Hon. Brent Cotter: Honourable senators, I rise to speak to the message on Bill C-22. We are on the verge of a great achievement for tens of thousands of Canadians with disabilities. We’ve reached this point through the leadership of Minister Qualtrough; the determined work of people with disabilities and advocates for disabled people across this country; and the commitment of every member of the other place, every member of the Social Affairs Committee and every member in this Senate. Senators’ remarks today reinforce this.

I urge you to accept the message without modification so that this bill can receive Royal Assent.

First, I want to say, by way of context, that in these remarks, I’ll speak only to the part of the message that deleted the Senate amendment related to the prohibition of clawbacks in insurance contracts — I will call this the “no clawbacks” amendment. The other amendments, in my view, are great. This one would be too if it were constitutional, and that’s the point about which I will speak.

We heard from many witnesses and senators about the valid and serious concerns regarding the potential clawbacks of insurance benefits. I agree that all of these are legitimate and valid concerns, and I share them all. Unfortunately, for reasons I will explain, this is something that, as a federal Parliament, we cannot address through legislation. If it were an arguable case, I would be in favour of it.

The purpose of these remarks is to give you some comfort that we are doing the right thing by accepting — in its present form — the message that’s come to us. In that regard, I note and applaud the statements of senators who strongly support the “no clawbacks” provision, but who have also indicated that they will, nevertheless, vote in support of the bill in the form before us.

You have heard arguments in committee and in this chamber about why we can do this. I’m going to take this time to explain why we cannot — not just as a competing opinion, but also to express a certainty that this provision is, regrettably, an unconstitutional intrusion into provincial jurisdiction.

I will now talk about the Constitution of Canada, and I apologize for this sounding like a lecture. Though the clause is small, the point is significant.

We know that the Constitution is the supreme law of Canada. We are empowered by it and, in some ways, constrained by it. One of those constraints is federalism. As you know well, in Canada, legislative authority is divided into two categories: federal authority, or heads of power, nearly all of which are enumerated in section 91 of the Constitution Act, 1867; and provincial authority, or heads of power, in section 92 of the Constitution Act, 1867. The key provincial one relevant to our discussion is property and civil rights within the province, which is universally understood to include the regulation of contracts in the province, and, parenthetically, virtually every aspect of the insurance sector has been ruled by our highest court to be of provincial jurisdiction.

We don’t think very much about this next point: Everything we do in the Parliament of Canada has to be located in one area or other of federal jurisdiction. If it’s a matter related to section 91, Ottawa has free rein to regulate. If it is a matter related to section 92, the provinces rule.

Let me provide two examples of section 91 authority that you know well, one being banks and banking. In this head of power, Ottawa gets to set the rules. This includes regulating contracts under this power — contracts concerning banks, minimum wages, employment standards for bank employees under the banking power.

Another is criminal law. If something is genuinely criminal, Ottawa can prohibit it, including contracts. Just this week we will do this by making loans above a certain rate of interest — contracts to provide loans — a crime, again, under the criminal law power.

Next, the spending power: There is a federal spending power. The spending power is not listed in section 91. It is based on the idea that Ottawa has property — in this case money — and can do with it as it pleases. This is true within limits I will explain. It is a powerful but limited federal authority.

All are agreed with respect to this legislation that it resides within the federal spending power, and only within the federal spending power. The question we are facing is whether the “no clawbacks” provision is a constitutional use in the exercise of the spending power.

I should just say parenthetically that despite Senator Pate’s observation about ancillary provisions, ancillary powers do not apply to the spending power — and for obvious reasons I will get to.

At committee and in this chamber, three arguments were advanced to justify the constitutionality of the “no clawbacks” clause. Each of these is 100% incorrect. The first was the reference to the Merchant Seamen Compensation Act. This federal statute has a similar “no clawbacks” provision, which has never been constitutionally challenged, but the reason the Merchant Seamen Compensation Act provision has not been challenged is it’s not an exercise of Ottawa’s spending power. Indeed, it has nothing do with the spending power at all. It is an exercise of Ottawa’s section 91 head of power over navigation and shipping, a section 91 power specifically. You only have to read a little bit of this bill to discover this. And just like banking has a specific head of power given to Ottawa, Ottawa can regulate entirely in that area, including, just like banking, it can regulate contracts.

The second argument to the effect that Ottawa can regulate contracts was the Supreme Court of Canada decision regarding the constitutionality of the Genetic Non-Discrimination Act, which dealt with contracts and was upheld by the Supreme Court of Canada. But when you read this case, you discover that what Ottawa did in this context — for example, with respect to the example Senator McPhedran identified, requiring employees to take genetic testing — is that Ottawa invalidated those contracts by making them a crime. And if it is legitimately a crime, Ottawa has the power to regulate — that is, prohibit — contracts under the criminal law power.

Indeed, but for the finding that Ottawa was exercising its criminal law power in those cases, the provisions would have been profoundly unconstitutional interferences with property and civil rights.

Furthermore — and this is important — just because Ottawa can regulate or prohibit contracts in one specific area does not make that authority transferable to another area and, in particular, not transferable to the spending power, and there are very good reasons, sadly, for that.

The third spending-power argument was a quote from a distinguished, now deceased, professor Peter Hogg, the dean of constitutional law in Canada. This is what the quote said, speaking about the spending power:

. . . 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 . . . .

Now, Professor Hogg had a bit more to say about the spending power, and the sentences that follow that quote explain what the limits of the spending power are.

Professor Hogg said:

There is a distinction, in my view, between compulsory regulation —

— think here the “no clawbacks” provision —

— which can obviously only be accomplished by legislation enacted within the limits of legislative power, and spending or loaning or contracting, which either imposes no obligations on the recipient . . . . There is no compelling reason to confine spending or lending or contracting within the limits of legislative power —

— meaning Ottawa can go where it wants with its spending, and it does, as you know —

— because in those functions the government is not purporting to exercise any peculiarly legislative authority over its subjects.

That is, people can take the money or not. There is no legislative power engaged.

What this means is that in spending its money, Ottawa can spend in areas of provincial jurisdiction and can impose any conditions it likes on the recipient of the money, but it cannot use its legislative power to impose obligations on anyone else, obligations that are in provincial jurisdiction. To be sure of this, I read every case Professor Hogg cited, and all of them confirm this.

The bottom line is that Ottawa can attach conditions to the receipt of money by the recipient but it can’t go beyond that. Think of it like a pipeline down which money can flow. Ottawa can attach terms and conditions to the flow of that money. If the terms are not met, it can cut off the flow or it can require money to flow back, but it can’t legislate outside the walls of the pipeline.

Let me suggest for you an example of the most significant use of the spending power in this country and a compelling example of its limits: funding to support health care. Ottawa transfers billions of dollars to the provinces to support the delivery of medicare under provincial jurisdiction. It does this in the exercise of the spending power and it attaches conditions to the transfer of the money. You know it well, particularly the five principles of the Canada Health Act.

One of the most obvious concerns is that Ottawa does not want doctors to extra-bill patients for insured services under medicare. You’ve heard this a million times. If, as is argued, the spending power is essentially unlimited, the most obvious way to achieve this would be for Ottawa to transfer the money and then simply legislate that doctors can’t extra-bill. I hope you can see the parallel.

But Ottawa does not do this. A condition of the health transfer is that doctors aren’t allowed to extra-bill, but that obligation is imposed by the provinces. The prohibition against extra billing in every province in this country is done by provincial legislation not because Ottawa wouldn’t want to do it — by God, they would — but because, constitutionally, they can’t. And it’s the same with the “no clawbacks” provision: It would be great to do it, but we can’t. Just because it’s a very good idea, doesn’t make it constitutional. Section 91 does not have a head of power called “good ideas.”

Now, this is a small provision, but constitutionally the overall issue is enormous, quite frankly. If Ottawa can, through the use of the spending power, wade into provincial jurisdiction whenever and wherever it wants to spend money, as the proponents of this provision would have it, it would actually be destructive of federalism.

Senator Plett spoke a while ago about the attention we need to pay to regional interests. I would invite you to focus for a moment on provincial interests and our duty to be respectful of provincial jurisdiction on which those interests rest.

There is likely to be litigation if this clause were implemented, and here is an awkward, tragic dilemma: The provinces, even sympathetic to the intentions of this clause, would have to join with insurance companies to avoid an unprecedented expansion of spending power into provincial jurisdiction.

Whether we like it or not — and I don’t — the “no clawbacks” clause has within it the seeds of an almighty constitutional fight which Ottawa would assuredly lose, to say nothing of the way in which it would poison federal-provincial relations just at a time when federal-provincial cooperation in the delivery of this benefit is at its most crucial.

Some have suggested that declining to include the “no clawbacks” provision by the government and 314 members of Parliament — twice — is being done in deference to the insurance industry. I would invite you to think of it in a different way. It’s actually an expression of respect for the provincial jurisdiction at play here and a statement that honours the provinces and signals a desire to work with them rather than against their interests.

Indeed, this approach increases the possibility mentioned here earlier that provinces will exercise their own jurisdiction to protect this benefit by disallowing insurance clawbacks and it increases the prospect of working out protocols with industry whereby the disability benefit will not result in clawbacks.

I’m not happy with that outcome. I am as concerned as anyone about the stories that both you and I have heard, but there are limits to what we can do. Indeed, we have an obligation to respect those limits whether we like it or not.

I hope and trust that this will give you some degree of comfort that, in adopting the message as received, we are doing the right thing as we now have the opportunity to launch this bill and its great benefits for our most deserving citizens.

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?

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. 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. Marilou McPhedran: Honourable senators, hello, tansi.

As a senator from Manitoba, I acknowledge that I live on Treaty 1 territory, the traditional lands of the Anishinaabe, Cree, Oji-Cree, Dakota, and Dene, and the homeland of the Métis Nation.

I also want to acknowledge that the Parliament of Canada is situated on unceded and unsurrendered Algonquin Anishinaabe territory.

[English]

Honourable senators, I rise today to speak to Bill C-22, the Canada disability benefit act, with appreciation to Minister Qualtrough and Senator Cotter, the bill’s sponsor here, for best efforts to shepherd it through the legislative process culminating in our review today.

Many parliamentarians understand how crucial this bill is. It is long overdue and deserves support for the millions of people with disabilities across Canada who live in poverty.

We can be proud of the thorough and thoughtful contributions made by members of the Standing Senate Committee on Social Affairs, Science and Technology, or SOCI, and of the trust placed in us by colleagues in this chamber in their support for these amendments, which result in a stronger Bill C-22 returning to us today with all but one of our six amendments incorporated.

The accepted amendments include an appeal mechanism by which applicants can contest decisions about their eligibility to receive the benefit and the amounts to which they are entitled. Also adopted was the expanded list of factors that must be considered in the benefit calculation, among which are Canada’s poverty line, the costs created by systemic barriers to accessing work, the intersectional needs of applicants and Canada’s human rights obligations as they relate to the disability community.

The final amendments accepted are those that provide for an expedited implementation timeline for the benefit by requiring that all the regulations must begin to pay out under the act and be in place within 12 months of the new act’s coming into force date. These changes bolster this framework act by ensuring crucial implementation mechanisms rather than risking them to the uncertainty of regulations yet to be drafted.

One amendment has been rejected. I doubt Senator Gold intended to ghost me, but it was proposed by me on behalf of disability rights experts and organizations. Proposed for clause 9(c) of the bill, this amendment would have protected recipients of the Canada disability benefit act by preventing private insurance companies from deducting the amount of the benefit paid out under the act from payments made under long‑term disability policies.

These clawbacks by private insurance providers were not discussed in committee in the other place, but they were studied extensively when Bill C-22 was examined by the Senate’s Social Affairs Committee. The amendment to stop rich insurance companies from clawing back the benefit from poor people with disabilities was endorsed by over 40 legal aid clinics, community leaders, academics and disability advocacy groups. On the question of its constitutionality, every provincial trial lawyers’ association in Canada supported the amendment as viable in law.

Therefore, we have before us a bill that enables private insurance companies to claw back the new, publicly funded disability benefit regardless of whether Minister Qualtrough calls it a social benefit or not.

Many private insurance contracts are clear that they can set-off any government benefit, effectively subsidizing private insurers instead of providing additional financial support for members of the disability community as intended by the act.

Colleagues, concerns about industry clawbacks are not far-fetched or hypothetical. Clawbacks are happening now to available public benefits. Old Age Security benefits, for example, are already explicitly set-off from long-term disability payments by many private insurance companies while similar deductions have been made from insurance payouts to recipients of the dependent benefit under the Canada Pension Plan, or CPP.

Further, the courts have sided with private insurers. For example, in a 2008 class action, the court affirmed the legality of deductions from long-term disability payments of this nature absent any provision in either the policy or in the legislation prohibiting it, and private insurers leaped to enforce those deductions through litigation against disabled recipients.

For example, in a case involving the State Farm Mutual Automobile Insurance Company, the appellant’s insurance company sought to enforce the deductibility of the CPP dependent benefit on the basis of the 2008 class action ruling. And in Industrial Alliance Insurance and Financial Services Inc. v. Brine, the private insurer sought to enforce deductions from a long-term insurance policy in the amount of benefits received by the policyholder under both the Canada Pension Plan and the Public Service Pension Plan.

Time does not allow me to list the many other cases wherein private insurers went to court to claw back payouts under long‑term disability policies premised on the policyholder’s receipt of public benefits. The rejected amendment prohibiting clawbacks of the new benefit by private insurers would have done what the courts have said needed to be done in order to protect recipients and ensure that benefits are received by those for whom they are intended rather than function to subsidize private insurers.

The time to respond to this concern is sooner rather than later. When the CPP dependent benefit offset was challenged in 2008, industry relied on the fact that its premiums were adjusted on the assumption that it could offset CPP benefits but held that without the availability of that offset, insurance premiums would undoubtedly rise. No such adjustment can presently be relied on by industry in relation to the Canada disability benefit, as premiums taking the new benefit into account have yet to be calculated.

Concerns were raised at the Social Affairs Committee and in this place as to the constitutionality of a provision that engages with the insurance industry by purporting to regulate insurance contracting as falling outside the jurisdiction of the federal parliament. The fact is that such a provision is not unprecedented in Canadian benefit regimes. For forty years, the Merchant Seaman Compensation Act, for example, has protected recipients with wording closely similar to that proposed in the rejected amendment. Forty years, honourable senators, with no court challenges, constitutional or otherwise.

Another relevant precedent can be found in the 2020 reference regarding the Genetic Non-Discrimination Act, which grappled with the constitutionality of a federal legislative scheme to regulate aspects of insurance contracting by preventing private insurers from requiring genetic test results as a precondition for health insurance eligibility. In reviewing the legislative scheme, the court determined that its overall goal was not regulation of the insurance industry per se, but rather the prevention of genetic discrimination in the provision of goods and services such that the insurance provisions at issue comprised only part of a broader regulatory scheme and were necessary in order to preserve the purpose of the federal legislation. Sound familiar?

Absent the act’s protective insurance-related measures, the scheme’s purpose would be seriously undermined, justifying the minor incursion into a matter traditionally falling within the ambit of provincial jurisdiction.

These real-life cases support the viability of a provision like the rejected amendment prohibiting set-offs by private insurers of payments under the Canada disability benefit act. It is clear in the act that the Canada disability benefit is designed to be supplementary for those who qualify under the act.

The legislative purpose of making a supplementary sum available to eligible recipients is undermined if private insurers are permitted to correspondingly claw back payments under their policies because, in practice, the recipient is left with substantially the same amount they were receiving before introduction of the benefit. Absent this simple operational protection, the bill before us today will effectively indemnify private insurers and deny the intended recipients the benefit.

Lifting disabled people out of poverty is the stated fundamental purpose of this bill. In this regard, it will become a mockery of Minister Qualtrough’s promise to disabled people, who desperately need and deserve the Canada disability benefit. The exclusion of this amendment to prohibit benefit clawbacks by private insurers is a choice the Trudeau government has made: to not ensure that certain eligible recipients under the act receive the full supplemental benefit promised to them.

Time will tell how many private insurers will exploit this loophole given to them, and perhaps some day Parliament will have a second chance to bring justice to those disabled recipients who are now exposed to the legal force of rich private insurers.

But let’s not pretend that the real cost will be borne by poor, disabled recipients who would be made to suffer because this government chose not to protect them. They will suffer, and the cost will be borne by them.

Last week, Senator Pate and I received a letter from Mr. Duncan Young, whose standard of living is determined largely by a private insurer. I share the following with his permission:

I am not one of the many selfless volunteers who advocate on behalf of the disabled. Neither am I an activist or lobbyist for any such person or group. I am simply an “average” 55 year-old working-class Canadian, who happens to love his job, and is looking forward to working at it for as long as he can. Or at least I was...

3 years ago, I received a diagnosis of spinocerebellar ataxia 3 (SCA3): an extremely rare, hereditary, neurological disorder that causes the cerebellum to atrophy, thus completely destroying a person’s motor skills; impairing walking, talking, swallowing, bladder control, etc.

It is progressive, has no known treatment(s) to abate its development-and there is no cure. Of note, an affected person typically does not present symptoms until somewhere between ages 40-55: Meaning I (and most like me) are enjoying a full life, still in its ascendency, when suddenly your brain will not allow your legs to form the motion necessary to let you run to catch the bus, or let your fingertips stay still long enough to do up the tiny buttons on your button-down collar.

Let me be clear: Without that amendment enshrined in statute, as worded, I will receive $0 from the creation of the benefit. It would be-in its entirety-an eligible clawback according to my LTD provider’s contract. In short, the only beneficiary of such a benefit would be the shareholders of a publicly-traded insurance company-while I continue to slip below the poverty line. Both points here are not conjecture: They are quantitative facts.

So now you know exactly, unquestionably and with detail, exactly what the passing of C-22 without this amendment will mean to myself and every disabled person in similar positions: Nothing.

I’m so sorry, Mr. Young, but at this stage we must hope that Minister Qualtrough and this government can somehow turn this around by actively convincing provinces and territories to ban private insurance clawbacks of the Canada disability benefit within their respective jurisdictional authority. Such advocacy should not be left, again, to the disability community to take on alone.

Honourable senators, we all know this disability benefit is long overdue and desperately needed. The disability community in Canada has advocated for stronger and more reliable income support for far longer than this bill has been in contemplation by Parliament.

I am grateful for the many insightful comments and valuable contributions to the development of this bill from community leaders and advocates, both in committee and various other capacities. Mindful of time, I can acknowledge only a few. I extend appreciation for the legal expertise provided to the Social Affairs Committee by witnesses who brought the clawback to our attention: David Lepofsky, Robert Lattanzio, Steven Muller and Hart Schwartz. For the sake of those eligible recipients who are unlikely to ever see a penny of the Canada disability benefit, I fervently hope that those experts will continue to be vital contributors to the minister’s promised consultations to fill in the framework legislation.

Let us now pass this bill into law before we leave for the summer. Thank you, meegwetch.

Hon. Chantal Petitclerc: Honourable senators, we have heard all that needed to be said about Bill C-22, and so I will be brief. However, I really wanted to rise to speak today.

[English]

Allow me first to thank Senator Cotter for his work as sponsor of this bill in the Senate and, Senator Cotter, for your commitment in the Senate and outside Parliament to persons living with disabilities.

Colleagues, to this day, I remember the enthusiasm in the disability community when, in September 2020, the Canada disability benefit was announced in the Speech from the Throne. We knew then that the goal would be to reduce poverty and that it would be modelled after the Guaranteed Income Supplement for seniors, but we knew nothing about the amount of this future benefit, let alone the eligibility conditions.

Nearly three years later, we still are in the dark about who will be eligible or how much they will receive. However, it must be recognized that the enthusiasm and hope noted in 2020 are still strong and palpable. What I’m hearing is that the community is reassured by the guarantees provided by the amendments made in the House and here in the Senate.

[Translation]

Allow me to acknowledge once again the exceptional work of my colleagues on the Standing Senate Committee on Social Affairs, Science and Technology, who felt that these amendments, which were just today accepted by the House in response to our message, were necessary.

I especially want to thank all the organizations who inspired and motivated us to improve this bill through their briefs, testimony and correspondence.

All things considered, the work we chose to do improved the bill and will better serve the community.

Thanks to the Senate, the appeal process specifically provides for a procedure to deal with decisions made about eligibility for the benefit and the amount to be received.

Thanks to the Senate, the benefit will have to be based on not just the official poverty line but several other parameters as well, in particular additional costs associated with living with a disability and the intersectional needs of disadvantaged individuals and groups, among others.

Thanks to the Senate, the government now has the power to make the required regulations so that payments can commence within 12 months of the coming into force of the bill.

[English]

It’s true, however, that concerns about clawbacks during the implementation of the proposed benefit, especially by private insurers, have not gone away. The government has acknowledged that these fears are well-founded and has said it is aware of this risk. I am trying to be reassured by the minister’s commitment that she will be vigilant to ensure that the concerns expressed during the study do not turn into a sad reality.

[Translation]

In an email to Quebec senators, organizations in Quebec representing hundreds of thousands of people with disabilities and their families, including the Quebec Intellectual Disability Society, the Fédération québécoise de l’autisme and the Confédération des personnes handicapées du Québec, sent the following message:

All but one of the amendments were adopted, and one was the subject of a subamendment. First of all, we are comfortable with the House’s motion. Of course, we would have preferred to have guarantees in the act concerning insurance and the clawback, but the motion remains satisfactory overall.

Other national organizations, such as the Rick Hansen Foundation, the Canadian National Institute for the Blind, Inclusion Canada and the Disability Without Poverty movement, all sent similar messages and agreed that now is the time, following this legislative step, to move on to the next stage to improve the financial insecurity in which hundreds of thousands of Canadians live. I agree with these organizations.

[English]

I was tempted by way of conclusion to use the analogy that we are just about to cross the finish line with this bill, but I realize that this is not the right analogy because, really, this is not the finish line. With Bill C-22 being a framework law, it is fair to say it is now that the work begins.

A better analogy would be one of a relay race. We gave it our best, and it’s now our turn to confidently pass the baton, not just to the government but especially to the ones with lived experience and expertise and to the organizations that were promised that they would be part of co-creating the regulations. These groups wanted their voices to be heard based on the principle of “nothing about us, without us.” We can count on them, and I have confidence that they will carry out this duty with passion, expertise and rigour.

[Translation]

The real finish line will be reached when the first cheques are sent to the beneficiaries — by 2024 we hope.

I therefore invite you, honourable colleagues, to pass the baton by accepting this response, as we have received it from the House of Commons. Meegwetch. Thank you.

Hon. Rosemary Moodie: Honourable senators, I rise to continue our debate on Bill C-22. I want to thank my colleagues for their comments so far.

Let me state from the outset that I will vote in favour of this message, fully respecting the prerogative of the government and mostly because the disability community has made it clear that they’re satisfied with this bill in its current form.

I want to take a few moments to highlight the important work done by the Standing Senate Committee on Social Affairs, Science and Technology, of which I am a member. Our chair, the Honourable Senator Omidvar, noted clearly in her speech at report stage that our committee heard from 44 witnesses in addition to receiving 48 briefs, seven follow-ups and two letters. I want to add that many of our witnesses were members of the disability community and were given the accommodation needed to fully participate. Many of our witnesses were truly inspiring and went to extraordinary lengths to be with us, to be heard, and I’d like to thank these witnesses for their contributions to our study.

Not only did we study this bill in depth, but many of the committee members met on their own initiative with members of the disabled community for months before the study in anticipation of this bill’s arrival and in acknowledgement of the historic nature and gravity of this bill. Our colleagues on the committee worked diligently and with great insight and understood that our job is to carry the voices and priorities of constituencies, along with the application of our best judgment. That is what we did.

Our colleagues proposed amendments, some of which were rejected, but many were adopted. It was not an easy undertaking. It required the courage to resist the strong internal pressure to simply let this bill pass, to do nothing and let the bill go through without the proposed amendments that we, as a committee, felt were needed based on what we heard from our witnesses, amendments that the government has now, in essence, adopted. You have heard five of six. As Minister Qualtrough put it in her speech in the other place on June 14, “These amendments enhance Bill C-22 in that they add clarity, precision and specificity.”

Bill C-22 is going to impact the lives of millions of people. It will be — putting hyperbole aside — the difference between life and death for many Canadians with disabilities. It will be historic, not just here in Canada but on the world stage. Our contribution of “clarity, precision and specificity” is absolutely critical. In fact, I would argue that this is exactly why our institution exists — to make sure bills are precise, clear and specific for the good of all Canadians, including and especially for those who are vulnerable and who need us to work on their behalf to bring their voices forward.

I want to congratulate our colleagues on the Social Affairs Committee for resisting the pressure to do nothing and for doing what you knew was right despite the often-repeated warning that it would kill the bill. Colleagues, in a few moments we will adopt this bill, and it will become law. It will be a better law because we were unwilling to stand idly by, because we did our job.

Colleagues, we have a privileged and sacred role to play in this place. The Senate has an obligation and a duty to review legislation. Fulfilling our constitutional role must always be front and centre. Sometimes this may mean expediting bills, but I believe, for the most part, it means we must authoritatively, thoughtfully, deliberately and thoroughly consider every bill before us. Senators, that is how we should be, regardless of the pressure we may face to do otherwise.

Bill C-22 proves once more that all Canadians will benefit when we are willing to do what we are summoned to do — to be legislators, to do our part — and this is what I believe Canadians value.

To the thousands of Canadians who continue to email us, urging us to adopt this legislation, continuing to let us know and sharing your concerns — thank you. It is my hope that we have served you well. Like many of you, I was disappointed with the rejection of amendment 2 and believe that the burden to fight to make sure clawbacks do not occur should not be on your backs. Unfortunately, you may still retain that responsibility to ensure that you have full access to this benefit now.

Nevertheless, what I have heard loud and clear is that you are ready to take the next steps to make this benefit what you want it to be. I join with you in calling on the government to put this bill into force on the day it receives Royal Assent and to begin co‑creation of regulations immediately. Should any issues arise, which may happen, you will find many of us here in the Senate of Canada behind you, ready to support you and to see that the full potential of the Canada disability benefit is met.

Thank you. Meegwetch.

[Translation]