Hon. Ian Shugart: Honourable senators, I feel privileged to rise to speak in this chamber for the first time today.

Hon. Patti LaBoucane-Benson (Legislative Deputy to the Government Representative in the Senate) tabled the reply to Question No. 228, dated April 19, 2023, appearing on the Order Paper and Notice Paper in the name of the Honourable Senator Wells, regarding salmon farming licenses.

Hon. Patti LaBoucane-Benson (Legislative Deputy to the Government Representative in the Senate) tabled the reply to Question No. 191, dated January 31, 2023, appearing on the Order Paper and Notice Paper in the name of the Honourable Senator Plett, regarding Global Affairs Canada — Havana Syndrome.

Hon. Marc Gold (Government Representative in the Senate) moved:

That, in relation to 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, the Senate:

(a)agree to the amendments made by the House of Commons to its amendment 3; and

(b)do not insist on its amendment 2, with which the House of Commons disagrees; and

That a message be sent to the House of Commons to acquaint that house accordingly.

He said: Honourable senators, I rise today to speak in support of the amended version of Bill C-22, the Canada disability benefit act, and respectfully ask senators to accept the message from the other place. Let me begin by thanking the bill’s sponsor, Senator Cotter, for his tireless work in getting this bill to the finish line.

Colleagues, Bill C-22 was sent to us earlier this year after it was adopted unanimously in the House of Commons. The Standing Senate Committee on Social Affairs, Science and Technology held over 10 meetings on the bill, with 7 meetings of testimony from 44 witnesses, and received 48 briefs, hearing from many important voices in the disability community and identifying ways in which the bill could be enhanced. After carefully examining the bill, the committee adopted six amendments, which were returned to the other place.

[Translation]

On behalf of the government, I want to thank the committee members for their important work and for providing members of the disability community with a forum where they can share their stories, their views and their expertise on the purpose of the disability benefit and how it works.

[English]

In response to the Senate’s work, the government has accepted amendments 1, 4, 5 and 6 without change, accepted amendment 3 with modifications and has respectfully opposed amendment 2.

[Translation]

The government agrees with amendment 1 proposed by Senator Dasko because it strengthens the wording of the bill’s preamble. The committee heard a number of witnesses talk about the additional barriers faced by women, racialized Canadians and Indigenous people with disabilities. Recognizing these barriers in the preamble reinforces the intent of the bill.

[English]

With respect to amendment 4, which was introduced by Senator Lankin, the government agrees with this amendment. This change amends clause 11 of the bill, which outlines the amount of the benefit which will be prescribed by the regulations. Originally, clause 11 of the bill stated that the official poverty line as defined in section 2 of the Poverty Reduction Act must be taken into consideration when determining the amount of the benefit. This amendment further strengthens the bill by adding additional factors that must be considered when determining the amount of the benefit.

They are as follows:

(b) the additional costs associated with living with a disability;

(c) the challenges faced by those living with a disability in earning an income from work;

(d) the intersectional needs of disadvantaged individuals and groups; and

(e) Canada’s international human rights obligations.

This amendment would serve to improve the regulatory process that is to be co-developed with the disability community, and reflects testimony heard at the Standing Senate Committee on Social Affairs, Science and Technology.

The government also accepts amendment 5, proposed by Senator Petitclerc, as it further clarifies the original intent of amendments adopted by the House of Commons Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities during their consideration of the bill. This amendment would enable the Governor-in-Council to fix a date of the coming into force no later than one year after Royal Assent. This means that it could, in fact, be earlier than a year, but not longer than a year either. The government remains committed to co-developing the regulations with the disability community and having this benefit accessible to people as quickly as possible.

[Translation]

Finally, the government accepts amendment 6, as it agrees:

 . . . with the Senate proposal to make any necessary consequential changes to the numbering of provisions and cross-references resulting from the amendments to the bill;

[English]

Colleagues, the government understands and appreciates the intent behind amendment 2, which attempts to deal with clawbacks by private insurance companies. However, as has been previously identified and as I stated at committee, the government remains concerned with regard to the constitutionality of these provisions, as it would result in the federal government regulating the dealings of the insurance industry, which falls under exclusive provincial and territorial jurisdiction. I understand that Senator Cotter, given his considerable legal expertise, will address this issue more deeply as part of his remarks.

That said, the government certainly has concerns, and stakeholders have concerns, over how the private insurance industry will react to the introduction of the Canada disability benefit, and those concerns are not unfounded. The Minister of Employment, Workforce Development and Disability Inclusion is acutely aware of the potential for clawbacks and has committed to further engaging the private insurance sector once Bill C-22 is passed to ensure that the benefit is understood as a poverty-reduction measure meant to supplement existing disability benefits and supports — and that includes private disability insurance.

[Translation]

The government’s objective is to work with the private insurance sector and other providers of existing benefits and supports to achieve the main objective of the Canada disability benefit, which is to reduce poverty and to support the financial security of working-age Canadians with disabilities.

[English]

I’ll now turn to amendment number 3, as proposed by Senator McPhedran, which is about the appeal process.

The government has noted that this amendment makes some excellent points and most certainly strengthens the bill. What the government is now proposing is to build on that amendment and strengthen it even further. Bill C-22 does provide authority for the Governor-in-Council to make regulations respecting appeals. And now, with amendment 3, the bill would also include an explicit right to appeal in legislation. Many stakeholders made clear the need for that during the parliamentary process.

This amendment is aligned with the government’s intention to provide a mechanism for appeals, but the phrasing of the Senate amendment can be understood as suggesting that a right to appeal the decisions would be immediate.

Indeed, it could be construed as suggesting that the regulations could not require a person to first seek a review or reconsideration before appealing, and the government is therefore proposing that the wording of the amendment be clarified to be more specific and provide clearer details on the appeal provisions.

For example, amendment 3 lists two specific areas of appeal, which might raise doubts as to whether further grounds of appeal could be provided for by regulations. The government’s amendment to amendment 3 clarifies and strengthens the wording by widening the potential grounds of appeal as prescribed by regulations. Essentially, the updated amendment would make the appeals mechanism for the Canada disability benefit more consistent with those of Old Age Security and Employment Insurance.

In short, colleagues, the Canada disability benefit has the potential to make a real difference in the lives of working-age persons with disabilities and their families, and to reduce poverty in Canada. We can all agree that no person with a disability should be living in poverty in Canada.

[Translation]

Esteemed colleagues, the disability community and stakeholders have devoted an enormous amount of time, energy and emotion to Bill C-22.

[English]

They provided their expertise in witness testimony at committees, and they recently held a rally on Parliament Hill to ensure this bill is passed quickly. They are counting on us as we approach the finish line.

But it isn’t just Canadians with disabilities who are waiting for us to move forward with the benefit today. It’s their families, their friends and their advocates — people who understand their struggles.

[Translation]

The vast majority of Canadians agree that working-age persons with disabilities need this benefit. We know this because, according to a 2021 Angus Reid poll, almost 9 out of 10 Canadians support this benefit. Our objective, as well as theirs, is to improve the lives of persons with disabilities.

[English]

Therefore, colleagues, I urge you to support the message from the other place so that we can bring this bill one step closer to implementation and, ultimately, Royal Assent. Thank you.

Hon. Donna Dasko: Honourable senators, I rise today to speak to the message sent back to us from the House of Commons concerning the fate of Bill C-22, which establishes the Canada disability benefit. This important bill seeks to reduce poverty and to support the financial security of working-age persons with disabilities through the Canada disability benefit.

Notably, Bill C-22 is framework legislation, whereby the details and elements of the benefit will be developed through regulations and in consultation with the disability community, the provinces and the territories after the legislation is passed.

We learned from testimony at our Social Affairs Committee — for example, from Krista Carr of Inclusion Canada — that 40% of Canadians with a disability live in poverty, and we also learned from the bill’s sponsor, Senator Cotter, that 23% of those who are working age live in poverty. Let’s compare that to the 7.4% of all Canadians who lived in poverty in 2021, and we can understand the great need to take action.

The bill had first reading in the other place a full year ago on June 2, 2022, and it was sent to committee in the other place on October 18, 2022. A total of nine amendments were passed there before arriving here in February and at committee on March 22.

The bill arrived at our Social Affairs Committee with pleas from several major organizations representing those with disabilities, and from the government, to proceed without change. These pleas were accompanied by a substantial email campaign carrying the same strong message.

As committee work proceeded, it became clear, however, that the bill did, indeed, contain flaws and omissions — and several strong advocates came forward to urge that these flaws and omissions be addressed through amendments. Committee members were torn. Should there be amendments or no amendments? Would amendments delay the benefit, or even place the entire bill at risk?

Colleagues, we often receive admonitions to move quickly on legislation; this is not news to anyone. But I have to say that the pressure to review this bill without change was especially strong.

In the end, committee members did present amendments, and six amendments did pass at committee, which deal with vital issues including the following: a specification that the benefit cannot be clawed back by insurance companies; a guarantee of an appeal process; and a recognition that four additional factors — the additional costs associated with living with a disability; the challenges faced by those living with a disability in earning an income from work; intersectional needs; and Canada’s international human rights obligations — must be considered in establishing the benefit. An amendment to the preamble recognized that persons with disabilities may face additional barriers because of their gender, racialized or Indigenous status or other intersecting statuses. Two amendments concerned the timeline and the coming-into-force provisions.

As we know, the government and the other place have accepted five of these six amendments.

I am deeply disappointed that the amendment designed to prohibit clawbacks of the benefit by insurance companies was not accepted. I felt that it was a strong addition to the bill, but it was turned back for reasons related to jurisdiction, which Senator Gold has just explained, so I will not delve into that now.

I am very pleased that the five other amendments were accepted, including an enhanced change to the amendment concerning the appeal process — I think that’s a very positive change.

Before closing, I want to mention two points that particularly caught my attention in the debate on Bill C-22: In her third‑reading speech, Senator Seidman drew our attention to clause 12 of Bill C-22, which calls for a review of the act — after its first anniversary, third anniversary and at each subsequent fifth anniversary — by a committee of the Senate, the House or both. Senator Seidman further drew our attention to a recent article by Charlie Feldman, former Parliamentary Counsel for the Senate, which identified provisions in many federal statutes that call for review by Parliament. Mr. Feldman found 51 such provisions in legislation in the period of January 2001 to June 2021, but he also discovered that many statutory reviews never happened, and others are many years behind schedule. Only 17 of the 51 had resulted in a report.

Colleagues, I know that we’re not looking for more work to do, but it strikes me that vital and necessary work involving statutory review of legislation is not being done, and Parliament needs to step forward.

A second point caught my attention: It was Senator Cotter’s comment — also at third reading — that an appeal process might be considered a matter of natural justice in legislation such as Bill C-22, whether an appeal is stated in law or not. This is an extremely interesting and important observation, which raises questions for me about the circumstances and conditions, in government or elsewhere, where appeal processes might be available to complainants as a matter of natural justice. I look forward to hearing and learning more about this. These are considerations for another day, however, but I thank both colleagues for these interventions.

Most importantly, the debate on Bill C-22 allowed us to learn more about and to understand some of the real challenges of life: the needs and concerns faced by those who live with disabilities. I am grateful to all of our witnesses, all of my Senate colleagues and the many folks who contacted me to express their views about the legislation before us.

I feel we have done some very good work on Bill C-22, and this chamber should be proud of our contribution. I urge acceptance of the message. Thank you.

Hon. Kim Pate: Would you take a question, Senator Gold?

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]

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. 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. 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. 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. Brent Cotter moved second reading of Bill C-51, An Act to give effect to the self-government treaty recognizing the Whitecap Dakota Nation / Wapaha Ska Dakota Oyate and to make consequential amendments to other Acts.

He said: Before I begin, I want to acknowledge that Canada’s Senate is located on the unceded traditional territory of the Algonquin Anishinaabeg people.

I want to begin my remarks by talking about the War of 1812. Now, I wasn’t there, and I don’t think most of you were either, but it was a fairly important war. It was our only war with the United States of America, and you might recall that we won. Indeed, though lost to a degree in the mists of history, the political and governance structure of this continent and this country would be vastly different if that war had had a different outcome.

The Dakota were critical military allies of the British in that war. During the War of 1812, they defended what is Canada today and were presented with King George medals and promises that their lands and rights would be protected.

This was a major moment in an otherwise formative period of the Crown-Dakota/Lakota relationship that began in the mid-18th century, and in a context of increasing conflict between British North America and the United States.

In the years that followed, the Dakota did not feel particularly welcome — that is, those who resided in the United States — and Chief Whitecap was one of the leaders that journeyed north with his community to Canada. They wanted to remain part of a British territory and reminded authorities of the promises made to them.

It is an understatement to say that their commitment to British North America did not make them popular in the United States and, as I will emphasize later, since time immemorial the Dakota, and specifically the Whitecap Dakota, have governed themselves.

I will now say a few words about the history of the Dakota and, in particular, the Whitecap Dakota, and then a bit about self‑determination and self-government for the Whitecap Dakota First Nation and leading to this bill and agreement. In doing so, I hope to show why the bill we’re speaking about is critical to advancing reconciliation in Canada. I hope to show that, while some of the bill’s details might be new, the concepts of self-determination and self-government it is based on are not new. Indeed, what we’re doing is reviving what previously existed.

The Dakota are part of the Oceti Sakowin Oyate, the People of Seven Council Fires, which was an alliance of seven Dakota, Lakota and Nakota groups. These groups shared similar languages, history and culture and their territory spanned central regions of the United States and Canada.

The word “Dakota” means “friends, or allies” — meaningful in the context of the War of 1812, I think — and the Dakota/Lakota Nation successfully built alliances to establish peace and prosperity.

In the early 1860s, when many Dakota people sought refuge in the north, they were led by Chief Whitecap, Chief Standing Buffalo and Chief Little Crow. Chief Whitecap established his community along the South Saskatchewan River, and — you may find this amazing — went on to co-found the city of Saskatoon, my city.

Most of the bands are located in Manitoba and Saskatchewan. The Whitecap Dakota band is on a reserve about 30 kilometres south of Saskatoon. It is a small First Nation with a population of 692. It has a small parcel of reserve land, much smaller than other treaty nations in Saskatchewan. It’s near the South Saskatchewan River. It’s not on good land, and for more than a century the Whitecap Dakota struggled.

Let me speak a bit about its history, in particular dating to 1991, more recently, when Chief Darcy Bear became chief. The nation had an unemployment rate of 50%, its social and health services for its people were in tatters and the band’s finances were abysmal. Chief Bear told me recently that when he became chief, he was attending university and was in business school. As a student, he had a small amount of money in his bank account. By comparison, the band’s bank account had nothing and, in fact, it was overdrawn. He was, in a way, richer than his whole First Nation.

Where is the Whitecap Dakota Nation now? The band has developed services for its people in education, social services and health. It has established a range of business enterprises and it has an almost nonexistent unemployment rate. Among their best‑known businesses and enterprises are a First Nations casino — the most spectacular and successful in Saskatchewan — a world‑class golf resort and an adjacent hotel resort. When it opened, the Dakota Dunes Golf Links was selected the best new golf course in Canada. The Professional Golfer’s Association Tour Canada, or PGA, stops there every July.

The nation’s wise land management, a range of economic development initiatives and efforts to build a tax base for their own-source revenues is exceptional.

The Whitecap Dakota Nation is well known across Canada for this remarkable socio-economic development and the various successes of its business ventures and partnerships, many with the private sector and with the Province of Saskatchewan.

Though the reserve is small and the population, as I said, is only 692 people, its enterprises generate millions annually in own-source revenue for their community. This prosperity extends beyond Whitecap Dakota’s reserve and has significant benefits for neighbouring local businesses and the city of Saskatoon. For example, the on-reserve businesses employ as many non-First Nations people from off-reserve as there are citizens of the Whitecap reserve in total. About 650 non-members are employed at Whitecap; Whitecap is an economic engine for my city. In short, Whitecap is a strong, thriving community and has a long history of self-governance.

The Crown promised assistance and protection following their participation in the War of 1812. How did that work out?

Well, that promise was broken. Talk about breaking promises early. The war occurred in 1812, and promises were broken in the negotiations that concluded with the Treaty of Ghent in 1815 — three years later. These are the negotiations that ended the War of 1812.

The Dakota were not welcomed by the Crown as allies. Instead, they were permitted to stay in Canada but branded as “American-Indian refugees” in the decades that followed. When the Crown began entering into the numbered treaties with First Nations in Western Canada in the late 1860s, the Dakota were purposefully excluded from the numbered treaties.

As a result of unfair policy decisions made over a century ago, the Dakota have been denied formal recognition as Aboriginal peoples of Canada under section 35 of the Constitution Act, 1982 — denied recognition as Aboriginal peoples until, hopefully, Thursday of this week. In every way but one, the Dakota nations have been treated as any other First Nation, Your Honour, and, generally speaking, the treatment has not been favourable. They were subjected to the Indian Act, residential schools, the Sixties Scoop, the pass system, the theft of their children, the reserve system and various other laws and policies that have failed Indigenous people and Canada writ large. The Dakota have shared in this experience and, at the same time, do not even have a constitutional foothold the way that other Indigenous communities have. They continue to exist today as “American-Indian refugees,” present in Canada at the pleasure of the Crown.

The Whitecap Dakota self-government treaty we’re talking about today in Bill C-51 will change all of that. It will reinforce the Dakota spirit of alliance, as was recognized way back when. What does the Whitecap Dakota Nation think of this bill? It is acknowledged to be the next step toward the First Nation’s vision of self-determination. The treaty is a product of 12 years of negotiations. Senator Arnot was an early proponent of this, and I hope he will speak about it himself in his remarks. It was approved by Whitecap Dakota membership through a community approval campaign that was aligned with their customary decision-making processes with 92% support in the fall. When, finally, the membership voted on this governance treaty, the vote was 100% in favour. Sounds fairly positive to me: strong community support.

What does Bill C-51 do? The bill does two things: First, it recognizes Whitecap Dakota as a First Nation pursuant to section 35 of the Constitution. This changes their status from refugees to an Aboriginal people recognized under section 35, correcting more than a century of injustice. Second, it removes Dakota Whitecap from the oversight of most aspects of the Indian Act and recognizes a range of governmental authorities for Dakota Whitecap in the self-government treaty. As we know, many federal laws and policies, including the Indian Act, have constrained First Nations governance.

First, the Indian Act imposed a colonial form of governance on Dakota Whitecap, and so many other First Nations, with limited forms of local administration. For decades, the Dakota Whitecap have been working to leave the Indian Act. They had a series of initiatives from 1989 to 2012 and have removed themselves, as if percentages matter, from about 35% of the Indian Act’s control over Whitecap Dakota — steps toward reclaiming self‑governance.

To replace this very large Indian Act framework in this treaty and self-government agreement, the governance treaty provides that the Government of Canada will recognize the First Nation and give it jurisdiction over core governance; membership; language and culture; lands management; emergencies; public order; peace and safety; taxation; environment; resource management; agriculture; public works and infrastructure; local traffic and transportation; wills and estates; education; health; licensing, regulation and operation of businesses; economic development; alcohol, gaming and intoxicants; landlord and tenant matters; and the administration and enforcement of Whitecap Dakota laws. It’s a pretty spectacular range of governmental authority.

I want to say a word or two about taxation, and here I will leave my prepared remarks, if I may.

One of the great constraints of the Indian Act and the Canadian relationship with First Nations, in my view, is that we have not moved to models like own-source revenues and the building of financially accountable governments. We have relied too much on transfers from Ottawa.

We need to build the models of government that communities need and want. One of the keys to that is building a taxation regime that a government can administer itself. From my briefs with government officials over the past few days, I understand the Department of Finance has been working to negotiate a complementary real property tax agreement and tax treatment agreement setting out the scope of Whitecap Dakota’s tax jurisdiction on reserve lands.

The department highlighted that Whitecap Dakota have proven successful with innovative taxation tools and powers and that these complementary agreements yet to come will provide the community with added taxation powers to advance this interest. In fact, the real property tax agreement set out in this legislation is the first agreement of its kind in the country.

Senators, this is good legislation. It puts decision-making power back in the hands of Indigenous governments to make their own choices about how to deliver programs and services to their own communities. The bill also, I should say parenthetically, renames the self-governing entity the Whitecap Dakota Nation. They lost their name when they left the Indian Act, and they needed a new one. This is the one the community wanted, and it is a good one.

This bill is a major step to revive self-governance and self‑determination for the Whitecap Dakota people who have contributed to our country for a very long time, and that contribution has not been well recognized. It is also an important step for reconciliation, moving past colonialism and paternalism, toward legislation grounded in equality and respect.

Honourable senators, I encourage you to join me in taking this next step.

Thank you, pidamayado.

Hon. Mary Jane McCallum: Would Senator Cotter take a question?

Senator Cotter: I certainly would.

Some Hon. Senators: Hear, hear.

Hon. Yonah Martin (Deputy Leader of the Opposition): Senator Cotter, thank you for your speech. I enjoyed the historic piece on the journey of the Whitecap Dakota Nation.

Honourable senators, I rise today to speak to Bill C-51, An Act to give effect to the self-government treaty recognizing the Whitecap Dakota Nation / Wapaha Ska Dakota Oyate and to make consequential amendments to other Acts.

On Tuesday, May 2, 2023, the Whitecap Dakota Nation signed a self-government treaty recognizing them as a section 35 rights holder in Canada. Those negotiations began in 2009 under the former Harper government. The agreement was co-developed in consultation with the Whitecap Dakota First Nation, and affirms their inherent right to self-government under the Constitution Act, 1982. The treaty is the first of its kind in Saskatchewan.

The Whitecap Dakota First Nation was an ally of the British Crown, as explained by Senator Cotter, and, through historical oversights, they were never given that proper recognition. This legislation aims to correct the oversights from past governments, and to provide the Whitecap Dakota First Nation with its own self-government treaty.

This legislation has been in negotiations for 13 long years, and has been a joint effort between the Whitecap Dakota First Nation; Conservative Minister Chuck Strahl and Conservative Minister John Duncan; and Liberal Minister Carolyn Bennett and Liberal Minister Marc Miller.

I am pleased that it was expedited through the other place, and I hope that we can accomplish the same here in the Senate.

The bill recognizes that the Whitecap Dakota First Nation has jurisdiction and law-making powers on their reserve lands over governance, land, natural resources, membership, cultural matters, language revitalization and preservation, education, financial management and accountability, health and social services. The treaty is seen as an important opportunity for the Whitecap Dakota First Nation to move out from under the Indian Act.

The bill does several important things: It recognizes the Whitecap Dakota First Nation as Aboriginal peoples with full section 35 and section 25 constitutional rights. It constitutionally protects their inherent right to self-government as set out in the treaty. It strengthens their position to treat with Canada in the future on lands and titles. It removes the First Nation from the Indian Act. And it ensures that the Whitecap Dakota First Nation can still access the First Nations Fiscal Management Act.

The Whitecap Dakota First Nation fully supports the bill, with Chief Darcy Bear stating:

I am incredibly proud of our community as we make history together to better the lives of generations to come. Our Governance Treaty with Canada affirms our place as Dakota peoples alongside all other Aboriginal Peoples in Canada with constitutional protections. It also establishes a Whitecap Dakota government with the tools and status to continue to build our nation and contribute to Saskatchewan and Canada as whole.

The entire community was part of the process; a Whitecap advisory committee of elders, youth, women and community members helped to shape the agreement, and ensure the process protected First Nation perspectives, culture and customs. As a result, 92% of Whitecap members voted to approve the treaty, which affirms the First Nation’s inherent right to self‑government.

When asked about the importance of finally being recognized as a section 35 rights holder in Canada, as well as what that means for his community, Councillor Dwayne Eagle said to the House of Commons Standing Committee on Indigenous and Northern Affairs:

I’ll get a little personal. Sometimes when there’s a dispute with other First Nations, they say something like, “go back to where you came from.” We’re from Canada. That’s our land and territory. Once they recognize us as Aboriginal peoples of Canada —

That’s one of the things that we talked about with our community. They want that. They want to make sure that’s included in the agreement. It’s pretty important for us.

Honourable senators, I have kept my comments brief in recognition of the importance to pass this bill as quickly as possible. The recognition inherent in Bill C-51 is important to Whitecap Dakota First Nation members and elders. It protects their self-government treaty, and from here we can move forward and build on reconciliation efforts with the community.

As Fraser Tolmie, MP for Moose Jaw—Lake Centre—Lanigan in Saskatchewan, said to the House of Commons Standing Committee on Indigenous and Northern Affairs yesterday:

. . . one of the frustrating things for me when I go through this history and this recent history is that it seems so simple. This should have been done such a long time ago . . . .

Honourable senators, let us not delay this any further. Conservatives support treaty rights and the process of reconciliation with Canada’s Indigenous peoples — and we support Bill C-51.

Hon. David M. Arnot: Honourable senators, I rise to speak in support of Bill C-51, An Act to give effect to the self-government treaty recognizing the Whitecap Dakota Nation / Wapaha Ska Dakota Oyate and to make consequential amendments to other acts.

Colleagues, Bill C-51 represents a full circle moment for me. More than 25 years ago, I was the Treaty Commissioner for Saskatchewan, and I had a mandate to research, document and capture the meaning of the treaties in a modern context in the Province of Saskatchewan.

In January 1999, the minister of the former Department of Indian and Northern Affairs and Northern Development and the chief of the Federation of Sovereign Indigenous Nations, or FSIN, directed me to facilitate discussions between the Dakota and the Lakota on treaty adhesion claims in Saskatchewan.

There are three Dakota First Nations in what is now Saskatchewan — the Standing Buffalo, the Wahpeton and the Whitecap — and there is one Lakota First Nation: Wood Mountain. These First Nations never negotiated treaties, or adhesions, with Canada. It was not, however, for a lack of trying on their part.

Mr. James Morrison, a legal and historical researcher, found that several Dakota chiefs had expressed interest in adhering to the treaties at the time they were made — Treaty 4 in 1874, and Treaty 6 in 1876: According to the minutes of the council with Treaty 4 commissioners, Lieutenant Governor Alexander Morris told the Dakota that they should settle away from the American border. They would be entitled to the same consideration as the Dakota who had been offered reserve lands on the Little Saskatchewan River, which is now in part of Manitoba.

In 1862, Chief Whitecap, came north of the 49th parallel after the Minnesota massacres. However, the Dakota people had been in the territory for centuries before that, and they were able to demonstrate that.

In 2003, I was fortunate to see and hold a centuries-old medal during the discussion at the treaty table. This medal, known as the “Lion and Wolf” medal and called “Mazaska Wanpin” by the Dakota, represents the forging of the relationship with the Crown.

This medal was on display at the Office of the Treaty Commissioner for some time. If you looked at the obverse side of the medal, you could see that it was well worn and you could tell that it was proudly worn by Dakota chiefs for some 200 years.

On August 17, 1778, in Montreal, 11 Dakota chiefs received “Lion and Wolf” medals from the British general Frederick Haldimand. The lion symbolized the British Crown, and the wolf symbolized the American government nipping at the heels of the lion. The chiefs were given the medals because they were essential in the British campaigns in Illinois and Kentucky during the American Revolution.

The Dakota also received seven “Lion and Wolf” medals during the War of 1812, most likely in June of 1812 at Chief Wabasha’s village. Dakota warriors played an integral role in the British capture of Michilimackinac and the siege of the American Fort Meigs during that war.

A much more unique and compelling history of the bond between the Crown and the Dakota people was offered during discussions at the treaty table in Saskatchewan.

I wrote a report recommending that the Dakota people be allowed to adhere to Treaty 4 and Treaty 6, respectively. I also recommended that, in the alternative, Canada enter into treaty discussions with the Dakota people because the Government of Canada could choose to enter into treaty with whomever they want to, and that should happen in a modern context. Most importantly, it would be the right thing to do.

Despite the goodwill and good faith of the parties to the discussion, and despite the hours of interest-based discussions that took place, the process — which I was part of — was ultimately not successful. However, I believe that those original efforts laid the groundwork for the bill we are considering today. The comprehensive self-government negotiations, which began anew in 2009, were built on the relationships that were forged a decade earlier at the treaty discussions in Saskatchewan.

An understanding, appreciation and acceptance of the oral history, as well as the historical record, bring us here today. There is much evidence that the Dakota people had been in the territory for centuries. Historical records tell us that even in the absence of treaty signing or adhesion in the latter half of the 1800s, promises were made to the Dakota people.

Dr. Sarah Carter, professor of history at the University of Alberta, detailed the meeting with Treaty Commissioner and Lieutenant-Governor Alexander Morris, on September 16, 1874:

[Chief] White Cap began by saying that “he does not know what to do as he heard the country is going to be sold and wants advice on how to live. He puts his hand in the governor’s to show he shakes hands with the Queen —

— Queen Victoria —

— His ancestors used to do the same.” Morris said that we don’t want all your friends [from the United States] to come over . . . [However] who have been here a number of years it is different. He stated he had the ability to give each family 80 acres of land.

Colleagues, the first statement in the preamble of Bill C-51 clarifies the importance of history as we look to the future. It states:

Whereas the Whitecap Dakota Nation and the Government of Canada recognize distinctive historical relationships between certain Dakota communities and the Crown based on, at various times, treaties or alliances of peace and friendship . . . .

With an understanding of the past, and as we reflect on the needs of the present — as the drafters of Bill C-51 have done — this act requires us to look to the future of the Whitecap Dakota First Nation, a future largely free from the constraints of the ndian Act, founded on the principle of the inherent right to self‑government and based on a government-to-government relationship.

We are all aware that the Whitecap Dakota First Nation signed their self-government treaty with Canada on May 2, 2023. This treaty confirms Whitecap Dakota First Nation’s jurisdiction on their reserve lands over governance, natural resources, membership, financial management and accountability, health, language and culture promotion and preservation, and education. Affirming their section 35 constitutional rights as Aboriginal peoples signifies a historic shift in Canada’s position on the Dakota and enables ongoing reconciliation.

Bill C-51 and this governance treaty have been a long time coming for the Whitecap Dakota peoples, their community and leaders — by one estimate, nearly 140 years.

Colleagues, I wish to acknowledge the leadership, guidance and determination of Chief Darcy Bear. Chief Bear is an extraordinary leader, relationship builder and entrepreneur. I have had the good fortune to get to know him and work with him over the course of the last 30 years. He has been notably successful in many areas, including housing on the reserve, the creation of a casino and hotel, and the establishment of a world‑class golf course, as has been mentioned.

I also want to acknowledge the contributions of two long-time councillors, Mr. Frank Royal and Mr. Dwayne Eagle.

I am grateful to the elders who help guide Chief Bear and his community. They were also involved in the processes in which I took part.

I am deeply indebted to Elder Melvina Eagle and the late Elder Mel Littlecrow — two elders who freely provided their knowledge, wisdom and guidance to the parties and to me those many years ago. Their knowledge is fundamental to this bill, to the relationships that have been forged and to the reconciliation that this treaty represents, which is encompassed in this bill.

Colleagues, the Whitecap Dakota First Nation people have always had high expectations for their community and for themselves. Bill C-51 acknowledges their rightful place within the Canadian state. I believe this legislation is in Canada’s best interest, and I ask you to join me in supporting this bill, which rights a historical wrong and represents a modern-day example of reconciliation. Thank you.

[Translation]

Hon. Michèle Audette: Under the Indian Act, women who marry non-Indians were expelled. I understand that, according to the document, the Canadian Charter of Rights and Freedoms will apply, but can you tell us whether Indigenous women of this nation, who are not recognized in Bills C-31, C-3 and S-3, have been reinstated, or not at all?

[English]

Hon. Renée Dupuis: Would Senator Arnot accept a question?

[English]