ARCH Disability Law Centre

Submission to: 

Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities (HUMA)

Re: 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

November 8, 2022

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Introduction
ARCH makes this submission to the Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities (HUMA) regarding its study of the proposed 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 (Bill C-22). 
ARCH’s submission draws upon our legal knowledge of and experience with federal disability legislation, including the Accessible Canada Act (ACA) and its regulations, the Canadian Human Rights Act, the Canadian Charter of Rights and Freedoms, and medical assistance in dying (MAiD) legislation. We draw upon our legal knowledge of, and experience with, the Convention on the Rights of Persons with Disabilities, an international human rights treaty which Canada ratified in 2010. In addition, our submission is informed by the experiences of persons with disabilities, our clients and the communities we serve. 
ARCH Disability Law Centre is a poverty specialty legal aid clinic that practices exclusively in disability rights law. Information about ARCH and our work is available at: ARCH Disability Law Centre website 
Urgent Need for Income Support Benefit to Persons with Disabilities in Canada
While the cycle of poverty amongst persons with disabilities has persisted for many years, there is now an additional sense of urgency. Since March 2021, the Government expanded MAiD to allow people who are not at the end of life to die due to their disability-related suffering and who meet other eligibility criteria. Widespread social and economic deprivation has created conditions in which dying appears to be the only answer for some persons with disabilities to escape poverty, lack of supports, services, and other necessities. The Government continues down this path of liberalizing assisted death for persons with disabilities; in March 2023, persons whose only condition is a mental illness will become eligible for MAiD.  

We support calls from disability communities to pass federal income support legislation without delay for the sole purpose of ensuring that benefits are provided to people who need them most as soon as feasibly possible. 
Bill C-22 is bare and void of assurances that it will achieve its intended purposes. Strengthening this Bill with needed parameters will yield a stronger legislative framework without slowing or stalling the legislative process, and arguably speed up the regulation development process, with greater guidance and timeframes to facilitate subsequent development of regulations.  
The Government has acknowledged the devastating, and disproportionate poverty among persons with disabilities, and the urgent need to address this critical and dire reality. Referring to Bill C-22, Minister Qualtrough stated, “[t]his is a once-in-a-generation opportunity to do better by persons with disabilities.” The Bill unanimously passed second reading, indicative of the unity and importance of this issue amongst political parties, communities and stakeholders.  
ARCH questions why the proposed bill is devoid of virtually any detail and commitment given the urgency and the gravity of what is at stake. We share concerns that the Bill does not frame its purpose as poverty eradication; does not commit to a minimum standard of adequate living to lift people with disabilities out of poverty; does not provide any guidance as to eligibility, harmonization or prohibit claw-backs of provincial/territorial benefits and supports; and does not include any detail on an accessible, fair and transparent appeal process. 
Numerous disability and community groups have raised a range of concerns and compelling arguments as to why this legislation falls short.  In the limited space provided, we address below three (3) points that are critical to strengthening the Bill.  Our silence on the range of other concerns should in no way be interpreted as those issues being any less worthy of attention and consideration. 
Amendments to Strengthen Bill C-22
1.	Amendment to require government to create a Canada Disability Benefit within a timeline
In its current form, Bill C-22 does not require government to create or deliver a Canada Disability Benefit. Section 4 of the Bill requires the Minister to pay an income benefit to persons who meet the eligibility requirements and any other conditions set out in regulations. However, there is nothing in the Bill that requires these regulations to ever be made. Section 11(1) of the Bill states that the Governor in Council may make regulations. The legal effect of this permissive language, “may”, is to give government the power to make regulations for determining eligibility and administering a Canada Disability Benefit, but not actually require this power to be used. Should this government or a future government decide not to create, or to revoke, regulations establishing eligibility for and administration of the benefit, no benefit will be paid.
Given the urgent need to deliver this benefit, persons with disabilities need certainty that the benefit will be created, not merely that it may be created. Furthermore, this amendment will only be meaningful if accompanied by an additional amendment that establishes a timeline for the regulations to be developed. 
ARCH recommends: that the word “may” in section 11(1) be changed to “shall”, and that a timeline be established, as it applies to subsections 11(1)(a)-(k). This amendment would require government to pass regulations within a set timeframe to establish and administer the benefit to persons with disabilities on matters including eligibility, indexation to inflation, appeal processes, and on other critical matters.
2.	 Amendment to ensure an adequate and sufficient benefit amount
Bill C-22 lacks sufficient guidance or parameters to ensure that benefit amounts will be meaningful and lift persons with disabilities out of poverty.  Given the urgency outlined above, it is of utmost importance that the Bill is strong enough, that it aims to achieve Canada’s international human rights obligations set out in the Convention on the Rights of Persons with Disabilities, and that it sets clear parameters for doing so.
Bill C-22 leaves out the important details, such as who will be eligible for the benefit, how much the benefit will pay, and how people will need to apply for the benefit, to be determined by regulations. Given that these details are fundamental, further guidance within the Bill itself is necessary in order to ensure that decision-making by Cabinet achieves the objective of lifting persons with disabilities out of poverty.  
Moreover, the scope of regulatory authority is critically important. It will determine how robust the regulations are, and whether they achieve the legislation’s stated purposes of reducing poverty and supporting the financial well-being of persons with disabilities. ARCH submits that the scope of the regulatory authority and the objectives that the regulations must achieve should be more specifically set out in Bill C-22. 
Recent experiences with the Accessible Canada Act and its regulations demonstrate how the scope of regulatory powers can be very narrowly interpreted. For example, in 2021, during the regulatory development process for the Accessible Canada Regulations, the proposed regulation stated that accessibility plans must include basic information about how the public could contact an organization, how the organization consulted with disability communities, and the organization’s policies, programs and practices in relation to barrier identification and removal. In response, disability communities pointed out that requiring just this basic information would lead to ineffective, perfunctory accessibility plans. Disability communities urged the government to strengthen the regulation by requiring that organizations include more specific, action-oriented information in their accessibility plans, such as: specific, concrete actions the organization would take to remove and prevent barriers; timeframes for taking this action; and performance indicators for measuring whether barriers had indeed been removed. Disability communities urged that this additional information was essential for ensuring that accessibility plans yield real progress towards full accessibility. Despite these calls for more robust regulations, government did not make the requested changes. The government referred to limits on its regulatory authority under the Accessible Canada Act as one of the reasons.  
To avoid this outcome as it relates to regulation development pursuant to Bill C-22, the legislation itself must be very clear about the scope of regulatory authority and the targets of what the regulations must achieve. 
ARCH Recommends: that subsections 11(1)(a)-(k) include targets aligned with the goal of lifting persons with disabilities out of poverty. For example, section 11(1)(c) should be amended to include a minimum standard and language regarding the need for an adequate standard of living, in accordance with Canada’s commitments under the Convention on the Rights of Persons with Disabilities;  and subsection 11(1)(i) should be amended to align with article 13 of the Convention on the Rights of Persons with Disabilities and ensure an accessible, fair, and expeditious appeal process.  
3.	Amendment to require government to meaningfully involve persons with disabilities in the development of regulations
The preamble to Bill C-22 states that the Government of Canada recognizes the importance of engaging with disability communities regarding the development of support measures. The preamble acknowledges that such engagement must be in accordance with the Accessible Canada Act, which requires that persons with disabilities be involved in the development and design of laws, policies and programs. 
To date, the Government of Canada has conducted engagement sessions with some disability communities regarding the Canada Disability Benefit. 
While there have been questions regarding ‘co-creation’ raised during this Committee’s hearings within the context of Bill C-22, it is important to understand that Bill C-22 clearly entrusts the decision-making of regulation squarely with Cabinet. There is nothing currently in the Bill that would allow for ‘co-creation’.   

ARCH submits that Bill C-22 would be strengthened by adding a provision requiring government to involve disability communities in the development of Canada Disability Benefit Act regulations. Some may argue this is not necessary since the federal regulatory development process already requires that there be public consultations on proposed regulations before they are passed. However, recent research and experience demonstrates that such public consultation processes are riddled with barriers that prevent persons with disabilities from participating meaningfully. Consequently, relying on existing regulatory consultation processes is not enough to ensure that disability communities are truly involved in the development and design of the regulations. 

ARCH Recommends: that the Bill be amended to require government to meaningfully involve and include persons with disabilities in the development and design of Canada Disability Benefit Act regulations. This provision should specify that meaningful participation must be fully accessible, ongoing, allow for two way dialogue directly with decision-makers, and is inclusive of diverse communities of persons with disabilities. 

Poverty is complex and requires a holistic response 
In addition to the amendments set out above, and other concerns raised by disability groups, ARCH urges this Committee to consider all possible amendments that strengthen this legislation to achieve its objective. ARCH urges for a more holistic, rather than the current fragmented, approach to disability legislation. We do not have the luxury of considering this one proposed benefit to the exclusion of all the other real circumstances that contribute to poverty, such as lack of access to affordable, accessible, safe housing, and community-based disability services and supports, making the need for harmonization and guarantees against any claw-backs all the more important. Moreover, essential supports and services like these are either not provided, capped arbitrarily, or in short supply leading to high demand and years of wait-listing. A sufficient and appropriate benefit amount will be critical, but not sufficient in many circumstances to cover these deficiencies. For example, an increase in monthly benefits will not lift someone out of poverty if forced to use that increase to pay for attendant services that are not being provided through provincial and territorial programs. While many of these essential supports and services fall within provincial and territorial jurisdiction, there is nonetheless an urgent need for leadership from the federal government. The benefit will not on its own, fully address and resolve the life and death circumstances that persons with disabilities face on a daily basis.