Senator Pate: To my knowledge — and certainly according to our review of the testimony — no insurance company has indicated that they would plan to claw back the benefit. No province has indicated that they would not support protecting the benefit.

Senator Pate: Many people with disabilities and organizations have reached out to us with concerns that these negotiations will not be completed within the tight time frames established by the bill. I’m curious if there is any information you can provide around the schedule, including the schedule for negotiations with insurance companies.

Hon. Kim Pate: Honourable senators, Minister Qualtrough rightly called Bill C-22 a once-in-a-lifetime opportunity to lift people with disabilities out of poverty. Despite this tremendous step forward, the message from the other place risks turning this bill into an empty promise for Canadians who rely upon long-term disability insurance.

Our Senate amendment prohibiting clawbacks of the Canada disability benefit by private insurers would have protected the collective investments of Canadians in the well-being of the most marginalized from being diverted into the coffers of insurance companies. Our amendment put Canadians on the side of persons with disabilities, not wealthy corporations. The rejection of this amendment should leave us questioning: In whose interests did the government act?

Would insurance companies actually dare take the money belonging to persons with disabilities that they rely upon for necessities like food and shelter? The answer is “yes,” as acknowledged by both Minister Qualtrough and our Senate sponsor.

Almost all group disability insurance policies and many individual policies allow insurers to deduct payments that the insured receives under any government-sponsored plan, as Senator McPhedran has just pointed out. Just one example that should be an affront to all of us is the clawback — again, about which Senator McPhedran spoke — by insurers of Canada Pension Plan, or CPP, payments from persons with disabilities, including the CPPD dependent portion earmarked for children of those with disabilities.

Disability advocates have worked diligently to expose this issue. Imagine the advances toward eradicating child poverty if this money actually reached persons with disabilities.

We have heard from some of the millions of Canadians to whom these types of policies apply. One working-class man wrote thanking us and urging us to persist. He has a hereditary degenerative condition that appeared later in life and incapacitated him. He was forced to leave his job. He needs the Canada disability benefit and should qualify for it, but he may not receive an extra cent because of clawbacks. Without the Senate amendment, every penny of this man’s Canada disability benefit might be stripped from him and pocketed by a wealthy corporation.

Yesterday, his daughter underwent tests to identify whether she has inherited his condition and the same fate.

People may be even worse off if the Canada disability benefit application process is inaccessible. Insurance companies can actually reduce insurance payments if people are eligible for a benefit, even if they don’t apply for it.

How on earth can we support these kinds of windfalls for insurance companies? Do we really want to increase the profit margin of companies while leaving some people with disabilities even worse off than they would have been before Bill C-22, potentially receiving less from their insurers? Surely, enriching wealthy insurance companies on the backs of people with disabilities and at the taxpayers’ expense is not what the government intended. Why then has it rejected our Senate amendment aimed at preventing that travesty?

The government says it is concerned about infringing upon provincial and territorial constitutional jurisdiction. They propose to negotiate with each province and territory to change their respective insurance statutes, wait for these legislative changes to happen and then negotiate individually with a large number of insurance companies not covered by these statutes. That is in addition to the already significant negotiations planned with each province and territory to prevent clawbacks relating to all provincial and territorial government benefits.

We should all be concerned that there is no realistic way to accomplish this within the tight timelines for the rollout of the benefit. Furthermore, countless practising experts have provided compelling evidence that the Senate amendment is indeed constitutional.

Rather than repeat the argument that Senator McPhedran has already ably outlined, I will add two points.

My first point is that, like Senator McPhedran, I have consulted with constitutional experts who have framed an arguable case in favour of constitutionality on the grounds of the “necessary incidental,” or “ancillary,” doctrine. This doctrine allows a provision situated within a larger legislative scheme to be pulled into validity if two conditions are met. The first condition is that the larger legislative scheme must be valid federal jurisdiction. I don’t believe anyone has questioned the validity of Bill C-22. It is an exercise of the federal spending power and perhaps federal powers relating to peace, order and good governance. The second condition is that even if the prohibition on private insurance clawbacks might be invalid if considered in isolation, it can still be valid if it has a necessary relationship to the larger scheme. Here, absent the Senate amendment, the benefit risks becoming a government subsidy for private insurance companies, with no impact or, worse yet, negative impacts, such as the loss of additional provincial benefits like drug coverage, et cetera, upon many disabled recipients.

If that is not necessary to the Bill C-22 scheme, I can’t imagine what is.

My second point is that, as you might remember, the Senate amended a government bill on solitary confinement based on testimony from legal experts that the legislation was unconstitutional. That vote passed four years ago today, in fact. The government rejected the Senate amendments, and the previous Government Representative in the Senate explained to this chamber:

. . . Neither I nor anyone else in this chamber can substitute our conclusions for that of the justices who may be called upon to evaluate . . . provision at some point in the future . . . .

If there’s one thing we know, it’s that constitutional law is arguable, particularly in the abstract. . . .

. . . the appropriate forum to resolve the issues with finality is the judicial branch. This is uniquely an environment where each litigant has a guaranteed procedural right to make a full case with the benefit of an exhaustive evidentiary record before an impartial decision maker.

I question why the government is not following that advice this time around. I hope it is not simply that the constitutional question concerns a Senate amendment rather than government legislation.

There is a reasonable case in favour of the amendment’s constitutionality. Knowing that the bill without the amendment amounts to an empty promise to a significant number of persons with disabilities, why doesn’t the government accept the amendment and then see whether insurance companies have the gall to challenge its constitutionality in court?

Four years after the government stated that the courts were the appropriate forum for dealing with constitutional concerns about its solitary confinement legislation, the barriers that people with the least political, legal and economic capital face when trying to defend their rights have thus far precluded a meaningful court challenge. Imagine trying to find legal assistance and mount a complex court case from a jail cell, while on the streets, while in pain or while figuring out how to keep yourself and your family fed and sheltered.

On top of that, the federal government might throw additional barriers to litigation in the way. For the solitary confinement legislation, the government had cases pending before the Supreme Court of Canada that would have given the court an opportunity to rule on its constitutionality. Instead, the government discontinued the appeals. Those seeking to challenge the bill now have to start from square one, which means several costly, personally draining and time-consuming hearings and appeals before they can hope to once again put this matter before the Supreme Court of Canada.

With Bill C-22, the Government Representative has flipped the script, but the bill similarly favours those with the deepest pockets. This leaves marginalized and impoverished persons with disabilities with the unfair burden of going to court to seek the supports that the government has undertaken to provide. Why exactly is the government choosing to stand in the way — again — of the most disadvantaged?

To grasp what the government’s decision means very concretely, we need only look to a disability rights case litigated by Vince Calderhead, an internationally recognized human rights litigator. During his testimony on Bill C-22 at the Social Affairs Committee, he described a case that commenced 11 years ago. It took a decade of court challenges for judges to determine that the Nova Scotia government had discriminated against his disabled clients, two of whom suffered irreparably and died, so they will never benefit from the legal win. Without our Senate clawback amendment, how many years will persons with disabilities have to wait to bring a similar challenge? How long will they endure poverty? How many will die in the interim?

Here is the question: If someone must bear the burden of challenging government legislation, should it be a private insurance company with deep pockets and ample legal resources, or should it be an individual with a disability, who’s sufficiently impoverished to be eligible for the Canada disability benefit yet unable to benefit from it? This is an urgent issue affecting real people — people with disabilities living in poverty — and not merely an abstract legal conundrum.

Do we want to clear the way for insurance companies to profit off the Canada disability benefit, or do we want to throw a lifeline to those abandoned to poverty who are facing seemingly insurmountable odds in claiming their Charter-protected equality rights?

I do not say this lightly: I am painfully aware of how urgently persons with disabilities struggling in poverty need relief. The Canada disability benefit, if done right, should ensure that they have the necessities, including food, shelter, medical products and care, that breathe life into the human rights — in particular, section 15 of the Charter regarding equality rights, and section 7 of the Charter regarding the right to life, liberty and security of the person — that Canada guarantees to all of us.

Minister Qualtrough acknowledged that current inequalities exist because our systems, laws, policies and programs were not designed with or for people living with disabilities. When we were debating medical assistance in dying, or MAID, we saw that suffering is often not inherent to having a disability but, rather, created by systemic exclusion and poverty. When MAID was expanded, the government promised to be vigilant in ensuring that no one was forced to choose death because they had not been provided with the supports they needed to live without suffering. The government has not lived up to that promise yet. As recently underscored by Ontario MPP Sarah Jama, people with disabilities from her community are applying for MAID because they cannot afford food.

Having lived and worked with persons with disabilities, I know about the formidable burden that disability communities are prepared to take on in order to hold the government to account, as well as how wrong it is to off-load onto them yet another fight for the Charter rights and human rights that most of us take for granted. Many of us are now extremely worried that some of the most marginalized persons with disabilities in Canada will spend years trying to fix our mistake.

What do we want the legacy of the Senate’s work on Bill C-22 to be? Persons with disabilities are contacting us daily, urging us to be brave and do what is right. These words, incidentally, were echoed last week by the Chief Justice of the Supreme Court of Canada at a swearing-in for new lawyers, including several who previously worked in our office on this very issue. Chief Justice Wagner reminded us to be brave and courageous, and to stand up for what is right when others will not — words by which to live and legislate, dear colleagues.

Chi-meegwetch. Thank you.

Hon. Wanda Thomas Bernard: Senator Pate, in the other place the government has taken the position that if the Senate amendment prohibiting insurance clawbacks was included in Bill C-22, and challenged in court, this would:

. . . create significant uncertainty and could impact the regulatory process, which could in turn impact benefit delivery. This could very well delay benefit payments.

This type of court challenge might create some uncertainty about whether insurers can claw back the benefit, but it’s difficult to see how it would create uncertainty about the issues that the government would need to determine in order to proceed with regulations and with paying out the benefit, such as who is entitled to the benefit, the amount of the benefit and the application process.

Senator Pate, do you have any reason to believe that benefit payments would be delayed in the event of a court challenge to the Senate’s private insurance amendment?