Statements & Speeches

Bill C-22 – The Canada Disability Benefit Act – Third Reading

May 17, 2023

Honourable senators, I rise today as opposition critic to speak at third reading of Bill C-22, An Act to reduce poverty and to support the financial security of persons with disabilities by establishing the Canada disability benefit and making a consequential amendment to the Income Tax Act.

I want to thank my colleagues on the Standing Senate Committee on Social Affairs, Science and Technology for their careful study of this bill; our chair, Senator Omidvar, for her leadership of the committee; and our sponsor, who was totally devoted to getting this bill done as soon as possible.

I am also so grateful for the impassioned testimony we heard from members of the disability community about the importance of this legislation.

As you have heard already, the Social Affairs, Science and Technology Committee did make six amendments to Bill C-22. I supported two of those amendments: the first, a technical amendment around the coming-into-force date to correct an error introduced during committee clause by clause in the other place; the second, more substantive.

Four years ago, the Social Affairs, Science and Technology Committee and the Senate added timelines to the Accessible Canada Act, and now, this year, we have added timelines to the Canada disability benefit act. In so doing, we amended this bill in clause 11 to require the Governor-in-Council to make the necessary regulations within 12 months to enable the Canada disability benefit to be paid in accordance with this act. This timeline will ensure that the regulations will be made expeditiously, as the advocates from the disability community reminded us.

Among our witnesses, David Lepofsky, from the Accessibility for Ontarians with Disabilities Act Alliance, was perhaps the most emphatic when he said:

Everything depends upon the regulations, but there is no deadline for the regulations to be made. The minister said six months ago that she needs a year, and they don’t have to wait until the bill is passed. They’re doing policy work now. . . . So set it for a year . . . Set a deadline.

This 12-month timeline is consistent with estimates that Minister Qualtrough has given, both to our committee and to the media.

On March 22, in response to a question from Senator Osler, Minister Qualtrough said:

Based on all the work we’ve done already — that is, the massive consultations, the surveys, the funding of national organizations to reach out to their members and their communities to get input — we anticipate a 12-month regulatory timeline.

In addition, this amendment allows for accountability and provides a metric to measure progress.

As you have already heard, there are other amendments which were moved in committee, many of them important and championed by members of the disability community. Yet, as I expressed in my second reading speech, perhaps the greatest challenge is that the government has presented us with an enabling act, setting out the framework of a regulatory scheme and delegating the authority to develop the details in regulations. Rather than delineating the particulars of a policy as it translates into law, this legislation leaves the responsibility with the regulators who act in counsel with the cabinet and minister.

Health Canada’s website describes the relationship between regulations and legislation thus:

Regulations are a form of law, sometimes referred to as subordinate legislation, which define the application and enforcement of legislation. Regulations are made under the authority of an Act, called an Enabling Act. Regulations are enacted by the body to whom the authority to make regulations has been delegated in the Enabling Act, such as the Governor in Council or a minister . . . .

The resulting regulations are referred to as delegated legislation. As Marc Bosc and André Gagnon explain in Chapter 17 of House of Commons Procedure and Practice, Third Edition:

Some acts of Parliament delegate to Ministers, departments, agencies, boards or other authorities the power to make and apply subordinate legislation described only in general terms in the acts. Delegated legislation is a term used to describe these regulations, orders, rules, by-laws and other instruments.

Honourable senators, such enabling legislation fundamentally changes our role as parliamentarians.

The use of delegated legislation in Canada has continued to be a subject of some debate since Confederation. I am indebted to the Social Affairs, Science and Technology Committee’s Library of Parliament analyst, Laura Blackmore, who shared resources with our committee so that we could better understand the use of these powers.

Professor Lorne Neudorf, Editor-In-Chief of the Canadian Journal of Comparative and Contemporary Law and Deputy Dean of Law at La Trobe University in Melbourne, Australia, is close to completing a comparative, multi-year study on the parliamentary supervision of delegated legislation in Australia, Canada, New Zealand and the United Kingdom funded by the Social Sciences and Humanities Research Council of Canada.

In a 2018 article in the Dalhousie Law Journal entitled “Reassessing the Constitutional Foundation of Delegated Legislation in Canada,” Professor Neudorf traces the Canadian case law on delegated authority. He writes:

While there are important benefits to Parliament delegating some of its lawmaking powers to others, such as allowing detailed rules to be made quickly in response to new circumstances and saving Parliament’s time and resources for key policy debates, there are real concerns about the quality, transparency and accountability of a lawmaking process that is carried out mostly behind closed doors.

Delegation permits important decisions that affect the country as a whole to be made through a process that excludes Parliament and does not embody the qualities of Parliament that are reflected in the Constitution — specifically its democratic, representative and accountable qualities. These qualities explain why Parliament was placed by the framers at the centre of federal lawmaking . . . .

Not only has Bill C-22 delegated almost everything to the regulations, but there is significant pressure to pass this bill as quickly as possible.

The Social Affairs, Science and Technology Committee’s study of Bill C-22 — eight meetings with witnesses and additional meetings for clause by clause — was considered lengthy by those who wanted to see the bill passed with no questions asked. However, eight meetings’ worth of testimony is insufficient to formulate policy. Had the government given us a more appropriate bill — with eligibility criteria, conditions to be met in order to receive the benefit, the amount of the benefit, an appeal process, a timeline, et cetera, all carefully specified — the Social Affairs Committee would have heard testimony on detailed provisions, and we could have exercised true sober second thought. Instead, we had to review the legislation in the most general of terms.

Where does that leave us?

The courts have upheld delegated legislation as constitutional, but, in their decisions, they have emphasized the importance of parliamentary oversight. As Professor Lorne Neudorf outlines, when considering Hodge v. The Queen from 1883, the Judicial Committee of the Privy Council, Canada’s highest court at the time, placed “responsibility on Parliament to supervise the executive in making delegated legislation.”

Professor Neudorf also notes that in the 1918 In Re Gray decision, Chief Justice Fitzpatrick and Justice Duff argued:

The continuing availability of parliamentary supervision, and to the degree necessary, control of the executive alleviated concern about the executive usurping Parliament . . . .

Regarding the 1943 Chemicals Reference case, Professor Neudorf writes:

While the Supreme Court upheld the constitutionality of the relevant aspects of the statute, the judges emphasized the role of Parliament in holding the executive to account by supervising and controlling the exercise of delegated authority.

Therefore, according to the courts, delegated legislation is constitutional, yet Parliament must do its job to closely monitor the regulations. If we pass this legislation, then we are charged with such parliamentary supervision. If not, we will have abdicated our responsibility. Thus, if we pass Bill C-22 now, we will extend the first stage of oversight to the disability community.

The government has committed to consulting them in crafting the regulations. I feel confident that the community will be their own best advocates, and offer important insights, guidance and even the pressure necessary to ensure this is done in a timely fashion. But, ultimately, it is our parliamentary responsibility to hold the government to account.

Honourable colleagues, it is important to bring to your attention here that clause 12 of Bill C-22 reads:

As soon as feasible after the first anniversary of the day on which this section comes into force, after the third anniversary of that day and after each subsequent fifth anniversary, a review of this Act and of its administration and operation is to be undertaken by a committee of the Senate, of the House of Commons or of both Houses of Parliament that may be designated or established for that purpose.

I would also like to add the following cautionary note on the matter of our own history of parliamentary reviews. Charlie Feldman, whom I am certain we will all remember as the Parliamentary Counsel for the Senate, published an article in the Journal of Parliamentary and Political Law in March 2022 entitled “Much Ado about Parliamentary Review.” Mr. Feldman identified provisions in federal statutes that specifically contemplate the review of an enactment, or portions thereof, by a parliamentary committee. In his review of the period of January 2001 to June 2021, he found 51 such provisions requiring a committee to review legislation at a future time. However, he discovered that many reviews never happened, and that many reports on statutory reviews are years behind schedule. At the time of his writing in 2022, only 17 of those 51 reviews had resulted in a report.

Mr. Feldman noted:

. . . it may be that reviews do not occur in part because there appears to be no meaningful consequence for failure to conduct review.

Honourable colleagues, we should consider ourselves on notice. We must do better to ensure the parliamentary review of this piece of legislation as it is enacted, as well as the review of all legislation that specifies a review process with timelines.

To briefly comment on our observations, in my opinion, it can be a rather futile process to include many observations to a piece of legislation. However, given that this is bare-bones legislation, the committee thought it’s important to bring attention to relevant issues presented by witnesses from the disability community. You have already heard those observations, as described in our committee report and discussed by Senator Omidvar, the chair of the Social Affairs Committee, yesterday.

Honourable colleagues, in closing, although Bill C-22 is an enabling act and empty of all specifics, it is also a landmark opportunity — and strongly supported by the disability community. As Amélie Duranleau, the Executive Director of the Quebec Intellectual Disability Society, told our committee:

This bill could play a key role in lifting persons with disabilities out of poverty across the country. In this sense, this is an opportunity we have not seen in decades.

Let us ensure that Bill C-22, as amended, is passed here now, and hope that the other place will be expeditious in their response. Such quick action would allow the government and the community to move forward with the regulations. But let us not lose sight of our critical role — indeed, our responsibility — to scrutinize those regulations in review, and to hold the minister and cabinet to account.