The Liberal government is looking to the premiers for help in shoring up its position against legislation that would prohibit health and life insurance companies from forcing their clients to disclose the results of genetic testing.
Justice Minister Jody Wilson-Raybould wrote to Yukon Premier Sandy Silver, current chair of the group known as the Council of the Federation, about whether they think Bill S-201, aimed at prohibiting and preventing genetic discrimination, strays far enough into provincial jurisdiction to be considered unconstitutional.
“Given the important constitutional issues in play, we call on the Council of the Federation to communicate its views on the constitutionality of Bill S-201’s proposal to regulate all contracts, agreements, and goods and services to prohibit genetic discrimination,” Wilson-Raybould writes in the letter, described by a government official as an effort to seek clarity.
The insurance industry has come out strongly against that aspect of the proposed legislation, which would make it illegal for anyone 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 good, service, contract or agreement.
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It would also prohibit anyone from sharing the results of someone’s genetic testing without their written consent, although there are exceptions for physicians and researchers.
Breaking the law could mean a fine of up to $1 million, or five years behind bars.
The unusual step of seeking formal input from the provinces and territories comes after the Liberal government brought forward amendments last month to remove everything from the bill except adding genetic characteristics as prohibited grounds of discrimination under the Canadian Human Rights Act, arguing that MPs had a duty to respect the constitutional division of powers.
That move surprised not only the Conservatives and the NDP - who are likely to vote in favour of the bill - but also Liberal MP Rob Oliphant, who has shepherded the Senate bill through the House of Commons and said he also has support from many of his Liberal caucus colleagues.
That could end up pitting the Liberal cabinet - through Wilson-Raybould, who has made her concerns about constitutionality clear - against many on the backbench, so bringing in the provinces would be one way to bolster their argument.
“I can only view that as a letter that is seeking further letters to corroborate the position that perhaps she takes,” said Liberal MP Anthony Housefather, who is chair of the House justice committee and supports the bill without the amendments.
In her letter, Wilson-Raybould said she received letters of dissent from Quebec, Manitoba and B.C., but suggested there are still other opponents.
“In direct communications with me and my office, other provinces have raised doubts about this legislation but have declined to take a public position,” she wrote.
She said she wants the premiers to share their views by the time debate on the bill resumes in the House of Commons next week. A final vote on the bill could come as early as March 8.
But as Oliphant pointed out, all the provinces and territories were already asked to share their views when the bill was in the Senate, and the responses were either positive or neutral, or opted against making formal submissions.
In the letter, Wilson-Raybould expressed support for including genetic discrimination in the Canadian Human Rights Act and also urged the premiers to tackle the issue within their own jurisdictions.
“I am confident that we can add the prohibition of genetic discrimination to that proud human rights heritage,” she said.
Oliphant said he is not against that idea, but thinks the provinces are waiting for federal leadership.
“It is very difficult for the provinces to move on in this area, given the stakeholders under the direct jurisdiction who are fighting it.”
The Canadian Press
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