ONTARIO COURT OF JUSTICE
Re McAllister: an application pursuant to s. 507.1 of the Criminal Code
Before Justice of the Peace Kevin J.A. Hunter
Heard on October 31, 2022
Reasons for Decision released on November 9, 2022
C. COLE Agent for the Informant
M. DYKSTRA.......................................................... Public Prosecution Service of Canada
JUSTICE OF THE PEACE HUNTER:
- The Informant, Kylie McAllister, appeared before me at a process hearing, or pre-enquête, on October 31, 2022, seeking to have process issued for a private prosecution. The Informant laid an information under s. 504 of the Criminal Code alleging that her employer required her to take a genetic test as a condition of her continued employment, contrary to s. 3 (1)(b) of the Genetic Non-Discrimination Act (S.C. 2017, c. 3) (the Act). The charging section reads:
3 (1) It is prohibited for any person to require an individual to undergo a genetic test as a condition of
(a) providing goods or services to that individual;
(b) entering into or continuing a contract or agreement with that individual; or
(c) offering or continuing specific terms or conditions in a contract or agreement with that individual.
- Once an information is laid by a private informant, the matter is referred for a pre-enquête.1 At this hearing, a justice considers whether process should issue, by way of summons or warrant, to compel the attendance of the person named in the information to answer to the charge.2 The informant bears the onus of establishing a prima facie case to satisfy the court that process should issue. This low threshold requires the presentation of some evidence on all essential elements of each offence listed on the information. If the Informant meets this burden, the justice shall issue process and the criminal process commences.3
The Evidence
- I am thankful to the Informant for filing materials in advance of the hearing. Marked as an exhibit, these materials included details about the Informant’s employment history. At the outset of the hearing, I advised the Informant that based on my review of the materials, I was prepared to accept the following:
a. The Informant was employed by a hospital.4
b. On September 1, 2021, the hospital took measures to protect its staff and patients during the Covid-19 pandemic. One such measure was issuing a directive that required all staff and physicians who were unvaccinated, partially vaccinated, medically exempt from vaccination, or who refused to disclose their vaccination status to complete regularly scheduled antigen rapid testing.5
c. On September 16, 2021, the Informant was advised by her employer that she was not in compliance with the directive. The Informant had not yet disclosed her vaccination status or complied with the antigen rapid testing requirement. The Informant was advised that failure to comply with the hospital’s directive would result in discipline, including the potential for termination.6
d. On October 12, 2021, after being issued both verbal and written warnings,7 and still running afoul of the hospital’s directive, the Informant was advised of her termination.8
The informant wished to provide further evidence under oath. Because her filed materials chronicled her employment history, I invited the Informant to focus her testimony on how an antigen rapid test qualifies as a genetic test for purposes of the Act.
During her testimony, the Informant produced two documents. Recognizing that the contents of these documents were almost certainly hearsay, I nonetheless permitted the Informant to proceed for reasons I will explain later.
First, the Informant produced an Antigen Rapid Test Product Insert (product insert). This is a document that one might expect to find, folded several times over, inside a box of antigen rapid tests. The product insert includes a brief explanation of what the antigen rapid test does, how it works, and instructions on how to perform the test. The Informant directed the court to specific text within the product insert under the heading “Intended Use.” According to the first sentence, the antigen rapid test “is an in vitro immunochromatographic assay for the direct and qualitative detection (my emphasis) of SARS-CoV-2 viral nucleoprotein antigens from the nasal and nasopharyngeal secretions from individuals suspected of COVID-19...”9
The second document the Informant produced was a printout of the Wikipedia entry for the term “nucleoprotein.”10 According to this document, nucleoproteins are proteins coupled with nucleic acids (either DNA or RNA). It was the Informant’s position that since an antigen rapid test analyzes viral nucleoprotein antigens, which are coupled with DNA or RNA, it qualifies as a genetic test.
The Issue
- The issue is whether the informant has presented evidence that an antigen rapid test is a genetic test for the purposes of the Act.
The Law
- “Genetic test” is a defined term in s. 2 of the Act. It is a “test that analyzes DNA, RNA or chromosomes for purposes such as the prediction of disease or vertical transmission risks, or monitoring, diagnosis or prognosis.”
Analysis
Before analyzing the evidence, I recognize that if this hearing was a trial, the contents of both the product insert and the Wikipedia entry would be considered inadmissible hearsay. This, however, is not a trial. It is an allegation-based hearing to determine whether process should issue. Justices routinely accept necessary and reliable hearsay allegations from peace officers during the intake procedure when considering whether to issue a process for public prosecutions.11 In my view, allegations made in a private prosecution should be treated no differently.
The product insert twice describes an antigen rapid test as one which detects the presence of viral nucleoprotein antigens.12 To be considered a genetic test under s. 2 of the Act, an antigen rapid test would have to analyze DNA or RNA. The word analyze suggests a detailed, methodical, and systematic examination. Merely detecting the presence of something falls well short of qualifying as an analysis. In my view, an antigen rapid test does not fall with the definition of a genetic test because it is simply a detection device, not one which conducts an analysis.
Given my finding that an antigen rapid test does not meet the definition of a genetic test, it is unnecessary to consider the Informant’s Wikipedia document, along with its host of reliability concerns. The relationship between nucleoprotein antigens and DNA/RNA becomes moot because the antigens are only being detected, not analyzed.
Conclusion
- The Informant has not presented any evidence that the antigen rapid test her employer required her to take was a genetic test for purposes of the Act. Thus, the Informant has not established a prima facie case and I decline to issue process.
Signed: Justice of the Peace Kevin J.A. Hunter
Footnotes
- Criminal Code, s. 507.1(1)
- Ibid, s. 507.1(2)
- Ibid.
- Exhibit 1, tab A
- Ibid, tab B
- Ibid, tab C
- Ibid, tabs F-H
- Ibid, tab I
- Ibid, tab D, under the heading Intended Use
- Ibid, tab E
- Criminal Code, s. 507
- Ibid, under the headings “Intended Use” and “Principle”