Senator Pate: Thank you very much for that. Since our debates on Bill C-22, we have heard from a number of experts that some of the arguments put forth around the lack of constitutionality of the amendment proposed and rejected by the government was actually a red herring. The argument was not that the federal government has jurisdiction over regulating contracts, but, rather, that the argument as we were indicating is that the ancillary powers doctrine allows the federal government to legislate otherwise invalid provisions in order to achieve the objective, which, as you have pointed out, was the primary objective of the legislation — to achieve its valid exercise of spending authority to lift people out of poverty.

Many of these experts have quoted Professor Roderick MacDonald regarding the federal spending power. He talked about the fact that, historically, the “watertight compartments” metaphor of the division of powers has now been increasingly replaced by a more flexible doctrine that doesn’t take such a bright-line approach and is most significantly capable of enlarging the reach of the federal spending power:

As the Supreme Court moves to an expansive reading of the ancillary and national dimensions doctrines, the limits of jurisdiction in each order of government become much more difficult to pin down.

I’m curious whether the government considered this perspective before putting people’s access to the Canada disability benefit at risk by rejecting that amendment. And if so, why did they reject that analysis?