On July 10, 2020, the Supreme Court of Canada (SCC), in Reference re Genetic Non-Discrimination Act (2020 SCC 17), upheld the Genetic Non-Discrimination Act (the Genetic NDA) as constitutional, acknowledging an individual’s right to privacy over genetic information.

In May 2017, the Genetic NDA, a federal law, received royal assent. After receiving royal assent, the provincial government of Quebec referred the constitutionality of the Genetic NDA to the Quebec Court of Appeal on the grounds that the legislation was unconstitutional, since the regulation of genetic information by insurance companies and employers falls under provincial jurisdiction. The Quebec Court of Appeal held that the Genetic NDA was unconstitutional because it fell outside Parliament’s authority to make criminal law. The Canadian Coalition for Genetic Fairness appealed the decision to the SCC.

In a 5:4 decision, the SCC held that the Genetic NDA was constitutional. In the decision, Justice Karakatsanis held that the rules in the Genetic NDA were about combating genetic discrimination and protecting health and that Parliament had the power to make these rules under its authority to make criminal law. Justice Moldaver, concurring that the legislation was constitutional but for differing reasons, held that the rules were about protecting health by making sure individuals had control over their genetic information, and that Parliament had the power to make these rules because it fell under criminal law.

In the dissent, Justice Kasirer held that the Genetic NDA was not constitutional because the rules affected only contracts and prevented misuse of individual’s genetic tests in order to promote their health.  In Justice Kasirer’s opinion, since the power to make laws about contracts falls under provincial responsibility, Parliament did not have the power to make these rules.

Despite the differing reasoning, the SCC’s majority recognized that an individual’s right to autonomy and privacy over genetic information is paramount and upheld the legislation protecting those rights.

Summary By: Hashim Ghazi


20 07 29

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