Recently, the Canadian Supreme Court (‘SC’) upheld the Genetic Non-Discrimination Act (‘GINA’) (passed on 4th May 2017), as part of a reference process decision. The SC’s decision comes out after the Quebec Court of Appeal passed an order proclaiming GINA to be unconstitutional. In Canadian jurisprudence, raising a reference process permits lawmakers to determine the constitutional validity of a law, as questions of its content and application are answered through the judicial process. The constitutional, jurisdictional scope and criminality in respect to the federal parliament passing the law were settled in the decision made by the SC. This clears the path for the implementation of GINA that has enormous privacy implications for its stakeholders, which shall be covered in this article.
To spell it out in basic terms, the provisions of GINA prevent employers (companies, entities, individuals, etc.) from requiring their employees to undergo ‘genetic testing’ or disclose its results. Further, it prohibits insurance companies from requiring customers to undergo testing in order to receive their cover and returns. When the bill was initially raised in the parliament, for obvious reasons, there was severe opposition from insurance corporations around the Canadian territory.
The SC placed reliance on Section 97(27) of the Canadian Constitution, which is “protecting fundamental moral precepts or social values”, in order to establish the jurisdictional power of the Government. This was done in order to mitigate the risks of discrimination in lieu of genetic testing.
In terms of the privacy benefits that GINA entails, the moot point is the establishment of an equal playing field for the citizens against the fear of genetic discrimination by entities through genetic testing. In the past, there have been studies that highlight the practice of genetic discrimination by insurance companies. This certifies the free flow of medical research and ensures every citizen is an equal beneficiary to the services that emanate from the State and private corporations in terms of genetic testing.
The various provisions of GINA ensure that the scope is wide and the implications are far-reaching. Some of them have been listed out as under:
- Sections 1 to 4 bar the use or requirement of genetic testing (which, according to the GINA means a test that analyses DNA, RNA or chromosomes for purposes such as the prediction of disease, vertical transmission risks, monitoring, diagnosis or prognosis) as a condition for anyone to (a) provide goods or services, or (b) entering into or continuing a contract or agreement, or (c) to discriminate against a person based on a refusal to provide the results of a genetic test.
- Section 5 covers the idea of obtaining ‘consent’ before the collection, use, or disclosing of any genetic information from any individual whatsoever.
- However, Section 6 does provide for a few exceptions such as health care practitioners (a physician, pharmacists, or any individual providing a health service and any medical, scientific, or pharmaceutical researcher of which the individual is a participant).
- Section 7 lists out the offenses which include fines up to CAD 1 million (app. USD 7,33,765) on indictment or CAD 300,000 (app. USD 2,20,129) on summary conviction, or imprisonment of up to 5 (five) years on indictment or 1 (one) year on summary conviction. GINA has also made corresponding amendments to the Canadian Human Rights Act by adding genetic characteristics as a prohibited ground for discrimination and Canadian Labour Code which introduces the provision that an employee is not required to undergo testing by an employer, and an employer cannot take any action if there is a refusal of taking a test or disclosing its results.
GINA is a welcomed move as it satisfies the consumers that their genetic testing details are safe and shall not be used against them. As GINA covers all kinds of contracts (as mentioned above) and entities under its ambit and has severe criminal law consequences, there is an increased sense of security. The scope of the exceptions as well, is extremely limited in nature, with written consent and participation of the individual being a mandatory aspect to be adhered to. Now that the GINA has been held to be constitutional in its entirety, it shall be interesting to see in the coming times how the consent-taking, exceptions, and liabilities aspects play out in a practical scenario in Canada.
By- Mustafa Rajkotwala
winvestment.wordpress.com 