When does a law become law?
To some, it may seem like an esoteric question. But to Jeffrey Salisbury, it is the key to understanding when he may receive a new disability benefit.
The Canada Disability Benefit Act passed and received Royal Assent in June 2023. However, the money may not flow until June 2025 because the law has not been declared in-force.
Salisbury, 39, lives with his parents in London, Ontario and struggles to find work because of his disabilities, which include a developmental delay and depression. He has followed the Canada Disability Benefit Act’s journey through Parliament since it was first introduced in 2021. The act enables Ottawa to create a financial benefit for disabled adult Canadians under 65 that is similar to the Guaranteed Income Supplement for low-income seniors.
The act says it will come into force one year from receiving Royal Assent, or earlier if declared by the government. This means June 22, 2024 at the latest.
Kamal Khera, minister of diversity, inclusion and persons with disabilities, told a House of Commons committee on December 11 that getting the benefit to people “as quickly as possible is a priority.” And yet, she confirmed the law would only come into force in June, with regulations completed a full year later, by June 2025. That will be a full four years since the law was first introduced in Parliament in June 2021.
The coming-into-force provision for the Canada Disability Benefit Act is “unusual,” said Sujit Choudhry, a lawyer with Hāki Chambers Global who represented an intervener in a recent case that considered the government’s duty to declare laws in-force.
When the public sees that a law has been enacted and received Royal Assent, “they assume it is going to come into force,” he said. But without specified timelines, a law may never be declared in force, and the public would not know, he says.
In some cases, the delay has put people’s lives at risk. As The Globe and Mail reported, the Nova Scotia government has for more than a decade delayed declaring a law into force that will require bar bouncers to be trained and licensed. This failure to act has received more scrutiny since December 2022, following a man’s violent death outside a bar, allegedly at the hands of a bouncer.
Once a law has been proclaimed a law through Royal Assent, it must be brought into force, Choudhry says. The part of the law that says when it comes into force “grants the government the power to decide when to bring that law into force, not if to bring it into force,” he said.
“It happens in secret,” Choudhry said. “There’s very little transparency about it.”
If the government decides it does not want to bring a law into force, then the law needs to be officially repealed through legislation, he said.
‘Friction’
The Court of Appeal for Ontario recently emphasized a government’s duty to bring laws into force.
“It would not be open to a minister to decide that an enacted statute will never be proclaimed,” the court wrote in an August decision. The Ontario government had passed a law enabling Canada Christian College to refer to itself as a university. The legislation had received Royal Assent but did not come into force when it received assent.
While the court sided with the government, saying the college had not successfully completed the requirements needed to become a university, it ruled that the government can only delay proclaiming a law in-force if that delay is required to ensure the law is properly implemented.
In Ontario, laws are automatically repealed if they are not declared in-force within 10 years of becoming law.
Laws that do not have clear dates for coming into force speak to the relationship between elected assemblies and ministers, said Paul Daly, a law professor at the University of Ottawa. Legislative assemblies pass laws. But government ministers are given the power to declare them in-force.
When laws give ministers discretion about when they can do that, it creates “friction,” he said.
“It’s not necessarily a point of concern” if a law does not say when it comes into force, said Daly.
“It becomes concerning when ministers take too long to bring provisions into force or fail to bring provisions into force, or instead of bringing provisions into force create some other scheme to deal with the issue that the legislation deals with.”
In some cases, delaying a law makes sense, said Choudhry.
“Often laws require detailed implementation plans, and it’s unwise for them to come into force immediately,” he said.
This is important for benefit programs that take time to develop, he said.
When it comes to creating regulations under the Canada Disability Benefit Act, the government is asking for public input, including on who should be eligible for the benefit and its amount. The deadline for feedback is 11:59 p.m. on January 4.
Meanwhile, in London, Salisbury is continuing to advocate. He created a petition that received 1,767 signatures which asked the government to include the benefit in the 2024 budget.
His prior petition, which had 6,396 signatures, asked Ottawa to create an emergency benefit for disabled Canadians that they would receive while they wait for the permanent benefit. The government denied the request.
Salisbury’s requests to speak with Khera have been fruitless.
Salisbury, who receives a monthly payment of $1,300 from the Ontario Disability Support Program, is not confident he will ever see a cent of the federal benefit. He said he knows there must be negotiations to ensure provincial and territorial disability benefits are not reduced if people receive the federal benefit. But he doubts the political will is there to move this forward.
“If they really wanted to, they could get it done,” he said.
This is a wonderfully clear explanation of an important but widely-misunderstood issue in Canadian law. Thank you!!