Canadian Lawyer

September 2020

The most widely read magazine for Canadian lawyers

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www.canadianlawyermag.com 11 Legislation prohibiting genetic discrimination is constitutional: SCC Q&A Years in law practice: more than 40 Career highlight: My appearance in Carter v. Canada (Attorney General), 2015 SCC 5 — the case that established a right to medical assistance in dying. There was just so much at stake for so many Canadians. But the first Little Sisters case (Little Sisters Book and Art Emporium v. Canada (Justice), 2000 SCC 69) remains one of my favourites even though it was decided 20 years ago. It established the importance of sexual expression as a socializing force for the LGBTQ community. Joseph J. Arvay partner ARVAY FINLAY LLP On July 10, the Supreme Court of Canada ruled that federal legislation prohibiting genetic discrimination is constitutional. In Reference re Genetic Non Discrimination Act, the court found that Parliament has the criminal law power to enact the act, which it passed in 2017. The decision was lauded by those concerned that genetic test results could be used by employers and insurers as grounds for discrimination. Joseph J. Arvay, a partner at Arvay Finlay LLP in Vancouver, was counsel for the appellant, the Canadian Coalition for Genetic Fairness. Arvay has been counsel on several landmark cases in the Supreme Court of Canada and spoke to Canadian Lawyer about this and other decisions. What was the significance of the Supreme Court's decision in this case? The decision has profound implications beyond its holding that the Genetic Non-Discrimination Act is constitutionally valid. It may be fairly described as affirming an expansive view of Parliament's jurisdiction to enact criminal law and ensures that with whatever novel, yet harmful, conduct that might arise in the next millennium Parliament will have the powers to prohibit and punish that conduct where it poses a risk of harm not only to public health but to autonomy, privacy and equality. What was particularly challenging in this case? One of the difficulties in this case facing my clients — a coalition of non-profit societies committed to genetic fairness who with other interveners sought to support this law — was not only that the provincial attorneys general claimed that the act was unconstitutional but so did the attorney general of Canada whose government enacted the law. That was unprecedented in my experience. As a result, it felt a bit like David versus Goliath. And it was reflected in the result. It was a real squeaker: 5-4. What stands out to you of the other cases you've argued before the Supreme Court and why? Every case I have argued is of course different in its own way. But what is common is the very high standards of advocacy expected of counsel and the very tough questions that are asked of counsel by judges who are very well prepared. It is a nerve-wracking experience, no matter how often I have appeared. Competition Bureau invites feedback on draft guidelines The Competition Bureau has invited interested parties to comment on proposed revised guidelines on competitor collaborations by Sept. 28. The revisions aim to improve transparency in collaborations between competitors, to offer more guidance on evidence the Bureau will consider when assessing whether businesses are competitors and circumstances to trigger an investigation of competitor agreements for the purchase of products under the criminal cartel provisions of the Competition Act. Final amendments made to syndicated mortgage regime The Canadian Securities Administrators has released the final amendments to its syndicated mortgage regime, effective March 1, 2021. The changes are intended to help investors make informed decisions and assist registrants who distribute such products in complying with their obligations and harmonize the relevant regulatory framework by eliminating the prospectus and registration exemptions in place in certain jurisdictions. COVID Alert app complies with privacy principles The Privacy Commissioner of Canada and the Information and Privacy Commissioner of Ontario have given their support to the use of the new COVID Alert exposure notification application. The federal government spearheaded the app's development. Both privacy commissioners conducted a review of the app, offered their recommendations and concluded privacy principles of consent and trust, legal authority, necessity and proportionality had all been met.

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