QUESTION PERIOD — Employment, Workforce Development and Labour
Disability Benefits
June 22, 2023
My question is for Senator Gold. Both Minister Qualtrough and the Senate sponsor of Bill C-22 have acknowledged that the potential for clawbacks of the Canada disability benefit by private insurers is a real concern. How many Canadians does the government estimate are currently in receipt of long-term disability insurance and have income at or below the poverty line?
Thank you for your question, senator. I suspect this information is not readily available — I certainly don’t have it — as persons with disabilities may have multiple sources of income, including from various private insurance providers.
I would reiterate to this chamber the government’s commitment to lifting Canadians out of poverty by assuring their basic needs, such as safe and affordable housing, healthy food and health care, are provided for. The government’s commitment to individual dignity is a key pillar in Canada’s First Poverty Reduction Strategy, which the government first released back in 2018.
Thank you very much for that. Since our debates on Bill C-22, we have heard from a number of experts that some of the arguments put forth around the lack of constitutionality of the amendment proposed and rejected by the government was actually a red herring. The argument was not that the federal government has jurisdiction over regulating contracts, but, rather, that the argument as we were indicating is that the ancillary powers doctrine allows the federal government to legislate otherwise invalid provisions in order to achieve the objective, which, as you have pointed out, was the primary objective of the legislation — to achieve its valid exercise of spending authority to lift people out of poverty.
Many of these experts have quoted Professor Roderick MacDonald regarding the federal spending power. He talked about the fact that, historically, the “watertight compartments” metaphor of the division of powers has now been increasingly replaced by a more flexible doctrine that doesn’t take such a bright-line approach and is most significantly capable of enlarging the reach of the federal spending power:
As the Supreme Court moves to an expansive reading of the ancillary and national dimensions doctrines, the limits of jurisdiction in each order of government become much more difficult to pin down.
I’m curious whether the government considered this perspective before putting people’s access to the Canada disability benefit at risk by rejecting that amendment. And if so, why did they reject that analysis?
Thank you for the question. Of course, the government considered all relevant constitutional positions, doctrines and interpretations, and those of leading experts. I’m pleased that you mentioned the late Professor MacDonald. He was a colleague and a friend, as was the late Peter Hogg.
I’m not going to repeat the analysis that Senator Cotter provided. I agree with him. It is 100% clear that the ancillary doctrine only applies in the context of federal legislation under a federal legislative power. The spending power does not give Parliament the ability to legislate, and so the ancillary doctrine, therefore, does not apply. Though it is true that constitutional doctrines evolve, this one hasn’t. This one has been clearly established for decades and decades and is independent of whether or not cooperative federalism or the understanding of it ebbs and flows.
I could go on at great length. The arguments have been made. The government considered it. I believe the government made the correct decision with regard to the constitutionality. I’m also confident that the government, in its negotiations with the provinces and territories, and that the provinces and territories, in negotiations with private companies, will do the right thing by way of protecting those persons receiving benefits under this important program.
