THE STANDING SENATE COMMITTEE ON SOCIAL AFFAIRS, SCIENCE AND TECHNOLOGY
EVIDENCE
OTTAWA, Thursday, May 4, 2023
The Standing Senate Committee on Social Affairs, Science and Technology met with videoconference this day at 11:31 a.m. [ET] to examine Bill C-22, An Act to reduce poverty and to support the financial security of persons with disabilities by establishing the Canada disability benefit and making a consequential amendment to the Income Tax Act.
Senator Ratna Omidvar (Chair) in the chair.
[English]
The Chair: Honourable senators, I wish to begin by welcoming all members of the committee, our witnesses and members of the public watching our proceedings. My name is Ratna Omidvar, I am a senator from Ontario and the chair of this committee.
Colleagues, I wish to pick up the pace of discussions today. In reviewing the transcript, while we have fulsome debate, I am a little anxious about limiting our interventions to new points and new information as opposed to a circular conversation. I am not at the point where I wish to limit debate on the amendments. If we wish to do that, we must do so collectively. I urge you to use the tools at your disposal, including calling for the question or asking questions; that is all possible. In short, I will ask for your forgiveness as opposed to your permission.
In line with keeping with my approach to facilitating our conversations, I will not be asking the officials for a comment on every amendment. Instead, if any senator has a question, it can be posed and therefore must be answered.
Senator Moodie: Madam Chair, I want to congratulate you on your leadership of this committee during this study.
I want to raise something for your consideration. I am doing this because our committee has been a collaborative place for the past many years, and we have been able to speak openly and clearly about the business of this committee and how we approach it. I do apologize as I didn’t get to discuss this with you, colleagues, ahead of time.
We are right now starting a historic piece of legislation. There is no doubt of its importance, and you know, colleagues, about my own professional experience, why I believe this bill is important and that the government’s intention are very laudable. That said, I had a source of discomfort yesterday. I’ll seek your guidance, Madam Chair, on this. I trust you with this matter.
We are extremely privileged to have world-class public servants. Whether through their expertise or through their hard work, we benefit every day as Canadians and here as parliamentarians from their service. I am very glad that you are with us. That said, I did feel some discomfort at times. Maybe there is some nuance here, but I want to make sure we can benefit to the maximum of the officials’ testimony today. I am here trying to be constructive. My understanding has been and has always been that public servants are to be non-partisan professionals who, when coming before Parliament, should limit their comments to stating facts, even when stating facts about the government’s intent, but avoiding crossing the line into sharing opinions, arguing with parliamentarians or advising what the committee should or should not do.
Tone matters. I felt we got too close to the line for my comfort during our meeting yesterday. I want to reinforce that I fully appreciate having all public servants here and value your contributions. But I wonder, chair, for the benefit of all, if you could clarify some guidelines for our witnesses or for us, or just let me know if my discomfort is completely unwarranted and that the testimony yesterday was within the norm. Thank you.
The Chair: I agree with you that we have a history in this committee of being collaborative and collegial. I will do my utmost as chair, with your help, to continue that narrative. We are not an oppositional committee. We seek consensus and we have a proven track record of many years of arriving at that. We have had hearings on extremely contentious bills — cannabis, assisted dying — and yet we have managed to do our work under the leadership of Senator Petitclerc, Senator Eggleton and Senator Ogilvie in my time.
In terms of what officials may or may not say, I think it is up to the questions you ask. You are right, we ask the public officials for facts, but sometimes I have heard senators asking for opinion. It is up to the individual question. I will not be asking them for general comments. Instead, I will be asking you to raise questions — including me. I could raise a question to them. Does that satisfy you, Senator Moodie?
Senator Moodie: Madam Chair, tone matters, and it is my hope that we will not get into exchanges between ourselves and our officials. We are supported by them. They are not engaged in our discussion.
Senator Gold: Thank you, Senator Moodie, for raising this.
From my long experience before I assumed this role, which involves sitting on many committees, in my respectful opinion, the interactions with the public officials yesterday were both helpful and totally appropriate. Madam Chair, I think you are correct that when the issue is what the meaning is or how this clause is to be interpreted, a question directed at the officials, which is an appropriate question, calls for an interpretation. I think that’s totally appropriate, respectfully.
It may be that my ears are not sufficiently tuned or that the hat I wear muffles the tone — if you will allow me that attempt at metaphor — but I didn’t feel that anything strayed beyond the norm and the appropriate. But I thank you for raising that because I thought it was totally conventional, at least in my experience here.
The Chair: I wish to limit this particular conversation, but let’s see where Senator Dasko goes. If there are others, I will have to limit it to another three minutes.
Senator Dasko: I want to thank Senator Moodie for her comments this morning. I have to concur with her observations and thoughts. I haven’t been here for 10 or 20 years — I have been here for 5 years — but I have to say that yesterday’s committee meeting while doing clause by clause was different than any other meeting I have had doing clause by clause with officials. Of course, the officials bring great expertise and knowledge, but I have to say I felt this was a different kind of experience, and I’m very pleased she has raised this. Thank you.
The Chair: Thank you, colleagues. We will go back to the amendments package and pick up on clause 9. Quickly, a recap: Senator Lankin’s motion, C-22-9-3-27, was defeated. Senator McPhedran’s amendment, C-22-9-3-27, was not moved. We are now on to Senator Lankin’s amendment, C-22-9-3-29.
Senator Dasko: Senators Lankin and McPhedran have identical motions. I will withdraw Senator Lankin’s, and Senator McPhedran will speak to hers.
Senator McPhedran: I’m focusing here — in addition to the evidence that was given to us primarily by two experts, Steven Muller and Professor Hart Schwartz — and to your point about adding more information — newer commentary — for the committee, let me focus briefly on what the amendment is.
It is replacing line 29. If we go to line 29 of the bill, we have it beginning with, in clause 9, “A benefit under this Act.” I’m not suggesting we touch (a) or (b). Those are important protections. And (c) then reads “cannot be retained by way of deduction, set‑off or compensation under any Act of Parliament other than this Act.” That is an important statement about any — should I pause?
The Chair: You’re good. I’m the one that is not. We have lots of information.
Senator McPhedran: Thanks very much.
Then this amendment is to add (c)(i), which is an additional protection — “cannot be recovered or retained, in whole or in part, under the terms of any contract, insurance plan or similar instrument.”
I want to thank Senator Seidman for raising this very question when the minister was before this committee. I note the minister indicated that she felt comfortable with the assumption that the insurance industry would characterize this as a “social benefit” — to use her words — and that would somehow create a protection.
If I may, I want to summarize something with some additional points I have received from the two experts we heard from.
The disability supplement to Old Age Security is being set-off now — this is the reality — by private insurance companies from the amount that they would otherwise pay out for long-term disability. That is a clawback. Private insurance companies — there is a practice that I am told by Professor Schwartz — will set-off the amount that they believe a person could get by way of the disability supplement, whether or not that person has applied. If they have applied and refused, then the insurance company will expect them to appeal that refusal and set-off this amount.
So this amendment — with all due respect to the minister’s comfort with what the insurance companies have told her — insulates the Canada disability benefit from that kind of set-off or clawback, which is already going on. There is every reason to believe the same treatment that the private insurance companies already exhibit to what would also be characterized as a social benefit would apply to this new proposed disability benefit.
Indeed, the fact that these private insurance contracts and plans state clearly that they can set-off any government benefit indicates that it does not matter whether the Canada disability benefit is characterized as a social benefit or an income benefit. It is any benefit that can be clawed back under the terms of those contracts.
Again, with all due respect, this is not something that regulations can handle. This is something that we need to set out clearly in the statute itself. With all due respect, we have evidence that insurance companies are already doing this, and this is not something we should allow to continue to make those people living with disabilities and who qualify for the disability benefit to then lose it in this way.
That is why Senator Lankin and I are asking this committee to consider this amendment carefully, please.
Senator Osler: I will allow my question to be directed to either the sponsor of the bill, the Government Representative in the Senate or the government officials.
This committee has been made aware of a potential unintended consequence if clause 9 of Bill C-22 is not amended. We have heard that:
Without a prohibition on deduction or set-off by a private insurance provider, the targeted beneficiaries of the Canada disability benefit will receive no supplemental benefit at all.
The committee has further heard that:
Even if the Canada disability benefit were to be characterized by Regulation as a “social benefit” and not an income “benefit” the language of insurance providers could capture the benefit.
Minister Qualtrough sent a letter to the chair of this committee on May 2 stating that:
. . . the Government will build on the previous engagement with the private disability insurance sector to ensure the [Canada disability benefit] is understood as a social benefit . . . .
My question, Madam Chair, is this: What assurances can this committee have that, if Bill C-22 is passed without amendments, insurance providers will not directly or indirectly apply the Canada disability benefit to reduce the amount the insurer would otherwise pay out for long-term disability?
The Chair: Senator Cotter, if you could answer —
Senator Cotter: I saw Senator Pate’s hand up, but I didn’t know what that meant.
The Chair: The question was asked of you, and I’m going to take your answer to it. One answer — either you, Senator Gold or the government officials for this first round. Then we’ll go to Senator Pate.
Senator Cotter: It’s a very good question, and it’s a very good point that Senator McPhedran raises. I expect heartfelt concern among all of us.
I think the answer is that, legislatively, nothing can be done by us.
Let me begin by making a large observation about our constitutional role as senators, one of which is to not ask legislation that is or is likely to be unconstitutional and another is to be attentive to the interests of our regions and provinces. This is a category where they both overlap; that is that this legislation, in my view — and I’ll expand upon this in a moment if I have the opportunity — is liable to be unconstitutional, and I’ll say more about that in a moment.
The way in which it’s unconstitutional is that it tumbles into the areas of provincial jurisdiction over property and civil rights. We normally think of the question of not passing unconstitutional laws on the basis that they might violate the Charter, but prior to 1982, the question was whether we were trenching upon, in legal language, provincial jurisdiction.
One of the reasons I think Senator McPhedran’s observation about other benefits being vulnerable to being clawed back is because, on this topic, the Government of Canada doesn’t have the authority to move into this area by regulating private contracts, which is basically what this amendment would do.
When I understood that Senator Lankin, in particular, was going to introduce this amendment, I did my own private consultations, informally, with esteemed constitutional lawyers who shared with me their view — which is, quite frankly, my own — that this is a problematic, maybe a deeply problematic initiative. We heard some evidence that in the world of cooperative federalism, the spending power of the Government of Canada can do this sort of thing. I think the answer to that is probably not, and as a result, you see why this government, knowing this problem, feels that it can’t directly intervene with legislation and a provision like this.
Most initiatives by the Government of Canada can be identified under some kind of category of power in section 91 of the Constitution Act — banking, foreign affairs and the like. This rides, as the witnesses said, on the spending power of the federal government. You can read the Constitution from end to end and you will never find a reference to the spending power. Indeed, some of the provinces in Canada, for various reasons, reject the concept of the spending power as a legitimate authority of the Government of Canada. It’s a fragile power. That’s my first point.
If this legislation is capable of being constitutional, which I think it is, the tentacles that might reach out into the provincial jurisdiction have to be gentle. They need to be ancillary and insignificant.
This one reaches into the heart of provincial authority — property and civil rights — in a very aggressive way. One of the problems is that we run the risk of inviting constitutional litigation. Indeed, almost for sure, companies that think they should continue to be able to claw this back will launch constitutional challenges to this provision, and provinces will be put in the awkward position of having to either support the benefit or defend their constitutional territory. Unfortunately, I think some provinces will make the latter choice as they are entitled to do. What we set up with this amendment is a constitutional challenge.
Second, on an intergovernmental basis, the minister and this bill have been careful not to trench upon provincial jurisdiction. They don’t make any references to claw backs by provincial governments. Partly that’s to facilitate the kind of federal-provincial-territorial comity in the negotiations that will come. This is kind of a slap in the face to provincial jurisdiction, and significantly complicates the ability of this minister or any other to work out a constructive arrangement.
Senator Pate: The other constitutional obligation we have is to uphold the Charter. Section 15 of the Charter guarantees disability rights. Human rights lawyers have been very clear. I went through the testimony, I couldn’t see any evidence about this, but I certainly know from being directly involved in cases the number of people who had clawbacks when they received the Canada Emergency Response Benefit, or CERB.
The fact is that it is the least privileged and the most dispossessed who will be most negatively impacted by this. You heard from one of the lawyers who — just the day before he appeared — had won an 11-year battle to get a disability right protected. In fact, we have an obligation. There are competing issues in terms of constitutional responsibilities that we as senators have, and one of them is to represent the interests of those who otherwise are not represented by the elected body and by these provisions.
I would strongly urge that we focus on this as actually attempting to uphold section 15. Will there be constitutional challenges? Absolutely. But now, we put the responsibility on the least privileged, the people who have to try to figure out how to get a lawyer, how to get someone to mount this case, how to bring the case and then challenge and get through the courts, and maybe 11 years after this comes into effect win a case against a province or territory. That’s what this amendment is about. It’s providing just a little hook under which people can bring this challenge.
I think we can’t, as senators, ignore that. I completely agree that there is the federal-provincial issue, but they are deep pockets. The fact that this provision will privilege slightly, infinitesimally small opportunity for those with disabilities to have a hook to challenge is why this amendment, from my perspective, is vital.
Senator Gold: I respect what you said. Thank you. I would rather if I could defer my intervention until I hear from others because this is really important. I want to have the opportunity to speak once and fulsomely.
The Chair: I appreciate that.
Senator McPhedran: I want to begin by thanking both Senator Osler and Senator Pate for their comments. It is very much appreciated and endorsed.
May I also though bring to our collective attention through asking a point of clarification of Senator Cotter?
The Chair: Of course.
Senator McPhedran: Senator Cotter, we heard evidence here that, in fact, we have a strong, clear precedent and that is the Merchant Seaman Compensation Act, sections 10 and 11, where there is similar wording to the amendment that has been proposed here. It’s a clear example of a federal benefit that is insulated from set-off or clawbacks. I wonder if you, Senator Gold and the officials — has that act been challenged in the way that you have warned us would have dire consequence should we go ahead with this amendment? Has it been constitutionally challenged in the way that you have described to us this morning as being such a threat to our making this amendment?
Senator Cotter: Not that I know of.
Senator McPhedran: Not that I’m aware of either, Senator Cotter. There is no evidence whatsoever of it being challenged. It has stood. It has protected merchant seamen, and this is the kind of protection that we are seeking this morning here through this amendment.
Senator Dasko: I want to elaborate on what Senator McPhedran has said. Committee members will remember that we had testimony at the very last of our committee meetings from two lawyers who work in this field and who made the case very strongly that this approach we see in the amendment is absolutely valid, and that it is within the realm and the bounds of the Constitution. I did ask them at that meeting whether litigation might be a possibility, even given the airtight explanation they gave. This was really a very strong proposal.
Their answer was, I would say, similar to Senator Pate’s analysis, looking at it from a slightly different angle. The answer was it’s always possible; anything is possible. I’m not quoting them directly, but I’m quoting the answer that they gave in a general sense. Of course, anybody might try to take this on. A province might try to challenge this in some world, but anything is possible; these actions are possible. They were absolutely confident that this addition to the bill would stand the test of time, and it would be a positive addition to this bill and to our consideration of the issues at stake.
It’s a very important issue — this is the issue of clawbacks. We’re talking about what is absolutely relevant to the income of Canadians with disabilities. I think that’s the way we have to look at it.
The Chair: Senator McPhedran, do you have new information to add?
Senator McPhedran: I do. It has not yet been tabled before the committee because of the emphasis made by Senator Cotter in opposing this amendment of the esteemed constitutional experts he has consulted. I have no doubt that has taken place.
When I went to Osgoode Hall Law School, I was very fortunate to take my constitutional law courses from Peter Hogg. I would like to read into the record what Professor Hogg stated very clearly in his Constitutional Law of Canada. It will be very familiar to anyone who has any legal training. It states:
. . . the federal Parliament may spend or lend its funds to any government or institution or individual it chooses, for any purpose it chooses; and that it may attach to any grant or loan any conditions it chooses, including conditions it could not directly legislate.
I would ask senators, those of you who are not familiar with Professor Hogg — I think even Senator Cotter and Senator Gold would agree — he was the pre-eminent constitutional expert used over and over again in all of the negotiations around the Constitution Act, 1982, and the Canadian Charter of Rights and Freedoms.
The Chair: Did you want to go last?
Senator Gold: It’s not that I want to go last for the sake of going last; it’s that I wanted to hear others. I’m thankful for the opportunity. So Senator Seidman may go.
Senator Seidman: I don’t want to belabour this — and I did hear the very strong testimony, indeed, that was very important. But I have to say, once again, as I did yesterday that being a senator representing Quebec, I would not be able to support this because of its intrusion — obvious, clear intrusion — upon provincial jurisdiction. I wanted to put that out on the table.
Senator Gold: Thank you, colleagues.
This is an important issue. I’m mindful, Senator Moodie, of tone, so I may err on the side of being a bit pedantic, and I apologize for that.
The government feels very strongly about this. It’s not because the government is indifferent to the problem, the reality and the possibility of clawbacks. It is because this, in my humble opinion, is clearly unconstitutional. Respectfully, lawyers will disagree, and constitutional lawyers can always put arguments on the table. I’m asking you to listen to my analysis and take it for what it’s worth. I don’t normally do this, but I taught constitutional law at Osgoode Hall Law School my whole professional career. I still teach it in one form or another when I’m able to at McGill. Peter Hogg and I were colleagues and friends. He was my mentor in constitutional law. I don’t know how dog-eared my copies of his book were, so I want to be careful in what I say. But let me explain to you why I think this is so clearly beyond federal jurisdiction, and is therefore something that we should resist doing.
To the point of the spending power, Senator McPhedran, it is absolutely true that the practice has been that the government can spend money and give money to the provinces — you quite properly quoted that — and can attach conditions to that money, even if they couldn’t legislate in that area. The federal presence in the health system is a function exclusively of the spending power, but that is a separate question of whether Parliament can legislate under the spending power in areas dealing with private companies in areas of private contracts. Perhaps one of the most leading cases on the balance of power or jurisdictional divisions was to deal with insurance back long before any of us were born. Respectfully, Professor Hogg’s full analysis of the spending power does not go anywhere near as close to justifying this particular amendment, well-intentioned as it is.
Second, to Senator Pate’s point — and again, with respect — it is a conventional analytical approach in analyzing the constitutionality of legislation that you start with whether the government had the power to pass the law in the first place, regardless of whether it’s a good law or bad law and regardless of whether it may infringe upon rights. Unless the Government of Canada has the actual power under the Constitution according to the words of the Constitution and the case law that’s interpreted, it cannot act. Literally, its legislation is of no force or effect.
If it has the power — and this is how a judge would analyze it and lawyers would argue before a judge — if and only if you can make the case that it is intra vires — within the power — you can then consider whether it violates or infringes upon the Charter. The Charter does not give positive legislative jurisdiction to either the federal Parliament or the provinces in areas that the Constitution Act, 1867 — the old British North America Act that we all studied — would allow.
So it is true that the Charter is an important part of our constitution, but it sits on top of the powers that may or may not exist in the legislature. For this reason, it is a certainty that it would be challenged, and I predict — and one can never know with 100% certainty — that this will fail.
What are the consequences of that?
Before I get to the consequences, recall that this legislation has built-in political and parliamentary procedures for holding the government and the regulatory process to account. This is not a blank cheque. I’m not saying this can be done by regulation; please don’t misunderstand me. At every step of the way, reports have to be given, accounts will be made and the public and parliamentarians will be looking at this: What is the content of the federal-provincial agreements? What have the provinces agreed to do in their jurisdictions with regard to clawbacks? That ought to be a subject of serious conversation between the minister and their counterparts.
You’ve read the bill. I won’t belabour the point, but there is one final point — and please indulge me. Passing a piece of legislation that is, in my mind, clearly and seriously constitutionally vulnerable will inevitably result in delays of the passage of this bill, and would have who knows what kind of knock-on consequences for the ability of the government to get through the regulatory process with the collaboration and cooperation of provinces, territories and the community.
When you put it all together, the risk far outweighs the reward. Were the Constitution to be different, we would support this.
The Chair: I have one short question —
Senator McPhedran: May I ask a question, please?
The Chair: You may.
Senator McPhedran: Senator Gold and Senator Cotter, the Merchant Seamen Compensation Act of 1985, almost 40 years ago, has never been challenged — Senator Seidman, it has never been challenged by Quebec or by anyone. This is what it says:
. . . the amount of compensation payable under this Act is not capable of being assigned, charged or attached and shall not pass to any other person by operation of law nor shall any claim be set off against it, including, in Quebec, by way of compensation.
For 40 years, this has stood and never been challenged.
Senator Gold, my question to you is this: How is it that, with this clear proof of this kind of protection that has operated for almost 40 years in an analogous situation, could you make the argument that it would be unconstitutional for us to do the same kind of protection and honour the Charter of Rights and Freedoms with this proposed amendment?
Senator Gold: I won’t repeat the argument that I made, but if you look at the language of the proposed amendment, Senator McPhedran, it goes directly to the contracts, the insurance plans or any instrument of private companies.
I don’t confess to be familiar enough with the details, the politics or whatever understandings have been made in the maritime situation. All I do know — and I’m saying this with as much confidence as predictions will allow, but with the confidence based upon a lifetime of study, research and writing on this and on equality rights, if I may add — is that this screams unconstitutionality. Given the context of this — Senator Seidman alluded to Quebec — I believe that many provinces, not just Quebec, object to the spending power. Important, serious people at the highest levels of government and in many provincial governments also do.
This is a recipe for disaster if we believe that this bill, however imperfect a framework bill might be, is an important bill that needs to get across the finish line so that we can then have the framework, regardless of changes of ministers or even government.
Senator McPhedran: Supplementary question.
The Chair: Colleagues, I wish to manage this in as inclusive and yet as efficient a manner as I can. Senator Dasko is ahead of you, so I’m going to accept and I’m going to now suggest that there are two final interventions, Senator Dasko and Senator McPhedran, the responses and then we should move on to clarifying our intentions on this amendment.
Senator Dasko: Very briefly. We have in front of us two different and very diverging analyses of the constitutionality of this. We had the experts at our committee who spoke very strongly about the constitutionality of this provision. I think we should decide on the side of enhancing the rights of those with disabilities. That’s the way I think we should lean in this particular case. Thank you.
Senator McPhedran: It’s a question that is an awareness of the Supreme Court of Canada decision in looking at the federal power — exactly the points that you’ve been making, Senator Cotter and Senator Gold — to deal directly with insurance companies. The Supreme Court of Canada in that Genetic Non‑Discrimination Act reference held that a provision that prohibited insurance companies from asking, as a term of their contract, whether someone had a genetic test or requiring someone to take a genetic test — the Government of Canada, through that federal legislation, reached directly into the power of the insurance companies.
Your regard and respect for private insurance companies are interesting and noted, but the Supreme Court of Canada has been very clear, as was Professor Hogg, that this is a power that the federal government does have. There is nothing unconstitutional about the federal government deciding to protect a benefit.
The Chair: A final answer.
Senator Gold: I’m sure you didn’t mean to imply that my motivation or the government’s is to protect private insurance companies. Tone does matter, and I’m sure you didn’t mean that.
I don’t want to be pedantic, so I won’t. Clearly, we are ripe for a vote, but there are technical constitutional doctrines, whether it’s the ancillary doctrine to which you refer or the necessarily incidental doctrine. The evolution of jurisprudence makes those arguments exceptionally weak, if not seriously available, in this particular case, although they may be in other cases.
This is a framework legislation. However meritorious it is to protect disadvantaged, vulnerable people from being badly treated by insurance companies — we share that objective — it is not necessarily incidental to the purposes of a framework agreement, one that envisages the engagement through every step of the process, not only with members of the disability community, but also with provinces, territories and the private sector. It would fail that test, in my humble opinion.
The Chair: Thank you, colleagues.
Shall clause 9, as amended, carry?
Some Hon. Senators: No.
Some Hon. Senators: Yes.
The Chair: Recorded vote.
Emily Barrette, Clerk of the Committee: The Honourable Senator Omidvar?
Senator Omidvar: Yes.
Ms. Barrette: The Honourable Senator Bernard?
Senator Bernard: Yes.
Ms. Barrette: The Honourable Senator Bovey?
Senator Bovey: No.
Ms. Barrette: The Honourable Senator Cotter?
Senator Cotter: No.
Ms. Barrette: The Honourable Senator Gold, P.C.?
Senator Gold: No.
Ms. Barrette: The Honourable Senator Dasko?
Senator Dasko: Yes.
Ms. Barrette: The Honourable Senator McPhedran?
Senator McPhedran: Yes.
Ms. Barrette: The Honourable Senator Moodie?
Senator Moodie: Yes.
Ms. Barrette: The Honourable Senator Osler?
Senator Osler: Yes.
Ms. Barrette: The Honourable Senator Pate?
Senator Pate: Yes.
Ms. Barrette: The Honourable Senator Petitclerc?
Senator Petitclerc: Abstain.
Ms. Barrette: The Honourable Senator Seidman?
Senator Seidman: No.
Ms. Barrette: The Honourable Senator Burey?
Senator Burey: Yes.
Ms. Barrette: Yeas, 8; nays, 4; abstentions, 1.
The Chair: Accordingly, the motion carries.
Shall clause 9, as amended, carry?
Some Hon. Senators: Yes.
The Chair: Agreed.
Shall clause 10 carry? There are amendments.
Senator McPhedran: Madam Chair —
The Chair: Yes, Senator McPhedran, just give me a moment.
All right. Senator McPhedran, you’re moving an amendment?
Senator McPhedran: I am.
The Chair: Thank you.
Senator McPhedran: But I believe that Senator Lankin had the prior proposal, and Senator Dasko may want to clarify.
The Chair: Who is speaking? They are very similar. They are, in fact, superfluously similar.
Senator McPhedran: I will —
The Chair: One of you should kindly move the amendment and —
Senator McPhedran: I would be happy to do so. I had under —
Senator Dasko: I withdraw the amendment from Senator Lankin. They’re not identical, and the one from Senator McPhedran, she will speak to.
Senator McPhedran: It is my understanding that Senator Lankin has encouraged me to move this amendment, and I’m very pleased to do so.
This relates to clause 10 of the bill. It is currently stated as, “All benefits payable under this Act are to be paid out of the Consolidated Revenue Fund.”
I’m suggesting that there be a clause 10.1 that looks at what is considered by many to be a very important rule of natural justice, and that is the whole notion of appeal. I move:
That Bill C-22 be amended on page 4 by adding the following after line 5:
“10.1 A person, or any other person on their behalf, may appeal, to a body identified in regulations made under paragraph 11(1)(i), a Minister’s determination
(a) that the person is ineligible for a Canada disability benefit; or
(b) of the amount a Canada disability benefit that the person has received or will receive.”.
The reasoning for this is that the silence in the statute does not in any way indicate that the regulations would be able to take care of this. Once again, we have this uncertainty that always exists before regulations have actually been prepared and issued, and the need here is that when we are talking about such an essential income source for people with disabilities living in poverty, it is crucial that the right to appeal is in the statute.
Senator Pate: I would support this amendment. In terms of disability benefits writ large, oftentimes people are first denied in provincial settings as well. In addition to what Senator McPhedran has said, I think the importance of allowing for this kind of appeal process is vital.
Senator Dasko: I also support this amendment. I think it’s important to note that the bill mentions in a couple of places “appeals,” but it does not require appeals. It just mentions that regulations may be made about them, but it doesn’t actually mention that appeals are specifically a part of the process. It doesn’t guarantee appeals.
I know the minister has spoken about her desire to have appeals, but if it’s not in the bill, then it’s deficient in this respect. I think it’s important for us to support this amendment and I support it. It is also supported by Senator Lankin, and that is why I withdrew her amendment, which also dealt with the subject of requiring appeals.
Senator Cotter: Senator McPhedran is absolutely right that appeals and the right of appeal are absolutely required as a matter of natural justice, even beyond the question of their existence in law or regulations. That can be and is intended to be fully constructed through the regulation process. I’ll come to Senator Dasko’s point in a moment under section 11(1)(i).
Furthermore, the bill as amended in the other place contemplates in 11.1 the full engagement of the disability community — sorry, in the collaborative development, 11.1, in collaboration, including the development collaboratively regarding an appeal process.
In some ways, this is contemplated as being a partnered approach to a quality appeals regime. So this amendment, while heartfelt, will be and can be fully achieved through regulations. It’s not uncommon for appeal processes to be built through a regulatory framework.
With respect to Senator Dasko’s point, she is right that the language of 11(1) in regulations is facilitative by the Governor‑in-Council, but this is how regulations are always formulated. Occasionally we might order something, but even the benefit is constructed in language that is facilitative. All of those that are introduced by the Governor-in-Council may make regulations. But the idea that we would be here and we leave it to the Governor-in-Council to decide whether it will do any of these things is, with the greatest respect, a fantasy because the Governor-in-Council has come to us saying that this is what we want to do. It is fully achievable and intended to be achieved through this process and through collaborative dialogue with the disability community so that the appeal process is established in a way that’s right for them.
I don’t object to the concept of appeals, but it’s not necessary in the bill and is fully contemplated by the regulations. I’ll respectfully vote against the amendment.
The Chair: Thank you, colleagues. Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: No.
Some Hon. Senators: Yes.
The Chair: Recorded vote.
Ms. Barrette: The Honourable Senator Omidvar?
Senator Omidvar: No.
Ms. Barrette: The Honourable Senator Bernard?
Senator Bernard: Yes.
Ms. Barrette: The Honourable Senator Bovey?
Senator Bovey: No.
Ms. Barrette: The Honourable Senator Burey?
Senator Burey: Yes.
Ms. Barrette: The Honourable Senator Cotter?
Senator Cotter: No.
Ms. Barrette: The Honourable Senator Gold, P.C.?
Senator Gold: No.
Ms. Barrette: The Honourable Senator Dasko?
Senator Dasko: Yes.
Ms. Barrette: The Honourable Senator McPhedran?
Senator McPhedran: Yes.
Ms. Barrette: The Honourable Senator Moodie?
Senator Moodie: Yes.
Ms. Barrette: The Honourable Senator Osler?
Senator Osler: Yes.
Ms. Barrette: The Honourable Senator Pate?
Senator Pate: Yes.
Ms. Barrette: The Honourable Senator Petitclerc?
Senator Petitclerc: Yes.
Ms. Barrette: The Honourable Senator Seidman?
Senator Seidman: No.
Ms. Barrette: Yeas, 8; nays, 5; abstentions, 0.
The Chair: Colleagues, accordingly, the motion carries.
Shall clause 10 as amended carry?
Hon. Senators: Yes.
The Chair: Shall clause 11 carry? I have in my notes a number of amendments.
Senator Dasko: I think Senator McPhedran has one that precedes Senator Lankin’s, if I’m not mistaken.
Senator McPhedran: No. Senator Lankin’s is 13 and I’m listed as 14. I’m very pleased to support Senator Lankin’s proposed amendment. They’re identical except for one additional (c).
Senator Dasko: You are amendment at clause 11, page 4, adding after line 8 “was before” —
Senator McPhedran: Are you looking at 12? Because 12 had to be withdrawn because of a previous defeat.
The Chair: We are on clause 11, page 6.
Senator McPhedran: Replacing lines 11 and 12?
Senator Dasko: Yes, is that where we —
Senator McPhedran: Yes.
Senator Dasko: I’m sorry. I thought we were at another point.
It is moved by Honourable Senator Lankin, P.C.:
That Bill C-22 be amended in clause 11, on page 6, by replacing lines 11 and 12 with the following:
“must take into consideration
(a) the Official Poverty Line as defined in section 2 of the Poverty Reduction Act;
(b) the additional costs associated with living with a disability;
(c) the challenges faced by those living with a disability in earning an income from work;
(d) the intersectional needs of disadvantaged individuals and groups; and
(e) Canada’s international human rights obligations.”.
Colleagues, during our seven meetings, we had many witnesses who came to speak to us about the factors and conditions that they felt should be considered when it comes to developing a benefit for people with disabilities. The existing bill already includes part (a), that is to take into consideration the official poverty line as defined in section 2 of the Poverty Reduction Act. That is already there. What we are talking about adding are parts (b), (c), (d) and (e).
We know from testimony that people with disabilities have tremendous additional costs of living in terms of many services in their lives — transportation, food preparation and many other additional costs. This should be an important consideration when it comes to developing the benefit.
We know, also from testimony, that they face many challenges in earning a living. A number of witnesses have asked us to take this into account and that this be mentioned or noted in the legislation as a factor that should be considered.
We’ve also heard about intersectional needs; we’ve heard about the particular barriers and issues faced by women, people of racialized backgrounds and Indigenous people. We heard how those statuses can create additional barriers and needs.
We have also heard about Canada’s international human rights obligations and how that should be a consideration in setting the benefit levels.
Therefore, essentially, these factors are coming to us from witnesses. We have spent seven meetings with witnesses, and they have come here to tell us their stories. I feel we are obliged to take their testimony and stories into account. We are obliged to improve this bill by taking those factors into consideration. Why are we here if it is not to improve this bill?
I don’t think we are here to close the door on the testimony of people with disabilities who have come here to tell us these things. These are ways that we can improve this bill by actually mentioning and putting into the legislation these factors. Why would we have done this work and why would we have invited witnesses to this committee to take the time and effort to come here, knowing how difficult it is for so many people with disabilities to actually come to this setting and to make their case? I believe this reflects their voices.
So I’m putting this on the table. Actually, this is an amendment from Senator Lankin, supported by me, obviously. Therefore, I feel that we should write this into legislation so that these factors are actually being considered.
I mentioned that the language does say “must take into consideration” so that’s a very important part of this. It just takes the wording that is there with respect to the poverty line and includes some additional factors that should be there.
The wording just builds upon what is there to reflect the testimony we have heard over seven meetings with witnesses who have come here to talk about the conditions of life and what should be considered in the benefit.
Senator Burey: Thank you to my honourable colleagues and senators. I said in one hearing when we had witnesses that this is a sacred space. Just following up on what Senator Dasko spoke about, the witnesses came here, they bore witness to their lives and to their struggles.
I didn’t sleep last night, I have to confess, because I have been listening with humility. I understand the importance of this room, and I’ve been really listening deeply. This was an amendment that I put forward, but when I saw the package, I took mine out. So I want to speak in favour of this.
If you will remember, honourable senators, this clause was already amended in the other place. They had put in the consideration of the official poverty line. I think we’re just building upon that, so I encourage all of you to support it.
Senator Pate: Similarly, I barely slept thinking about this last night, but also in the past, and in speaking to folks as recently as Monday of this week — meeting with organizations — it is very clear that huge pressure has been put on groups within the disability community to accept this as is and not push for more. That is too common a situation that those with the least are put in a position they are put into, not just on this legislation but on others we have passed, without or with amendment. It strikes me as vitally important that where they are, for all kinds of reasons, not in a position to stand up in this moment because they are relying on the government for funding, for the resources and for this bill, I think it behooves us to pass an amendment like this to try to ensure that this bill is the best it can possibly be.
With respect to all of the arguments that are being raised, there will be challenges to this legislation, but as I have already stated — so I don’t need to repeat it — it should not fall on the most dispossessed — the people this very bill is designed to assist — to bring those challenges. That’s where we’re at.
Senator Bernard: I think Senator Bovey was ahead of me.
Senator Bovey: I hear what everybody is saying and I don’t disagree. However, I’m really concerned about the timing. So I want to speak by way of a question, if I may — maybe to Senator Cotter or Senator Gold.
We have agreed to a couple of amendments already, which will take the bill back to the House. I, like Senator Pate, have been hearing from people through the testimony we had, in between the testimonies we had and more recently. Indeed, last night, I got a letter in which people were thanking us for what we were doing, but also voiced very real concerns. They’re feeling that we’re at a historic moment that is going to make a historical improvement in the lives of many people with disabilities, including the community we represent. This is from the Winnipeg branch of the groups that we have heard from.
Everyone agrees that we need the Canada disability benefit now. Let’s not put this at risk. We have never before been this close. People with disabilities are counting on the Senate to get this bill over the finish line. My question is about that finish line. I don’t disagree with the intent in this at all. I’m very fearful for the people we all know with whom we have worked — what is the risk about them not getting the funding? Where are we in this path in the middle of May?
Senator Cotter: I think this above my pay grade. I would like Senator Gold to reflect on it. I would like to respond after.
Senator Gold: I don’t know. I shared my preoccupations; I won’t repeat them. I hope I’m wrong, of course. I don’t think anybody in this room wants to see this bill not be dealt with before we rise. That’s now out of our control, assuming, as I do, that we will report out with a number of amendments. There seems to be — if I can read the room.
The more amendments that we pass, the longer it will take for the government to arrive at a conclusion, in consultation with other members of the opposition, and the fewer sitting days there will be for them to decide whether they will use that time to send it back to us before we rise.
I am repeating myself, so I don’t know. I certainly hope that my fears about the risks to this bill and to those who are waiting for it are unfounded.
Senator Bernard: Respectfully, colleagues, I have been thinking a lot about this bill and about several amendments. This was one I was prepared to propose, so I’m grateful to my colleagues who did propose this amendment.
I want to speak in support of this amendment. I had a sleepless night as well. We could have talked to each other had we known we were awake all night.
I want to speak about the marginalization within communities of disabilities. Yes, this is a historic moment in time. We have experienced many historic moments in time through our study of this bill. One of those historic moments in time was hearing from ASE Community Foundation for Black Canadians with Disability. They are the marginalized within the marginalized. We heard very clearly from them that issues of intersectionality need to be specifically addressed in this bill. We also heard similar messages from DAWN.
I won’t belabour the point. I will just say that I’m speaking in favour of this motion, and I’m doing so because I believe that these additions strengthen the bill and will speak to the evidence we heard from people who have really not been included in these processes.
Senator Cotter: I have two brief observations, or maybe three. The first is that this is all wise, let me say that; these points are wise. They are not needed in the bill because it’s hard to imagine that in the dialogue that will take place between the disability community and the government, and the evidence that we have heard, that these will be front and centre in the construction of the regulations. Much of the preamble speaks to these very points.
Senator Bovey quoted or referred to one group, and I’m a great admirer of Senator Pate. I participate not nearly as much in the challenged communities of the country as she does, but I am deeply connected with communities of interest connected to disability, and I’m troubled by her suggestion that the witnesses who came were somehow coerced by the government to express support for this bill unamended when certainly all the extracurricular communication to me is unqualified support for moving this quickly.
In that sense, it’s important to validate their testimony, like the testimony of people that Senator Bernard just referred to.
The Chair: I’m just reflecting on that, senator, but let’s move on.
Senator Petitclerc: I have a very simple observation as I’m debating where I stand on this specific amendment. We did hear that in committee by many witnesses. I think we all agree with that.
I do recognize — and I think Senator Cotter mentioned it — that some of it is in the preamble already. This may be a question for Senator Dasko. My understanding is that you will also be bringing an amendment on intersectionality later on, am I correct in that? In the preamble. Am I correct to think that intersectionality, in more detail — I have your amendment here — could be covered in the preamble later on? I’m not sure it’s a question, but I would like to hear it.
Senator Dasko: Yes, I am proposing that in the preamble, but I think it’s important to have it here as well because this actually sets it down in the bill as requiring to be a consideration when the benefit is being determined.
The preamble is important, but it’s more of an aspirational statement. I think it’s important. Senator Lankin, of course, this is her amendment, but she and others — Senator Burey, Senator McPhedran and others who had a similar amendment — in working on this, we felt this was important to be in the text of the bill itself.
Senator Pate: Given the intervention of Senator Cotter, I must respond that the manner in which that kind of coercion can happen is often not obvious to us. Part of the reality is that when you’re dealing with community-based groups, of which I was a member of several for the better part of 35 or 40 years before I came to the Senate, it comes in the form of “If we don’t vote for this, then there will be nothing,” it comes in the form of “This is not politically the right time” and it comes in the form of “This is the only option available right now.”
In addition to what was raised, if it’s in the preamble, it can be an indication of legislative intent, but it’s not as clear as if it’s in the bill itself. I feel an obligation as someone who has worked with and in collaboration with many of those groups — and I have said it to them directly, I hear what you’re saying. If I were in your position, I might be saying the very same thing to my colleagues because it’s the only option being offered. Our responsibility is to change that so that it’s not the only option being offered and that there is a more fulsome response. That’s the spirit in which I support these amendments.
The Chair: Senator Gold do you wish to go last?
Senator Gold: No, I’m just mindful of adding something that hasn’t been mentioned.
A small point and in some sense this is not an answer to the point that Senator Pate made, but colleagues should know that our obligations under the United Nations Convention On The Rights Of Persons With Disabilities require us to consider intersectionality. That’s already in the preamble, whatever else we may choose to do.
More importantly, colleagues, you should appreciate that this amendment — my understanding is this amendment was raised at the Human Rights Committee in the other place — was ruled out of scope and ruled inadmissible because of a lack of Royal Recommendation. It was challenged. The chair ruled so. It was challenged and the ruling was sustained. You should know that this has been looked at in the other place, ruled inadmissible for reasons that applied both to this place and to the other place.
Senator Seidman: I am mindful of your saying we need to add something different, and I’m afraid I’m not adding a whole lot different in some respects because I struggled, like all of you, with this legislation. I have gone the spectrum from we need lots of amendments to maybe we need few or none.
The frustration is that it’s framework legislation. That makes it really difficult because we all feel it leaves so much to the regulators and to cabinet. How can we be sure that what we heard from people suffering in the disability community will be covered? How can we be sure?
The only way that I could try to satisfy myself — and it’s very poor satisfaction — is to ask: Do I trust the disability community to make their voices very loud when they sit at that table being consulted by the minister? Do we trust their voices and their pressure? Judging by the phone calls I have had until yesterday, there is a huge pressure to ensure there are certain things that are in this legislation. I feel them. It’s really challenging to know which way to go.
I want to put that on the table. The frustration is the framework legislation. That’s really bottom line frustration.
Senator McPhedran: I was going to frame this as a question to Senator Gold, but I have been able to check. I just would like to place on the record that this proposed amendment from Senator Lankin, with my full support — and an almost identical amendment that I have withdrawn in favour of Senator Lankin’s amendment — was not ruled out of scope at the committee in the House of Commons.
So perhaps I misunderstood what Senator Gold said, but I heard him say that this amendment was placed before the committee in the House and it was ruled out of order. The checking that we have been able to do is that is not the case.
The Chair: Senator Gold?
Senator Gold: If I used the term “out of scope,” that was the wrong word. My understanding is it was ruled inadmissible for lack of a Royal Recommendation. That is what I have been advised. I would perhaps ask for clarification, if I may.
The Chair: Let’s ask for clarification from the officials.
Krista Wilcox, Director General, Office for Disability Issues, Employment and Social Development Canada: I can check, but I do not believe this was moved at committee that I can recall. But we can check that and inform the committee.
Senator Gold: Just for the record, obviously I was advised that this was the case, but if I was ill-advised, my apologies to the committee. I do believe it would behoove us to check even before we vote. I would not like the vote to be influenced by an error that I brought to the table, if indeed it was an error. But I would like the vote to be fully informed if that is acceptable to the committee.
The Chair: I hope the officials are checking. But I would remind us all that we are not bound by the same rules. We have a larger scope and different rules. We are the masters of our domain within this whole committee within the official Rules of the Senate.
Senator Petitclerc: If it can help, I do have the printed amendments from the Human Resources, Skills and Social Development and the Status of Persons with Disabilities Committee in the other place. I have read through them, so this exact amendment was not proposed at that committee. There were some amendments that were ruled inadmissible for the reasons Senator Gold mentioned, but not this specific one, if that helps.
The Chair: It does help. I think you all heard Senator Petitclerc refer to the transcript of the House of Commons. Colleagues, is it your pleasure to adopt the motion in amendment?
Hon. Senators: Agreed.
Senator Gold: Sorry?
The Chair: Let me repeat that. Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Yes.
Senator Gold: No. I was hoping that we could get clarification before we voted, but if it clearly makes no difference to the majority, I’ll ask for a recorded vote.
The Chair: All right, recorded vote.
Ms. Barrette: The Honourable Senator Omidvar?
Senator Omidvar: No.
Ms. Barrette: The Honourable Senator Bernard?
Senator Bernard: Yes.
Ms. Barrette: The Honourable Senator Bovey?
Senator Bovey: I’m going to abstain.
Ms. Barrette: The Honourable Senator Burey?
Senator Burey: Yes.
Ms. Barrette: The Honourable Senator Cotter?
Senator Cotter: No.
Ms. Barrette: The Honourable Senator Gold, P.C.?
Senator Gold: No.
Ms. Barrette: The Honourable Senator Dasko?
Senator Dasko: Yes.
Ms. Barrette: The Honourable Senator McPhedran?
Senator McPhedran: Yes.
Ms. Barrette: The Honourable Senator Moodie?
Senator Moodie: Yes.
Ms. Barrette: The Honourable Senator Osler?
Senator Osler: Yes.
Ms. Barrette: The Honourable Senator Pate?
Senator Pate: Yes.
Ms. Barrette: The Honourable Senator Petitclerc?
Senator Petitclerc: No.
Ms. Barrette: The Honourable Senator Seidman?
Senator Seidman: No.
Ms. Barrette: Yeas, 7; nays, 5; abstentions, 1.
The Chair: Accordingly, the motion is carried.
We have more amendments to deal with. We will move on to an amendment proposed by Senator McPhedran, C-22-11-6-12.
Senator McPhedran: As you indicated, Madam Chair, we’re on page 6. We’re looking at the subheading “Amount of benefit” where we already have an amendment 1.1 looking at guidance for making regulations under paragraph 1(c) respecting the amount of a benefit.
We already have the beginning of guidance, and this is to strengthen the amendment that was put in place. That is that Bill C-22 be amended in clause 11, on page 6 by adding the following after line 12, which is the 1.1 to which I have just referred. This would be 1.2, and I am making a slight amendment in that I’m proposing today that it state:
Within twelve months of this act coming into force, the Governor-in-Council must make regulations under paragraphs 11(1)(a) to (f), (h), (i), (k) and (n) that are necessary to enable a Canada disability benefit to be paid in accordance with this act.
As I think the words clearly indicate, this is a reasonable amount of time for the government to actually follow through on the promise of this bill, and it is also to address the fact that there is a distinct possibility that this could go on for years. This is a very complex process that the government has proposed, particularly with federal-provincial-territorial negotiations, and this would reinforce the assurances we have received. But unfortunately, we have a minority government, and we have no guarantee that the current highly effective minister would remain in that position. So this speaks to the government as a whole and creates some greater certainty that what has been promised will actually be delivered within a reasonable amount of time.
Senator Seidman: I think the comfort I get from making the few amendments we’re making is that with Bill C-81, the Accessible Canada Act, we were in exactly the same situation. We received a piece of legislation. We were told by the community not to amend it. There were voices saying there were some important things we had to do to that bill.
By the way, we did make amendments. As you recall, it went to the House and they accepted all of our amendments, and it was done fairly quickly. But one of the major amendments we made to that bill was to establish a timeline for the regulations to be in effect and for the bill to come into full force.
I notice that you have changed from 10 months to 12 months. I noticed that the minister has also assured us in her letter that this will happen, but I feel more secure having it in the legislation, so I would support this.
Senator Cotter: I’m sympathetic to expectations that it be completed within 12 months. I want to make one observation, and then ask Senator McPhedran, if I may, a question.
The observation is that it seems to me quite possible — to be honest, I was thinking about the 10-month idea first but let’s think about it at 12 months — if the disability community says to the minister, “We don’t have this right. We want to talk more with our people and therefore we think we need more time.” Let’s say they communicate that. It seems to me unhelpful if the minister then has to say, “Sorry, I’m working to a 12-month deadline and we have to go with what we’ve got.” The degree to which this reduces the flexibility on the part of a disability community representative seems to me to be problematic.
My question, though, is: What happens if the minister doesn’t meet the 12-month deadline in the legislation? In what fashion is this enforceable?
Senator McPhedran: I think many of us who have been involved in drafting legislation — of which I am one — know that at the implementation stage, when you have clauses like this, enforceability is not the primary purpose of a clause like this. There are times when these deadlines have not been met. In my experience, usually there is an explanation made to Parliament about that. That has been acceptable. I see a similar scenario possible here, and I think that’s both established practice and acceptable.
Senator Pate: One of the issues that I have had discussions with disability groups, including some of the ones that have urged us to pass this, is that they want to see things as fast as possible. The fact that two years is one of the options is a concern for them. Again, I’m not part of the disability community, but when I was part of the community and we were given opportunities to consult, we could bring together people very quickly because it was in the interest of the community. I would suggest my discussions with the disability groups have indicated that would be the case here as well. My guess is if we put six months they would be happy, but that I would be making a guess at.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Senator Gold: No.
The Chair: I believe a roll call is called for.
Senator Gold: Recorded vote, please.
Ms. Barrette: The Honourable Senator Omidvar?
Senator Omidvar: No.
Ms. Barrette: The Honourable Senator Bernard?
Senator Bernard: Yes.
Ms. Barrette: The Honourable Senator Bovey?
Senator Bovey: Yes.
Ms. Barrette: The Honourable Senator Burey?
Senator Burey: Yes.
Ms. Barrette: The Honourable Senator Cotter?
Senator Cotter: No.
Ms. Barrette: The Honourable Senator Gold, P.C.?
Senator Gold: No.
Ms. Barrette: The Honourable Senator Dasko?
Senator Dasko: Yes.
Ms. Barrette: The Honourable Senator McPhedran?
Senator McPhedran: Yes.
Ms. Barrette: The Honourable Senator Moodie?
Senator Moodie: Yes.
Ms. Barrette: The Honourable Senator Osler?
Senator Osler: Yes.
Ms. Barrette: The Honourable Senator Pate?
Senator Pate: Yes.
Ms. Barrette: The Honourable Senator Petitclerc?
Senator Petitclerc: Yes.
Ms. Barrette: The Honourable Senator Seidman?
Senator Seidman: Yes.
Ms. Barrette: Yeas, 10; nays, 3; abstentions, 0.
The Chair: Accordingly, the motion carries.
We now move on to the next amendment. We will move to an amendment by Senator McPhedran C-22-11-6-15.
Senator McPhedran: Madam Chair, I have withdrawn mine because it is identical to Senator Lankin’s, and I think Senator Dasko is prepared to speak to Senator Lankin’s amendment.
The Chair: Thank you. Senator Dasko, C-22-11-6-15a.
Senator Dasko: Yes, we’re talking about clause 11, page 6, after line 15, yes, adding part 3. It states:
That Bill C-22 be amended in clause 11, on page 6, by adding the following after line 15:
“(3) When a regulation is made under paragraph (1)(a), (b) or (c), the Minister must cause that regulation to be tabled in each House of Parliament, on one of the first three days on which that House is sitting after that regulation is made, together with a report describing how the regulation will address the needs of persons with disabilities who live in poverty.”.
Colleagues, the purpose of this amendment is to alert and inform parliamentarians that the government is making a change under these sections of the act. This is really to bring the change into view so that parliamentarians are actually able to become aware relatively easily, as opposed to other methods of being informed like the Canada Gazette.
This change has been proposed by some witnesses who came before us. A suggestion from the Accessibility for Ontarians with Disabilities Alliance who actually put this forward. Again, it’s put forward so that parliamentarians will have an additional way to understand and learn about regulations that are being changed.
This could happen with a new government or the current government. Whatever the case may be, governments may want to change these regulations and this just simply informs parliamentarians that the change is made and asks for a report describing how the regulation will address the needs of persons with disabilities who live in poverty.
Senator Seidman: I have to say, I am one who always has insisted on parliamentary reviews of two years, three years, five years or whatever in order to maintain some sort of accountability in pieces of legislation. However, what I discovered to my chagrin is that of the 51 parliamentary reviews that were asked for since 2009, only 17 have actually filed reports. There was, in fact, no way to force this to happen. There is no way to enforce it.
What I have to say here is ministers, if you look, generally do file reports, but the regulations also have to be published in the Canada Gazette. Every disability community in the country will be waiting for the publication of the regulations in the Canada Gazette. Parliamentarians have the Canada Gazette. So I don’t really understand why we would have to amend the bill to ask for what is going to happen anyway.
I have to say that I have some trouble with the last three sentences when you say, “. . . a report describing how the regulation will address the needs of persons with disabilities who live in poverty.” I don’t know how to relate to that kind of a request. It seems so general to me. I’m not going to be able to support this amendment despite my standards of always wanting accountability for our pieces of legislation.
The Chair: Senator Dasko, I have a question for you or for the officials. Is there precedent for this kind of an amendment in legislation?
Senator Dasko: That’s an excellent question and I don’t have the answer. Sorry, Madam Chair.
The Chair: Could the officials help us out?
Ms. Wilcox: I am not a lawyer is what I would start with, but there are pieces of legislation that do require tabling of regulations in Parliament. I’m not aware of one that doesn’t have an effect to it, but we can certainly look and get back to the committee.
The Employment Insurance Act, for example, does have a mandatory tabling of regulations in the House, but not quite like this particular amendment that has been brought forward.
The Chair: It’s not unprecedented?
Ms. Wilcox: It’s not unprecedented, no.
Senator Pate: I was going to add that. One of the reasons to put it in here is — Senator Seidman is right. It appears in the Canada Gazette. It is often not noticed. This would require a tabling of this in Parliament and would put everyone on notice, and that is one of the main advantages from my understanding.
Senator Gold: The government is not able to support this mechanism. There is a reporting mechanism in the bill requiring the minister to provide updates on the regulatory engagement process within six months after coming into force with a further report one year after, and there are review provisions. It is one thing to require, and properly so, that regulations are tabled, but that every regulation must be tabled along with a report is clearly something that — and I may be wrong. I believe I was wrong earlier today, and I’m trying to get confirmation of why that was wrong so that at least it is on the record for my own sense of self and for your benefit. But in this regard, I think this is unnecessary, and, to the best of my knowledge, requiring each and every regulation to be tabled with a report explaining its possible impact even before it’s had time to be applied and live is cumbersome and unnecessary. The government cannot support this amendment.
Senator Dasko: I would like to clarify the points that Senator Seidman raised. Yes, it’s true that it is in the Canada Gazette, and just as Senator Pate said, this amendment is meant to raise the level of awareness in a different setting — in the setting of Parliament. It is often the case that parliamentarians may not see or notice something that is in the Canada Gazette.
In terms of the report, broadly speaking, this report will focus on the impact of the regulatory change. That’s essentially what it would be doing, but, of course, it does say, “. . . describing how the regulation will address the needs of persons with disabilities who live in poverty.”
So the impact is with respect to how it’s going to impact people with disabilities who live in poverty. The goal of the bill is to raise the bar or level of supports for people who live with disabilities beyond the poverty line, to pull them out of poverty. This is what the report will do. It will focus on the impact of the change in this respect.
Senator Cotter: Just briefly, this is a topic on which the disability community is highly interested, and chances are pretty good they will read the Canada Gazette before we ever will, or parliamentarians, and that suggests to me, at least in terms of public information and the mechanism by which parliamentarians can discover immediately what regulations have been changed, it will already be easily accessible. The report that is asked for is limited to focusing on the effect on the needs of persons with disabilities, but that would require the minister to report every time a regulation is changed.
In theory, you might say this is a really good way for the government to operate, but maybe it should apply, then, to every regulation that is passed, the minister reports its impact. If you have a look at how many regulations are passed every year and the government, there would be nothing but writing reports. I understand the spirit of it, but I think it is unnecessary in light of the other accountability mechanisms in the bill.
The Chair: We have opened up a whole new discussion now, Senator Cotter.
Senator Pate: With respect, it specifically is only three elements, not all the regulations. It is not opening up every single regulation. It is those three areas that are defined.
Senator Dasko: That’s exactly the point I was going to make. We’re on to the same thing. Just three parts, part 1(a), (b) and (c). If regulations change in those very specific areas, that’s what this refers to.
The Chair: Thank you for the clarification to both of you.
Colleagues, is it your pleasure to adopt the motion in amendment?
An Hon. Senator: Recorded vote, please.
The Chair: We shall have a recorded vote.
Ms. Barrette: The Honourable Senator Omidvar?
Senator Omidvar: No.
Ms. Barrette: The Honourable Senator Bernard?
Senator Bernard: Yes.
Ms. Barrette: The Honourable Senator Bovey?
Senator Bovey: No.
Ms. Barrette: The Honourable Senator Burey?
Senator Burey: No.
Ms. Barrette: The Honourable Senator Cotter?
Senator Cotter: No.
Ms. Barrette: The Honourable Senator Gold, P.C.?
Senator Gold: No.
Ms. Barrette: The Honourable Senator Dasko?
Senator Dasko: Yes.
Ms. Barrette: The Honourable Senator McPhedran?
Senator McPhedran: Yes.
Ms. Barrette: The Honourable Senator Moodie?
Senator Moodie: Abstain.
Ms. Barrette: The Honourable Senator Osler?
Senator Osler: No.
Ms. Barrette: The Honourable Senator Pate?
Senator Pate: Yes.
Ms. Barrette: The Honourable Senator Petitclerc?
Senator Petitclerc: No.
Ms. Barrette: The Honourable Senator Seidman?
Senator Seidman: No.
Ms. Barrette: Yeas, 4; nays, 8; abstentions, 1.
The Chair: Accordingly, the motion is defeated.
We go back to amendment — oh, are we ready to go? I thought we have one more.
Senator McPhedran, I have another amendment in my papers, Bill C-22-11-6-15a, which is materially —
Senator McPhedran: It is substantially different, Madam Chair, with respect. I will present this as a — since the defeat of the proposed (3), this becomes also a proposed (3), but with completely different wording and with a different intent. If I may speak to it.
The Chair: Of course.
Senator McPhedran: So there is quite a difference between this proposed amendment and the one that was just defeated. I would like to speak to the difference. This is about an alarm that could be sent at the point — again, we’re in a minority government. We have a very dedicated and capable minister. Statutes are not about the now. Statutes are much more about various configurations of government that we have no way to predict and no way to control. The heart of this bill is to actually lift people living with disabilities out of poverty. Therefore, any reduction or any de facto barriers that will make that not be the truth need to be — an alert needs to be attached to that. Not likely with this government, but one never knows what the future will bring, except we know that people living with disabilities will continue, even when lifted out of poverty, to be among those in this country with the lowest incomes and greatest barriers. We know that will continue to be the case.
The risk to them is huge. The nature of this particular amendment is to — beyond publishing in the Canada Gazette — go beyond the capacity of a government, through regulations, to undercut or undermine. We know — we’ve already established through numerous presentations to this committee — that the disability benefit could be as low as zero, that there is such complete scope in the way this statute has been constructed and the reliance on the regulations.
To that end of making sure that where there is a decision to reduce or to create barriers, this is what a new (3) amendment would do. Let’s remember, this is very specific. This isn’t about all the regulations. This is very specific:
That Bill C-22 be amended in clause 11, on page 6, by adding the following after line 15:
“(3) After the amount of the benefit and the eligibility criteria to qualify for the benefit are initially established by regulations, any regulations proposed by the Governor in Council that would reduce the amount of the benefit or make it more difficult for a person to qualify for the benefit must be tabled by the Minister in each House of Parliament, and the regulation may not come into force until it is approved by vote in both Houses of Parliament.”.
This is a follow-through on the promise of this bill to people living with disabilities in this country that once the Canada disability benefit is activated, the promise will be kept. If there is any reduction or ways of creating barriers for those who have already qualified, there will be on the record notice of this highly impactful change to their elected representatives and to their senators.
Senator Cotter: I understand the sentiment here and I support it. This would be unprecedented in federal or probably provincial legislation because, essentially, it undercuts the regulatory mechanism and basically returns one set of questions back to Parliament.
I support the sentiment that Senator McPhedran articulated, but it seems to me to be an unwise legislative mechanism to do this.
It’s also the case that one could imagine circumstances where some people who were inadvertently entitled to the benefit were adjusted out and that then becomes a parliamentary question, even though the whole structure of the bill is intended for it to be regulatory but also transparent. I wouldn’t support this amendment.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: I believe the “nays” have it.
Senator McPhedran: Could we have a list of votes, please?
The Chair: Of course.
Ms. Barrette: The Honourable Senator Omidvar?
Senator Omidvar: No.
Ms. Barrette: The Honourable Senator Bernard?
Senator Bernard: Abstain.
Ms. Barrette: The Honourable Senator Bovey?
Senator Bovey: No.
Ms. Barrette: The Honourable Senator Burey?
Senator Burey: No.
Ms. Barrette: The Honourable Senator Cotter?
Senator Cotter: No.
Ms. Barrette: The Honourable Senator Gold?
Senator Gold: No.
Ms. Barrette: The Honourable Senator Dasko?
Senator Dasko: Abstain.
Ms. Barrette: The Honourable Senator McPhedran?
Senator McPhedran: Yes.
Ms. Barrette: The Honourable Senator Moodie?
Senator Moodie: Abstain.
Ms. Barrette: The Honourable Senator Osler?
Senator Osler: No.
Ms. Barrette: The Honourable Senator Pate?
Senator Pate: Yes.
Ms. Barrette: The Honourable Senator Petitclerc?
Senator Petitclerc: No.
Ms. Barrette: The Honourable Senator Seidman?
Senator Seidman: No.
Ms. Barrette: Yeas, 2; nays, 8; abstentions, 3.
The Chair: Accordingly, the motion is defeated.
Colleagues, shall clause 11, as amended, carry?
Senator Gold: With your indulgence, chair, I finally had clarification, and again, I do want to apologize to the committee for inadvertently stating something that I now understand was not the case. The amendment around which there was discussion was an amalgam of different amendments at the committee.
What was deemed inadmissible due to the lack of a Royal Recommendation was the phrase that included people must be lifted above the poverty line. The amendment here and that was passed was to consider it.
Again, I had been ill-advised and I apologize to the committee.
The Chair: Thank you very much, Senator Gold, for that clarification.
Shall clause 12 carry?
Hon. Senators: Yes.
The Chair: Shall clause 13 carry?
Hon. Senators: Yes.
The Chair: Shall clause 14 carry?
Senator Petitclerc: I do have some questions before we proceed to clause 14. That’s where we’re at.
I just need some clarity from the officials. I will ask you a few questions. I will do so in French because my notes are in French. It’s coming from a conversation with Senator Lankin, but I’m supportive. I need that clarity as well.
[Translation]
I have a few questions to follow up on what we heard at committee and what we read in the bill.
In the bill’s initial version, meaning before the amendment passed at the Commons’ Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities, the act would come into force on a date set by decree. So, you’ll recall that the amendment was tabled and the clause was amended. What we’re currently looking at is a bill that will come into force, and I quote, “no later than the first anniversary of the day on which it receives royal assent,” so as we say in English, “no later than.”
What we’ve been told and what we can read shows that this is not wording we usually see for legislation coming into force. When we look at clause 5 of the Interpretation Act, there’s a clear reference to a date or a decree. However, in this case, we have a deadline, “no later than the first anniversary.” I just need to understand and make sure there’s nothing irregular and everything is consistent.
So, do you think the wording “no later than the first anniversary” refers to a date, and is it consistent with the Interpretation Act?
Are there examples? We tried to find examples of legislation including a date for their coming into force, or legislation with a coming into force of “no later than” —
[English]
Ms. Wilcox: Thank you for the question. I’m going to take them in a couple of points. I will say I’m not a lawyer, so I won’t speak to whether it complies with the Interpretation Act. I’m not able to do that.
First maybe on clause 5, that’s about the regulations. That would be about when the government makes the regulations. Those would come into force at the time they are made, which is different from the legislation itself. It could be the same time. Different legislation has that.
But this specific clause, clause 14, where your question is around the “no later than” —
[Translation]
Senator Petitclerc: It might be the translation, but I was referring to clause 5 of the Interpretation Act.
[English]
Ms. Wilcox: Sorry for that, just coincides. That also has a different date on it.
In fact, the “no later than” doesn’t actually have any way to be implemented, so there is no authority that has been given to the Governor-in-Council to actually bring the law into force earlier than the first anniversary. I can’t speak to the compliance, but there is a question about how one would bring the law into force earlier, as it doesn’t provide the authority to the Governor-in-Council to do so.
The Chair: Thank you, colleagues. Our time is over. We will resume our debate and discussion on Bill C-22 next week.
(The committee adjourned.)