Supreme Court of Canada's advice on a bill aimed at preventing genetic discrimination after the prime minister failed to persuade his own Liberal backbenchers that it's unconstitutional. 

Just one day after 104 Liberals joined forces with Conservative and New Democrat MPs to give Bill S-201 final approval in the House of Commons, Justice Minister Jody Wilson-Raybould announced that she wants to refer the legislation to the country's top court. 

"We are contemplating and wanting to move forward with putting a reference forward on the constitutionality of the genetic non-discrimination act," she said Thursday. 

"We, as the prime minister articulated yesterday, have serious concerns about the constitutionality of one of the parts of the bill ... That concern remains." 

The bill is aimed at ensuring that Canadians can get genetic tests to help identify health risks and take preventive measures, without fear that they'll be penalized when it comes to getting a job or life and health insurance. 

Wilson-Raybould said the government will wait until the bill clears a final hurdle in the Senate before launching the reference — a process that could leave the legislation in limbo for two or more years. 

Bill S-201, a private member's bill initiated by now-retired Sen. James Cowan, has already been approved unanimously by the upper chamber.  However, the version passed Wednesday by the Commons contained a minor technical amendment so the Senate must now vote on whether to accept the amended bill — a formality that is expected later this month. 

Liberal MP Rob Oliphant, who sponsored the bill in the Commons, said he's disappointed that a court reference "may delay both protection of Canadians' human rights and their access to the best medical care possible." 

"I call on the government to enact this bill as soon as possible while awaiting the Supreme Court decision.  Lives are at stake." 

The bill would make it illegal to require a person to undergo genetic testing, or disclose the results of previous tests, as a condition of signing or continuing an insurance policy or any other contract or agreement. 

It would also prohibit anyone from sharing genetic test results without written consent, although there are exceptions for physicians and researchers.  A breach of the law would result in a fine of up to $1 million or five years in prison. 

Wilson-Raybould maintains the bill intrudes on provincial jurisdiction to regulate the insurance industry, which has fiercely opposed the bill.  Only three provinces — Quebec, British Columbia and Manitoba — have expressed reservations about the bill, despite a letter from the federal justice minister last week inviting other provinces and territories to register their objections. 

"The government is obviously looking more to the interests of the insurance lobby than they are to ordinary Canadians," said NDP House Leader Murray Rankin. 

He noted that Wilson-Raybould adamantly refused to seek the Supreme Court's advice last spring on her bill legalizing medical assistance in dying only for those near death, despite an overwhelming consensus among constitutional experts that it was too restrictive to comply with the top court's landmark ruling on the issue and would be struck down as unconstitutional. 

Yet she now wants a reference on genetic discrimination, despite expert testimony that the bill is constitutional. 

"The inconsistency is glaring," Rankin said. 

Wilson-Raybould had proposed an amendment that would have effectively gutted the bill, stripping it of everything but the power to make genetic characteristics a prohibited ground of discrimination under the Canadian Human Rights Act.  That amendment was defeated in the Commons on Wednesday night by a vote of 218-59. 

Just hours before the vote, Trudeau publicly called the bill unconstitutional and urged MPs to vote against it.  Both Trudeau and Wilson-Raybould later spoke at length during a closed-door Liberal caucus meeting about their concerns, according to insiders. 

But more than 100 backbenchers proceeded to support the bill anyway, helping it pass by an overwhelming vote of 222-60. 

Joan Bryden, The Canadian Press