Genetic Discrimination and Liberal Backbenchers’ Opposition

A recent vote in Canada's House of Commons criminalized the practise of genetic discrimination. http://bit.ly/1U9KavY

A recent vote in Canada’s House of Commons criminalized the practise of genetic discrimination. http://bit.ly/1U9KavY

Last Wednesday, the House of Commons passed Liberal MP Rob Oliphant’s Genetic Non-Discrimination Act, also known as Bill S-201, thereby outlawing the practise of genetic discrimination in Canada. In other words, individuals may not be discriminated against due to genetic mutations that do or may cause an inherited disorder. This legislation has a profound impact on the insurance industry, who heavily lobbied against the bill, and marks a greater shift that can be observed in the relationship between Members of Parliament and their parties.

Recently retired Senator Jim Cowan put forth the private member’s bill in an effort to protect Canadians in a variety of ways. Firstly, the bill reduces an individual’s fears of penalization by insurers and employers if they were to discover a health issue after undergoing genetic testing. The legislation stipulates that individuals may refuse to disclose information that was obtained during such tests. This protection is further entrenched by changes to the Charter of Human Rights Act, which protects genetic characteristics against discrimination in the same way sexual orientation and race are protected, for those working in or with federally regulated agencies. As a result, barriers, such as fear, that hinder an individual’s willingness to undergo life-saving genetic testing are greatly alleviated and the chances of identifying and treating health issues are increased. Moreover, under Bill-201 current practises by insurers will be greatly altered. Mainly, insurers will no longer be able to utilize genetic assessments to alter rates or to deny individuals of coverage. While the benefits of this legislation for Canadians is fairly clear, the bill did not have the support of the government.

While the Liberal Party expressed their support for measures that would end genetic discrimination during the last election period, the Trudeau administration expressed their opposition to the bill as being a matter of the legislation’s constitutional validity. This position was also adopted by Justice Minister Jody Wilson-Raybould, who asserted her belief that the bill steps into the jurisdiction of the provinces. In a news conference, Justin Trudeau stated that the government believed a portion of the bill was unconstitutional. He went on to state that “the government position is to vote against that particular … element in the bill.” In February, the government supported amendments to the legislation that were deemed to gut the bill by some parliamentarians and opposition groups.

Jim Cowan suggested that the government’s hesitance to support the legislation may be a result of lobbying efforts by the insurance industry. He stated that the industry has been very active in opposing the legislation and some observers may attribute cabinet’s reluctance to support the bill as being rooted in such lobbying efforts, although he stopped short of actually making this connection himself. The insurance industry has openly defended their position on the matter. Frank Swedlove, CEO of the Canadian Life and Health Insurance Association, cited hikes in rates as an adverse effect of the bill, which would also make it more difficult for individuals to get coverage. The Canadian Institute of Actuaries has estimated an insurance cost increase of 30 percent and 50 percent for men and women, respectively.

Ultimately, the legislation passed with a vote of 222-60 with the help of Liberal backbenchers who voted against their party’s position. As a result, Canada became the last G7 state to adopt such legislation. The passing of the bill can also be attributed to the free vote that was set by the Trudeau administration, meaning Liberal Members of Parliament did not need to vote inline with the party’s position. The parliamentarians whose position altered from the government did not conclude the same results regarding the constitutional validity of the legislation. Instead, they sided with information from a committee that assessed the testimonies of medical and legal experts. This is not the first time that MPs voted against the government’s position to swing the vote during this administration. Previously, Bill C-243 and Bill C-240 were passed while cabinet opposed the legislation. However, the passing of the most recent bill differs because it actually institutes the legislation, rather than sending the bills to committees to be further assessed. Generally, this seems to be a shift from the previous government’s stance on free votes and it may indicate an opening in the role of MPs in representing their constituents as opposed to the party’s position.

In the aftermath of the bill passing, Justice Minister Jody Wilson-Raybould indicated her desire to refer the legislation to the Supreme Court of Canada. This action was criticized by the NDP Justice critic, Alistair MacGregor, as being a ploy to defend the interests of the insurance industry. In addition, some have observed the odd nature of the government’s appeal to the Supreme Court as it was their own party members who made the bill’s success possible. However, Liberal party members have not spoken out against the government’s actions. Liberal backbencher Rob Oliphant stated in an interview that “there are differences in our Liberal caucus, but not a divide”. Anthony Housefather, Liberal chair of the justice committee, stated it was known that the bill would be challenged in court and having the federal government take it directly to the Supreme Court meant that a decision could be rendered quicker, as opposed to going through lower courts first.