Canada’s Supreme Court Addresses Genetic Data Privacy in Split Decision

Written by: Charles R. Langhorne IV, Esq. and Brock Wolf

Last month, Canada’s Supreme Court upheld the constitutionality of provisions of its Genetic Non-discrimination Act (“GNDA”) with a 5-4 decision.

In 2017, Canada’s federal government enacted the GNDA, establishing rules for businesses regarding genetic testing for diseases. Specifically, the GNDA prohibits requiring an individual to undergo genetic testing for diseases, or to share the results of a genetic test, in order to enter a contract or to buy something. In respect to privacy, the GNDA also makes it a crime to collect, use, or share the results of genetic tests without an individual’s permission. A violation of the GNDA can result in fines of up to $1 million, imprisonment of up to five years, or both.

In Canada, Parliament has the authority to create criminal law, whereas Provincial legislatures reserve the power to create laws involving property and civil rights. If a body of government creates law beyond its authority, it can be challenged as unconstitutional.

The Government of Quebec challenged the constitutionality of the law, asserting that the GNDA has the effect of a civil law by regulating insurance and employment contracts and promoting citizen health. The challenge was supported by the Attorneys General of Quebec and Canada. The Court of Appeal of Quebec agreed, ruling the GNDA provisions unconstitutional because they are not related to criminal law.

However, on July 10, the Supreme Court of Canada ruled the GNDA constitutional. According to the majority opinion, the rules are prohibitive in nature and created criminal penalties for violators. The four dissenting justices, like the Court of Appeal of Quebec, viewed the GNDA provisions as noncriminal and aimed at regulating insurance and employment contracts.

As a result of this decision, any business that uses or demands genetic testing, or the results of genetic testing, as a condition of employment will be subject to the GNDA’s criminal sanctions. Additionally, any business that discriminates based on an individual’s refusal to provide consent will be in violation of the GNDA. Federally-regulated Canadian businesses that use genetic data should carefully evaluate their usage of the information to protect against potential criminal liability.

Read the decision here.