Hon. Brent Cotter moved third reading of 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, as amended.

He said: Honourable senators, I rise to speak to Bill C-22. Parenthetically, I should say my own congratulations, Madam Speaker, but I want to say that I’m doing more than all our other colleagues in thanking you. I’ve started a small campaign among all of us to raise enough money to buy you a slightly smaller pair of gloves.

If I may be more serious in my remarks, I’ll touch only briefly on the bill and four or five of the amendments adopted by the Social Affairs Committee. In the interest of commitment to the goals of the bill as well as in the interest of timeliness, I’d encourage you to adopt the bill in its present, amended form.

I have two speeches, and in an effort to commit to my own message about timeliness, I have elected to deliver not the long but the short one. I know you will be grateful.

Once this bill kicks in — by which I mean once regulations are developed and the benefits begin to flow to people with disabilities — we will have achieved a great and meaningful thing, something of which all of us in the Senate can be proud. To get there, we need this bill adopted, and we need it adopted in a timely way.

About the bill and the amendments, let me begin by saying that, as in the other place, I believe we are unanimously committed to the sentiments and objectives articulated in Bill C-22. This was evident in the speeches of senators at second reading of the bill and in each of the interventions at the consideration of the bill before the Standing Senate Committee on Social Affairs, Science and Technology. Indeed, I think it is fair to say that each of the amendments advanced at the committee, including the amendments adopted, was motivated by an intention to strengthen the bill and make a good bill better.

As you will know, the bill is a framework bill empowering the minister and the government to develop a disability benefits regime and system by developing regulations under powers provided to it in clause 11 of the bill and in close collaboration with the disability community. Every detail of this bill and the amendments and every word that has been spoken by us about it have been followed closely by a community of interest that is devoted to its adoption. For many thousands, this bill’s implementation is a lifeline to a better life. I think we are all committed to that goal as well.

Nevertheless, various amendments that we are making to the bill do present challenges. I would like to highlight some of them. Some of these challenges, I think, present difficulty for some among us. You may recall that the vote to adopt the report from the committee was a vote on division. Nevertheless, I would urge us all to adopt the bill, as amended, and to get it to the other place as quickly as possible.

Moving to specific provisions, I will first discuss the “coming into force” provision. If you are following, this is clause 14. An amendment was adopted at committee to clean up the “coming into force” provision. It previously called for the bill to come into force at a date that is no later than one year after Royal Assent but did not say who could cause it to come into force earlier. This amendment, introduced by Senator Petitclerc, makes it clear that the day of coming into force is to be fixed by the cabinet no later than one year after Royal Assent. There’s no change to the bill itself, but it identifies the “who” who can implement the coming into force.

Second, and associated with the timing, is an amendment that was adopted by the committee that requires that the regulations be put in place within 12 months of the bill coming into force. This is clause 11, a new subclause (1.2). This is an amendment that is well-meaning but, in my view, problematic. While the minister and the government are committed to timely implementation of Bill C-22, and the minister is aiming for this to occur within 12 months, this amendment actually gives the government — that is, if it were to follow the letter and extent of the law available to it — more rather than less time to implement the bill. This is because the amendment adds 12 months onto the up to 12 months before the bill comes into force. I’m confident we will get to implementation long before this and that the amendment will be rendered essentially irrelevant, but it is, to say the least, an unfortunate message to send.

Third, the bill adds, in clause 11, additional considerations required of the minister respecting the amount of the benefit. These are references, first, to the official poverty line — a hard number that was already in the bill — and four others, namely, additional costs associated with living with a disability, challenges faced in relation to earning a living, intersectional needs of disadvantaged individuals and groups, and international human rights obligations.

Again, these are heartfelt, but the concerns are these: First, the language is problematic, as these days we don’t speak about people “living with a disability.”

Second, in the section that calls for taking into consideration the requirement for disadvantaged individuals and groups, I think I know what was intended. While the concept of “disability” is  understood and defined in the legislation, the word “disadvantaged” is open-ended and undefined, and its literal meaning would, I think, take us well outside the objectives of the bill, which are well articulated in the bill and the preamble.

The other dilemma is a technical challenge for the minister. The clause now requires the minister to take these four factors into account in quantifying the benefit. If we want this to be done seriously, the minister can rely on and make reference to and consider the poverty line, which is a quantified number, but the ability to quantify “additional costs associated with disability” — and when one thinks of the wide range of disabilities — to qualify the challenges associated with earning income, again widely disparate, and to quantify intersectional needs are all complicated issues. They need to be better known, understood and studied than they are today. Realistically, for the minister to honestly and seriously take into account the quantitative aspects of these considerations, and to do that in the urgent time frame we all expect, asks for a great deal, maybe the impossible. In any event, the message in the preamble makes reference to all of these factors, and clearly so, even if they do not carry the clout that this amendment assigns to them.

Fourth, an amendment introduces a new clause 10.1. This is an explicit entitlement to appeal. The bill already contemplates, in clause 11, regulations respecting appeals. The argument advanced was that clause 11 was discretionary. This is true, but that is the structure of the regulation-making power across government. Indeed, the determination of the amount of the disability benefit would itself be discretionary if we take the view that the language of regulation making provides such a wide range of discretion. One might then say that, theoretically, cabinet could simply decide not to make regulations establishing the benefit at all. With respect, I think that’s unrealistic. In any event, for a benefit like this, the law provides an appeal process as a matter of natural justice whether stated or not. Again, in my view, this amendment is heartfelt but not needed.

There is one additional concern. The amendment creates two categories of appeal: ineligibility and the amount of the benefit you get or don’t get. I’m advised that there are various other categories of concern that a recipient or applicant may have, and they do not fall neatly into these two categories of “ineligibility” or “disputed amount of benefit.” The problem is that by creating these two categories and only these by legislation, that, by implication, locks out other categories of appeal. If locked out by the legislation, they cannot be unlocked by regulation.

My fifth and last observation in relation to the amendments is next, but first a bit of context. As committee members, witnesses and even some senators noted at second reading of Bill C-22 in the chamber, a major risk in relation to the effectiveness of the benefit is that it may be eroded or clawed back by provinces or by other providers of the benefit — insurers was one example identified — with respect to people who already qualify for a separate benefit and now could become entitled to a Canada disability benefit. My recollection is that Senator Duncan grilled me gently on this point in February.

Let me say at the outset that this is a legitimate and serious concern. There are two sources of this concern. First are the potential actions by provincial and territorial governments to modify the levels of support that they provide to recipients as a result of the recipients’ receiving the Canada disability benefit. The second possibility — I would even accept the word “probability” — is that private insurers would do the same. The committee heard evidence that wide-ranging clawbacks already exist in insurance contracts associated with disability and that this, if not a common practice, is at least common enough to be a genuine concern for people covered by insurance for disability. Speaking for myself, I accept these as valid and serious concerns. No one wants to see insurers be the beneficiaries, even in small part, of the disability benefit.

In light of this, and urged by some witnesses, an amendment was advanced at committee and adopted so that clause 9 of the act now includes the following:

A benefit under this Act

(c.1) cannot be recovered or retained, in whole or in part, under the terms of any contract, insurance plan or similar instrument . . . .

I appreciate entirely the sentiment of this amendment, but there are two concerns. One is that the language is offered. You will recall the language says that the benefit “cannot be recovered or retained.” Well, insurance companies will never directly receive the disability benefit or be entitled to it so that there will be nothing for them to have retained or to recover.

Second, with respect to this amendment, as heartfelt as it is — and I agree with the sentiment of it — it is an unconstitutional intrusion into provincial authority.

The arguments advanced by witnesses at clause-by-clause consideration suggested that the amendment is constitutional on the basis of the federal spending power or Canada’s commitment under the UN Convention On The Rights Of Persons With Disabilities. These arguments inaccurately presented the scope of federal authority and embed in the bill an unconstitutional and intergovernmentally problematic and divisive component to the bill.

Nevertheless, there is a small window to get this bill across the finish line here and in the other place. I urge you, even if you have reservations about the bill, to give it your blessing.

I would be remiss if I did not extend my own thanks again to the many people with disabilities, leaders of the disability organizations and so many others of goodwill who reached out to me; to our critic, Senator Seidman; to members of the committee, and to each of us, with their advice, concerns and universal support for this bill’s objectives, and also an extension of thanks to the committee for its diligent consideration of this bill.

We are doing a meaningful thing today by supporting and advancing this bill. I’m honoured to be part of this great enterprise.

Thank you, hiy hiy.

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