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Senate Sends Bill C-22 (Canada Disability Benefit Act) to Standing Committee for hearings – Reflections on the Final Day of Senate’s Second Reading Debate
March 13, 2023
SUMMARY
1. Where is Bill C-22 Now and Where Does It Go Next?
On Thursday, March 9, 2023, the Senate of Canada voted for Bill C-22, the proposed Canada Disability Benefit Act, on Second Reading, after completing its final day of Second Reading Debates. The official “Hansard” transcript of a discussion of Bill C-22 in Question Period on March 9, 2023, and of the final day of Second Reading debate in the Senate, is set out below.
Bill C-22 now goes to the Senate’s Standing Committee on Social Affairs, called “SOCI”. That Committee will hold public hearings. It will then review Bill C-22 clause-by-clause. During clause-by-clause review, the Standing Committee can make amendments to the bill.
It is expected that the public hearings will start next week, and will continue into April. The AODA Alliance is one of the disability organizations that has applied to present at the SOCI public hearings.
Anyone can send their views and recommendations for improvements to the SOCI Committee. We urge you to do so. Everything you need to know, in order to do this, is in the AODA Alliance’s February 14, 2023 Action Kit.
The Trudeau Government wants people with disabilities to ask the Senate to just pass Bill C-22 “as is”, and without any amendments. Please email senators to say that they should strengthen the bill and then pass it. Write soci@sen.parl.gc.ca
2. Reflections on the Final Day of the Senate’s Second Reading Debate on Bill C-22
During the final day of Second Reading debate in the Senate, March 9, 2023, two senators spoke, Senator Marilou McPhedran and Senator Dennis Glen Patterson. Senator McPhedran gave a very compelling speech where she identified many of the serious weaknesses with Bill C-22 that need to be fixed through amendments:
“Briefly, the glaring omissions and shortcomings in this bill include the following: The bill may never lift anyone out of poverty; there is no minimum standard in the benefit; there is no requirement for the regulations — which are core to any positive change — to be done by the time the act is operational; there is no deadline for payments to be dispersed; the benefit disqualifies thousands of disabled people by their age — clearly discriminatory; the bill lacks transparency and therefore it lacks accountability because it puts decision-making processes behind closed doors; the bill makes an ultimatum, not a real choice.”
She politely but bluntly contested the inaccurate claim by the bill’s sponsor in the Senate, Senator Brent Cotter, on the first Day of Second Reading debate, that the vast majority of the disability community simply want the bill passed without any amendments. She responded:
“Perhaps we are speaking to different disability rights experts?”:
She disputed Senator Cotters troubling call for people with disabilities to simply trust Cabinet and the public service to ensure that people with disabilities are lifted out of poverty, retorting:
“I must question the wisdom of such a leap of trust as the rationale for this bill.”
Her thorough critique of the bill and her call for amendments to strengthen it are entirely consistent with the February 16, 2023 Speech by Senator Kim Pate, which accurately concluded:
“As several commentators have pointed out, the framing of the legislation in this way makes the basis of the bill one of charity rather than grounding it in fundamental human rights.”
We agree that people with disabilities, and especially those living in poverty, need and deserve a disability rights bill, not just a charity bill.
In contrast, Senator Dennis Glen Patterson was the only other Senator (apart from the bill’s sponsor Senator Cotter) who side-stepped or did not acknowledge the bill’s serious problems that require amendments to fix. Perhaps most striking about his speech, he applauded the Trudeau Government for making a commitment to the “co-creation” with the disability community of regulations under the bill. Yet the Trudeau Government never actually made that commitment. The senator stated:
“And while I’m often hesitant to leave important public policy decisions to the regulatory process, I believe that the commitment to having the disability community involved in the co-creation of regulations in this situation is the right approach. This commitment is the right approach only if it is done properly. The government has committed to such a process and, I fully expect, will be held to this commitment by the passionate, caring folks in the disability community in this country who have waited so long for progress and recognition.”
The Trudeau Government has agreed to consult with and work with the disability community on the regulations to be established under the bill. However, it never agreed that the disability community would have an equal seat at the decision-making table, where decisions over those regulations are made. The Federal Cabinet is the decision-maker that decides what regulations will be enacted under federal legislation like the Canada Disability Benefit Act. It meets in secret. The Disability community has no seat, much less equal seats, at the Cabinet table.
Disability Without Poverty is one of the leading organizations that has called for the “co-creation” of the regulations with the disability community. In their October 31, 2022 presentation to the House of Commons HUMA Standing Committee, Disability Without Poverty explained that this was what they meant by “co-creating” the regulations, and that they mean something more than the Government merely consulting the disability community:
“We believe that this benefit will be most effectively delivered if the details are co-created with disabled people like us. That collaboration cannot happen in this committee, in the House or the Senate. It can happen only in the development of regulations with disabled people as equals in that process of collaboration.”
Disability Without Poverty later explained:
“The idea of co-creation goes well beyond consultation. Yes, we have been consulted, as people with disabilities, as allies and as supporters for the last couple of years, and for years we’ve been advising and appealing to government to put in more financial supports for people with disabilities. “Co-creation” means we are sitting as equal partners at the table—that people with disabilities from diverse backgrounds, with diverse lived experiences, are involved as equal partners in the spirit of equity around a table with folks from government, with bureaucrats who are going to nail down the regulations, from design and development to implementation.”
On November 14, 2022, during his presentation to the House of Commons HUMA Standing Committee on Bill C-22, AODA Alliance Chair David Lepofsky pointed out the sharp difference between what the Trudeau Government promised and what Disability Without Poverty was calling for, when it comes to co-creation of regulations under the bill:
“On the issue of co-creation, let me just summarize what I understand.
Number one, the group that spoke of that before you was Disability Without Poverty, which is an important voice on disability poverty issues. What they said they mean by it is that people with disabilities will have an equal seat at the decision-making table. In fact, in their presentation on October 31, they said—I’m paraphrasing—it’s more than just consulting and engaging with them.
Now, I don’t propose to speak for them. That would totally not be appropriate. However, I can say this. Nothing in this bill gives people with disabilities any seat in the cabinet room. They are the deciders. Cabinet is the decider. Moreover, we don’t even get in the cabinet room, because they are secret proceedings. The minister, in fairness, has never—at least never in anything that I saw in public debates on the bill in the House or at this committee—committed to co-creation. She committed to engagement and consultation.”
Neither the Trudeau Government nor Disability Without Poverty have disputed the accuracy of what AODA Alliance Chair David Lepofsky told the House of Commons HUMA Committee about this.
At bottom, the senator ultimately wanted to trust the Government and the disability community to work out the details. We respond that no other disadvantaged group would be expected to simply trust that a problem that has festered for years without solution, will somehow be satisfactorily worked out. The three most recent years of Government consultations have only produced a bill that is bereft of so many key details and requirements.
Help get the Senate to strengthen Bill C-22. Check out the AODA Alliance’s Bill C-22 Action Kit. It gives you everything you need!
Would you like to see proof beyond any doubt that the Trudeau Liberals flip flop on whether Bill C-22 needs amendments? Our captioned 7-minute video paints the picture. It has been seen over 3,000 times. Watch it and get others to do the same!
Watch AODA Alliance Chair David Lepofsky’s November 14, 2022 testimony at the House of Commons HUMA Committee to learn what is wrong with Bill C-22 and how to fix it.
MORE DETAILS
Senate of Canada Hansard March 9, 2023 Question Period
Employment and Social Development
Canada Disability Benefit
(Response to question raised by the Honourable Chantal Petitclerc on April 26, 2022)
On June 2, 2022, the Minister of Employment, Workforce Development and Disability Inclusion (EWDDI) introduced Bill C-22, Canada Disability Benefit Act, to establish a new Canada disability benefit. After being studied and amended by Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities, the Bill received all-party support in its third reading on February 2, 2023, before being referred to the Senate where it will be debated and studied.
In the spirit of Nothing Without Us, the government will continue to engage with Canadians with disabilities and other stakeholders to inform the design of the benefit and future regulations. Engagement activities began in summer 2021 with ministerial round tables and an online public survey. Consultations have also taken place throughout 2022, and community-led engagement as well as Indigenous-led engagement through national Indigenous organizations is continuing into winter and spring 2023.
The legislation also recognizes the critical role that provinces and territories play in providing supports and services to Canadians with disabilities and the importance of engaging with them. Federal, Provincial and Territorial Ministers Responsible for Social Services met in July 2021 for an initial discussion on the proposed new benefit and discussions with provincial and territorial governments have been ongoing since, including bilateral meetings between the Minister of EWDDI and provincial/territorial counterparts.
Senate of Canada March 9, 2023 Second Reading Debate on Bill C-22, the Canada Disability Benefit Act
Canada Disability Benefit Bill
Bill to Amend—Second Reading
On the Order:
Resuming debate on the motion of the Honourable Senator Cotter, seconded by the Honourable Senator Woo, for the second 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.
Hon. Marilou McPhedran: Honourable senators, thank you for the courtesy of allowing me to adjourn for the balance of my time on Tuesday evening.
In continuing, with great appreciation of his acumen as a sponsor, I wish to address briefly two assertions made by Senator Cotter in his speech.
First, he stated that:
. a vast majority of the disability community — I have counted — is comfortable with the structure of the bill before us and strongly supports its passage in its present form.
Perhaps we are speaking to different disability rights experts?
Second, Senator Cotter encouraged trust in the cabinet process and trust in Minister Qualtrough to deliver far more than is required or even mentioned in this bill.
As much as I respect Senator Cotter and Minister Qualtrough and know that they speak from their lived experiences with disability and deep commitment as champions to better the lives of people with disability, I must question the wisdom of such a leap of trust as the rationale for this bill.
The disability rights experts with whom I have consulted understand that a perfect bill, or a perfect benefit, cannot be achieved this time around. They all agree that this initiative by Minister Qualtrough must be seen through, with the best possible version of this bill finalized and enacted in this session of Parliament, and this bill must not die.
But their political pragmatism — born of necessity — does not excuse us from our duty to give this bill our full consideration and to make achievable critical improvements.
Yes, this is a framework bill. But it’s not a rights-based framework as much as it is aspirational.
Briefly, the glaring omissions and shortcomings in this bill include the following: The bill may never lift anyone out of poverty; there is no minimum standard in the benefit; there is no requirement for the regulations — which are core to any positive change — to be done by the time the act is operational; there is no deadline for payments to be dispersed; the benefit disqualifies thousands of disabled people by their age — clearly discriminatory; the bill lacks transparency and therefore it lacks accountability because it puts decision-making processes behind closed doors; the bill makes an ultimatum, not a real choice.
Given the stakes at hand, it is troubling that this bill does not build more on Canada’s international human rights commitments, principally Article 28 in the Convention on the Rights of Persons with Disabilities, addressing, “Adequate standard of living and social protection.”
Strengthening this bill from a rights-based approach will yield a stronger legislative framework, and, as we saw in the other place, this can be done without stalling the legislative process if the government wills it so.
Dr. Nancy Hansen, Director of the Interdisciplinary Master’s Program in Disability Studies at the University of Manitoba, summarized this approach as a:
. . . charity ethic to support disabled Canadians . . . an overarching colonial aspect of service provision for disabled people . . . that maintains people in marginalized positions. It is residual legislation. It’s better than nothing, but a “once in a generation” fix should be done better than this.
Similarly, Senator Seidman, in her excellent analysis of the bill, raised important questions of moral and ethical compulsion versus mere legal obligation to persons with disabilities.
As noted in the Convention on the Rights of Persons with Disabilities, people with disabilities who also identify as members of minority groups are subject to “multiple or aggravated forms of discrimination.”
There are numerous relevant human rights commitments which Canada has made that should influence our review, but I will list just two more. First, the UN Universal Declaration of Human Rights, Article 25.1, states, “Everyone has the right to a standard of living adequate for the health and well-being . . . .” Second, in the UN Sustainable Development Goals, Goal 10 is to “reduce inequality within and among countries.” Under that goal, target 10.2 is:
By 2030, empower and promote the social, economic and political inclusion of all, irrespective of age, sex, disability, race, ethnicity, origin, religion or economic or other status. Entrenched within the Canadian Constitution, the Canadian Charter of Rights and Freedoms unequivocally underlines the concept of substantive equality, to which I note direct reference is made in the preamble to Bill C-22.
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In R. v. Kapp, the Supreme Court reiterated that this concept of substantive equality is grounded in the idea that:
“The promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration” . . .
There is an additional sense of urgency in protecting the fundamental human rights of persons with disabilities in this bill. Applications and requests for MAID as a response to struggles with poverty increase. Bill C-22 does not guarantee that any persons with disabilities will be brought out of poverty. It does not guarantee that any dollar amount will be dispersed in a timely manner, and put bluntly, it doesn’t guarantee the existence of the Canada disability benefit at all.
Life-reducing poverty among persons with disabilities has always been with us, but there is now an additional sense of urgency. Since March 2021, Canada has expanded MAID to be available to people who are not at the end of life to die due to their disability-related suffering and who meet other eligibility criteria. Widespread social and economic deprivation has created conditions in which dying appears to be the only answer for some persons with disabilities to escape poverty.
The Parliamentary Secretary to the Minister of Employment, Workforce Development and Disability Inclusion, Irek Kusmierczyk, acknowledged this reality. He said:
Living with dignity is a far-off hope for many in these circumstances, and some persons with disabilities have, unfortunately and tragically, chosen to apply for MAID in the past year, with poverty being the key driver. The sad fact is that eligibility for MAID has expanded faster than have the social supports that would lift persons with disabilities out of poverty and allow them to live with dignity.
Former Chief Human Rights Commissioner for Ontario, Professor Emeritus Catherine Frazee, described this alarming aspect of MAID:
We dial 911, we pull you back from the ledge, and yes, we restrain you in your moment of crisis. Autonomy be damned. We will get to the heart of the problem that drove you out into the woods and we will beckon you back toward a life that is bearable. Unless your suffering is medical or disability related, then and only then there will be a special pathway to assisted death.
Death on demand, essentially.
As we heard from Senator Miville-Dechêne today, there is a troubling connection between MAID and surprising numbers of people living with disabilities saying clearly that they are now choosing MAID because they cannot live their lives with dignity and adequacy because they are kept poor.
This is why high and welcome aspirations in Bill C-22, unmatched by required resource adequacy, have disability advocates telling us that the focus needs to be placed on strengthening the insufficient framework of this bill. It is not an either/or proposition. Advocates are not suggesting that all details must be worked into the bill. There is no need. Nor are they calling for overly prescriptive legislation here.
Professor Hansen, Professor Frazee, lawyers David Lepofsky and Roberto Lattanzio and their many colleagues are experts. They are seasoned advocates in our democracy. They have to be. They well know that the majority of all legislation is fine-tuned and developed via regulation. They are not being naive in their assessment of essential changes that are needed for this framework to truly bring positive changes to the lived reality in the nitty-gritty of daily lives.
Put bluntly, Bill C-22 is too hollow, too void of direction and there is barely any scaffolding upon which a strong, durable framework can be built.
Here are four clear, practical improvements that the committee could consider: Bring a rights-based lens to the right to an adequate standard of living and social protection, consistent with the Convention on the Rights of Persons with Disabilities. Article 28 provides that “States Parties recognize the right —
The Hon. the Speaker pro tempore: Senator McPhedran, I’m sorry, but your time has expired.
Senator McPhedran: Thank you for this opportunity. Meegwetch.
Hon. Dennis Glen Patterson: Honourable senators, I rise to speak to Bill C-22, the Canada disability benefit, which, as you know, has unanimously passed through the House of Commons and is now before us for second reading in the Senate.
In speaking to this bill, I first want to pay tribute to Noah Papatsie, father and grandfather and a former video journalist from Iqaluit, Nunavut, who lost his sight in 1999 when video lights blew up in his face. Despite several attempts to save his eyesight, Papatsie became legally blind.
Noah has been an advocate for the disabled in Nunavut ever since. He is a former city councillor and President of the Nunavummi Disabilities Makinnasuaqtiit Society, the only cross-disability organization in Nunavut, which he was pivotal in founding. NDMS reaches out to communities across Nunavut, with community consultations on disability, accessibility and inclusion, on-the-land activities and job readiness, amongst other activities. He has also been a board member of Inclusion Canada since 2009.
It has been a real challenge for him to navigate in Iqaluit with its inclement climate and lack of sidewalks, so it was a great triumph for him when, in 2014, he acquired Xeno, Nunavut’s first guide dog, after a four-month period in Ottawa where Noah and Xeno learned to work together. Unfortunately, Xeno had to retire recently due to issues with his paws, no doubt exacerbated by the challenges of Nunavut’s harsh winter climate.
Noah is an eloquent spokesperson for the differently abled all across Nunavut, where a high proportion of the population have disabilities, and 80% of the population, he told me, suffer from hearing impairment, for example. Nunavummiut also face many barriers, including a lack of accessibility in public spaces and a lack of accessible vehicles.
Noah has been the foremost spokesperson for the differently abled in Nunavut, and he told me that he is eager to see Bill C-22 referred to our committee and expeditiously given third reading, subject, of course, to careful review in our committee. The other place passed several amendments that I believe have strengthened the bill, and now the Senate has an important role to play in transforming the lives of people with disabilities living in poverty.
I believe that your committee, in studying the bill, will hear that many in the disability community are supportive of moving the legislation to Royal Assent as quickly as possible. This will allow Bill C-22 to become law and for the government, in collaboration with the disability community, to get to work on the collaborative co-creation of Bill C-22’s regulations.
I understand that many in the community — no doubt not all — are also well pleased that in the other place an amendment was passed that commits the government to working directly with them on the development of the regulations and requires the government to report back to Parliament within six months of the bill being passed on how this was done.
The legislation now says:
Within six months . . . the Minister must table in the House of Commons a report that sets out the manner in which the obligation to engage and collaborate with the disability community in relation to the development of regulations has been implemented.
I have some experience of how not to undertake co-development in relation to Indigenous issues. The UNDRIP bill, the Indigenous languages bill and Bill C-29 readily come to mind. But I am hearing good things about the approach Minister Qualtrough — the Minister of Employment, Workforce Development and Disability Inclusion — and her officials have taken so far with the disability community. I’m therefore optimistic that this process can and will be based on mutual respect for the often-lauded but not-always-honoured principle “Nothing About Us Without Us.”
And while I’m often hesitant to leave important public policy decisions to the regulatory process, I believe that the commitment to having the disability community involved in the co-creation of regulations in this situation is the right approach. This commitment is the right approach only if it is done properly. The government has committed to such a process and, I fully expect, will be held to this commitment by the passionate, caring folks in the disability community in this country who have waited so long for progress and recognition.
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My view is that the quicker Bill C-22 can pass the legislative process in Parliament, the sooner work can begin on the details of the design and regulations and serious negotiations with provinces and territories can begin.
There have been concerns expressed about timelines for implementing this long-overdue regime, but the reality is that it will take time for the regulations to be worked out, drafted and for systems to be in place to administer the benefit. In this connection, I believe that on timing the bill has been strengthened by the amendments passed in the other place. There is now a provision that requires the minister to, within one year, table a report in Parliament on progress made in the regulatory process. In addition, an amendment was passed which provides further clarity on when the act comes into force that states:
This Act comes into force no later than the first anniversary of the day on which it receives royal assent.
I believe that one year is a reasonable time frame which will see the act in force as reasonably quickly as possible.
In this connection, it is encouraging that in the other place amendments were passed to also accelerate the timeline for a full parliamentary review of the Canada disability act from the third and fifth anniversary of its passing to its first and third anniversary. The existing federal, provincial and territorial programs will need to be reviewed and studied carefully to make sure all programs can work together to achieve no clawbacks to existing benefits and supports.
I know this is a very important and very challenging issue in our federation. Frankly, I’m not sure what can be put in this federal legislation to prevent the dreaded clawbacks from provinces and territories. Perhaps the only way is to negotiate on this very important issue with provinces and territories.
Existing federal, provincial and territorial programs will need to be reviewed and studied carefully to make sure all programs can work together to achieve no clawbacks to existing benefits and supports, and all levels of government must work together. Frankly, I’m not sure how the Senate can do more with this legislation to enable this to happen.
I understand that discussions have already taken place with the levels of government on this issue and, as well, for further transparency, I am encouraged with the amendment that was passed in the other place which “ensures agreements with the provinces and territories are made public.” Perhaps Canada could insist that those agreements could include commitments to no clawbacks.
I think that, to be realistic, this amendment may be as far as a federal parliament can go toward dealing with the issue of avoiding clawbacks in provinces and territories, though this issue will no doubt be an important matter for our capable Social Affairs, Science and Technology Committee to study.
Another important issue is the amount of the benefit. I expect that the committee will hear concerns in its study about not knowing the amount of the ultimate benefit as we consider this important bill. But I cannot see how this amount can be spelled out in legislation, which is difficult to amend and adjust. At least other amendments in the other place spell out that the amount of the benefit must be adequate and the method for determining the amount must take into consideration the official poverty line.
It was also encouraging to see that another amendment made in the other place will require the Canada disability benefit to be indexed to inflation. I know there have been concerns also expressed that the bill should set out specifics regarding eligibility and not save this for the regulations. But with the strong commitment now in the bill to involve the disability community in developing the regulations, I believe that complex discussions about eligibility, the application process, amounts or the appeal processes are actually best left to the regulation process, where the disability community can have a seat at the table and be involved in decision making within these complex areas that will take some time to debate and agree upon.
In this connection, I think it is helpful that amendments passed in the other place have offered clarity on certain items whereby: one, the definition of disability now is to have the same meaning as defined in the Accessible Canada Act; two, it must take into consideration the official poverty line and be indexed to inflation. I trust that will be the floor.
Let’s trust the disability community and the government to work out these important details in an atmosphere of respect, collaboration and compromise. With that, I support giving second reading to this bill promptly and sending it to committee with the hope that the committee can complete its work and report back well before our summer adjournment. Thank you, qujannamiik.
The Hon. the Speaker pro tempore: Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
(Motion agreed to and bill read second time.)
Referred to Committee
The Hon. the Speaker pro tempore: Honourable senators, when shall this bill be read the third time?
(On motion of Senator Cotter, bill referred to the Standing Senate Committee on Social Affairs, Science and Technology.)