Proceedings of the Standing Senate Committee on
Human Rights
Issue 2 - Evidence, February 4, 2008
OTTAWA, Monday, February 4, 2008
The Standing Senate Committee on Human Rights met this day at 5:06 p.m. to examine cases of alleged discrimination in the hiring and promotion practices of the Federal Public Service and to study the extent to which targets to achieve employment equity for minority groups are being met.
Senator A. Raynell Andreychuk (Chair) in the chair.
[English]
The Chair: Honourable senators, this is the Standing Senate Committee on Human Rights. We are here to examine cases of alleged discrimination in the hiring and promotion practices in the federal public service and to study the extent to which targets to achieve employment equity for minority groups are being met.
We have heard from the Public Service Commission of Canada, other related agencies, members of the public and other organizations. We are continuing our study today. We are pleased to have received a very good response from the Canadian Human Rights Commission. We have here with us Jennifer Lynch, Chief Commissioner. I will let you introduce your colleagues from the commission. I trust you have an opening statement. You have been advised of our study and no doubt know of our recent report.
Jennifer Lynch, Chief Commissioner, Canadian Human Rights Commission: Thank you. My colleagues and I are pleased to have been invited here as part of your study on employment equity and discrimination in the Public Service of Canada.
On my right is Hélène Goulet, Secretary General of the Canadian Human Rights Commission. On her right is Natalie Dagenais, Director, Investigation Division. On my left is Alex Dei, Director, Employment Equity Compliance Division. To his left is Philippe Dufresne, Director and Senior Counsel, Litigation Services Division.
Your committee is the only parliamentary committee dedicated solely to human rights. Obviously, the commission and the committee share many common interests. I hope this will be the beginning of an ongoing dialogue.
In this, my first appearance before your committee, I will begin by situating our work in employment equity within our broader mandate and then move on to provide you with some specific updates on our own progress and challenges in employment equity. I look forward to responding to any questions you may have.
First, with respect to our broader mandate, our founding legislation is the Canadian Human Rights Act, CHRA. It inspires a vision for Canada where all individuals should have an opportunity equal with other individuals to make for themselves the lives they are able and wish to have, free from discrimination.
[Translation]
Under the CHRA, our mandate includes resolving human rights disputes and fostering public understand and commitment for human rights through education, policy development and research.
In addition, of course, we have a compliance enforcement mandate under the Employment Equity Act. The two acts, taken together, give us the opportunity to work toward leading shifts in systemic discrimination and society change.
How do we accomplish this? About 100 federal departments and agencies and about 500 private sector employers are within our jurisdiction.
[English]
When I arrived as the new chief commissioner 10 months ago, I was pleased to join a modern organization well structured to undertake its mandate and supported by an enormously talented and dedicated staff.
We organize our work in three core areas: dispute resolution; knowledge development; and discrimination prevention, which includes our employment equity work.
Our Dispute Resolution Branch receives and processes complaints of discrimination on the 11 grounds in our act. In recent years, we have modernized our approach to better meet the needs of those who access our services. Our objective is to resolve disputes in a non-adversarial manner and at the earliest possible stage while ensuring that the public interest is addressed.
The accessibility of our dispute resolution process is a key consideration. Our act requires us to perform a type of triage before dealing with any complaint, to deal only with those within our specific jurisdiction and to not deal with those where grievance or review procedures are otherwise reasonably available. This can be confusing for an anxious person who calls in with a concern. We have designed our intake procedures to be sensitive to this and to provide information and options where possible.
To provide opportunities for mediation or conciliation at every stage of the process is a key part of our dispute resolution system. We have experienced considerable success with this. Once a complaint is determined to be within the jurisdiction of the commission, about half are settled.
Time-consuming investigations and continuing confrontation are minimized through the settlement process. Settlements often lead to a process of healing, as well as systemic changes within organizations.
We are getting better and faster at processing cases. The average age of cases has dropped from 25 months in 2002 to 9.1 months today.
If a case is not settled after an investigation, it goes to the commission for a decision. The commission has two statutory options: It can dismiss a case if it concludes the evidence does not support the allegations; or it can refer the case for a hearing before the Canadian Human Rights Tribunal. About one in seven cases is referred to the tribunal, and many of these are resolved through mediation at the tribunal.
Commission lawyers participate in tribunal mediation and hearings that have a strong public interest. When hearings are held, they often result in decisions that advance human rights law in important ways.
I will next describe our work in the knowledge centre.
[Translation]
A second key area of commission activity is knowledge development. Through research, policy development and special initiatives, we ensure that the Commission can get ahead of emerging and evolving issues, providing research- based advice, and informing and influencing public debate.
Another core activity for us is discrimination prevention. Our prevention activities are aimed at influencing a positive shift in the culture of human rights within those organizations that we regulate. More than one million employees come under our jurisdiction. The commission works with employers to create and strengthen their internal processes for managing human rights issues and to implement training and policies with the aim of preventing workplace discrimination. The commission has entered into memoranda of understanding with many key employers. Cooperation in this regard has been excellent and productive.
[English]
It is within our Discrimination Prevention Branch that our employment equity mandate is implemented. We do this through our audit role within the Employment Equity Act. This act requires employers to address systemic discrimination by taking measures to remove barriers to the employment of the four designated groups.
The goal is to achieve the same level of representation, within each organization, as the level of availability by qualified groups in Canadian society.
Employers under the Employment Equity Act must comply with nine statutory requirements, such as the collection of workforce information, the determination of underrepresentation and a review of employment systems. They must develop an employment equity plan explaining the steps they are taking to meet their statutory obligations.
Initially compliance was voluntary, but, in 1995, Parliament revised the act and mandated the CHRC to ensure that those obligations were enforced through audits.
The commission has a two-stage audit process: Initially, a preliminary audit is conducted to identify the extent to which the employer is complying with the act. To be in compliance the employer must have a plan to eliminate barriers and gaps in the work place. For those areas where there is non-compliance, we negotiate undertakings. Later, we conduct a second progress audit to determine whether the employer has made efforts to achieve progress in increasing representation of the designated groups. If it deems necessary to do so, the commission can seek enforcement through the Employment Equity Review Tribunal.
The experience of the commission in conducting compliance audits illustrates some of the challenges in accomplishing the aims of the Employment Equity Act. Since 1996, the commission has undertaken initial audits of 252 employers. In only a few audits did we find the employer to be compliant without negotiations of undertakings after the preliminary audit.
Here are the statistics on compliance: 90 per cent of employers came into compliance only after the commission had both completed the preliminary audit and reached agreement with the employers to undertake corrective measures.
The balance, about 10 per cent, required commencement of enforcement measures by the commission before employers agreed to take the required measures.
[Translation]
After the preliminary audit, the commission monitors the progress of employers in achieving their short-term hiring goals and long-term representation goals. Our monitoring activities show that few organizations have met all their short-term hiring goals. This demonstrates that employers have yet to fully take on their responsibilities under the act.
On a more positive note, there is evidence that audits conducted by the commission contribute to increasing the representation of the designated groups in the public service. However, representation of visible minorities remains below labour market availability. The positive impact of audits is diminished by the fact that the Commission is unable to carry out audits as quickly as we would like. The workload has increased: the number of employers subject to the Act has gone up by nearly 50% since 1997. Meantime, we have less resources dedicated to conducting audits today then we had in 1997. To address this issue, the commission has reorganized to meet the demands of the changing environment. A new audit process is being implemented. The response from employers subject to the new process has been very positive.
We are currently conducting an objective review of our resource structure to ensure that we are utilizing resources for maximum effectiveness.
[English]
As the committee has rightly highlighted, the level of representation of visible minorities in the Public Service of Canada is unacceptable. Clearly, as your committee's report from last February put it, we are not there yet; indeed, we are not even near there yet. Why is this so?
In your committee's preliminary report, you concluded that a key problem was corporate culture, an integral part of the way the federal public service operates. I completely agree. As our audit experience shows, far too often we have to lead employers reluctantly along the path of employment equity. Rather than seeing employment equity as integral to values and strategic outcome, too often departments see it as another burdensome requirement that has to be met.
Employment equity should not be seen as something within the job description of an employment equity manager to be monitored as a statistic. Rather, achieving employment equity should be articulated in the organization's vision, values and objectives and be supported both in its business plans and through institutionalized incentives, such as performance measurement and accountabilities for all managers. To some extent, the private sector has matured its understanding and appreciation of employment equity. Some private sector employers see employment equity not as an imposition but rather as good business. They realize that having a work force that represents the diversity of their customers helps them to better serve the clientele and maximize profits.
As the recently released 2006 census data reconfirms, Canada is one of the most multi-ethnic, multi-racial nations in the world. In order to better serve all Canadians, our public service must reflect that reality. Having a work force that represents Canadian diversity will help departments to better serve all Canadians.
My colleagues and I would be pleased to answer your questions.
Senator Poy: Ms. Lynch, it sounds as though you have a huge mandate. I would like to figure out how your audit is done. Maria Barrados was here from the federal public service, and she said exactly what you said, that in the visible minority group, the percentage has gone down.
When do you do your audit? Obviously, they are doing it too. Is there an overlap?
Ms. Lynch: To begin with, employment equity audits, also known as compliance reviews, are conducted by the commission in an independent and systematic manner on employers to ensure that they are fulfilling their obligations under the Employment Equity Act. The employers' obligations are detailed in the act and include identifying and eliminating employment barriers, instituting positive policies and practices, and making reasonable accommodations. For implementation, employers are expected to collect information, conduct an analysis and conduct a full review of their systems, policies and practices to identify barriers.
They are required to prepare an employment equity plan. It must specify the positive practices and policies in the short term for hiring, training, promotion and retention. In addition, it must specify specific measures for eliminating barriers, establishing a timetable, establishing short-term numerical goals for hiring and promotion, set out longer- term goals, et cetera.
We regulate all government departments and agencies, and those private sector employers in telecommunications, transportation and financial industries, federally regulated industries, who have 100 or more employees. Those employers increase in number as companies are founded or have more than 100 employees. They are to have an employment equity plan, as I have just described, and we can go in to start auditing after two years.
That being the case, we start with what we call an ``initial audit.'' We go in to see if they are in compliance, which really means whether they have an employment equity plan. It is not whether they are reaching their numerical goals yet. The act allows them to establish short-term goals, which is defined as one to three years. If we see the picture developing, they have two years after forming to having more than 100 employees in the private sector, and then of course they would normally pick the three-year part of the one to three years for their short-term goals.
We then do a preliminary report as to whether they are in compliance. After a period of time, we will go back and conduct a progress audit to determine how they are doing if they have made reasonable efforts. Section 12 of the act states that every employer will make all reasonable efforts to implement its employment equity plan and monitor implementation. We do a progress audit after that. This is our role and what we do.
Senator Poy: Is there an overlap? You are actually looking at their report.
Ms. Lynch: No. That is what we are doing in terms of auditing. We have the statutory mandate for an audit. In the federal public service, the Treasury Board, via the Canadian Public Service Agency, and the Public Service Commission jointly assume the employers' responsibilities. Therefore, the Public Service Commission is accountable for the appointment of qualified persons, and they audit how departments use these appointment authorities. That is very different from, in essence, the laundry list I read to you of the process that an employer must follow. They are looking within the public service about the appointment of qualified persons, and that is the form of audit that they do.
Senator Poy: Where does your commission come in in a case such as that?
Ms. Lynch: It does not come in. We have a separate audit related to the numerical goal: Is there an employment equity plan? Does it address the matters listed in the Employment Equity Act? We are not looking at the Public Service Employment Act.
Senator Poy: What is happening, now that the only designated group not reaching the goal is the group of visible minorities? Is your job to designate what the employers should be doing?
Ms. Lynch: We start with looking for the employment equity plan, and, of course, the employer can announce that they will be engaged in positive practices, positive policies, et cetera.
We have, in our other prevention work, started to build a memorandum of understanding with employers. We have created an employer advisory council. This council gets together to share best practices. We can step forward and help with the opportunity of sharing of best practices. However, as the auditors, we do not ourselves propose practices to them.
Mr. Dei, the Director of the Employment Equity Compliance Division, may very well have more he would like to add.
Alex Dei, Director, Employment Equity Compliance Division, Canadian Human Rights Commission: Because of the audit process we do, we do identify deficiencies that we notice in the audit work. As part of the work we do, we can ask the employers to meet certain requirements, as my chief commissioner has said, which would include deficiencies in hiring practices. We look at positive practices, measures that could be taken; for example, we talk about ways that we can advertise to reach the targeted groups with which we are dealing.
Our work really deals with four designated groups: women, Aboriginals, visible minorities and people with disabilities. We can suggest to the employers that we would prefer that they do certain activities to increase the representation levels. One of the key ways to do that is through the elimination of barriers to employment. That is the process we use.
Senator Poy: Even if you see the numbers decreasing, there is not really very much you can do. Is that the answer?
Ms. Lynch: Our mandate is, first of all, to conduct the audits, and then we can negotiate undertakings if we feel there are deficiencies. If we either cannot negotiate the undertakings or they are breached, we can issue directions. If we issue directions and they are breached et cetera, we can refer to the Employment Equity Review Tribunal.
However, I would like to refer you to subsection 22(2) of the Employment Equity Act, which says:
The Commission shall, in discharging its responsibility under subsection(1) , be guided by the policy that, wherever possible, cases of non-compliance be resolved through persuasion and the negotiation of written undertakings pursuant to subsection 25(1) and that directions be issued under subsections 25(2) or (3) and applications for orders be made under subsection 27(2) only as a last resort.
We do the audits, and we negotiate undertakings. Our mandate is more persuasive. A big question at any time is how to define a last resort.
The accountability for increased representation is with the employer, which takes us, within the Canadian public service, to the Treasury Board and the shared responsibility with the Public Service Commission.
Senator Poy: Do you normally only deal with the employers? Can employees come to you for dispute resolution?
Ms. Lynch: Thank you for that question. Traditionally, we have been known — almost exclusively — to process individual complaints for discrimination, and that is a very large part of the work that we do. That falls under the Canadian Human Rights Act, which seeks to give effect to the principle that every individual has the right, equal with others, to make for themselves the life they wish to and are able to have without discrimination based on 11 grounds. We receive complaints from individuals, and sometimes groups, based on any one of those grounds of discrimination, and we process them through a specific methodology.
Our commission went through a metamorphosis in the last few years. We are very innovative in offering dialogue and mediation, alternative forms of dispute resolution, even before we receive a formal complaint. We have some marvellous success stories about helping people come together to resolve their differences, without the need for a formal complaint. Yes, we do receive individual complaints.
Senator Poy: Do individuals go to the provincial human rights commission before coming to you, or can they come directly to you?
Ms. Lynch: It is a very complicated area. The Canadian Human Rights Act mandate stems from two things. Is the matter a ground of discrimination enumerated in our act? They are race, age, sex, sexual orientation, religion, national origin, colour, family status, marital status, disability and conviction for an offence for which there has been a pardon. If it is one of those grounds of discrimination and if it relates to an employer or service provider that is either a government department or agency, or one of these employers from a federally regulated industry with more than 100 employees, then we can take the complaint.
We are in Ontario here, so giving that as an example, if a person has an issue and it is one of those grounds of discrimination related to service or employment by one of those organizations, then it comes to us. If it is about something else, it would most likely go to the provincial commission.
Senator Jaffer: Thank you very much, Chief Commissioner and all of you. From your comments, we as a committee can see that we are looking at ways to work together to improve the situation. My questions to you will be in that light of how, together, we change. You mentioned a number of issues upon which I may need clarification.
Senator Poy asked you about auditing, and maybe you can explain. Is there an audit for hiring practices?
Mr. Dei: I will try to explain it this way. The audit work we do is really geared toward measuring the level of representation, levels that we have for the four different groups. We use nine criteria as per the Employment Equity Act to determine these. To some degree, we do not really go into those levels of specifics. We look to see that the employer has been able to establish to us that they are making efforts, starting to eliminate barriers to employment. Hiring practices, for example, fall in that category. Therefore, yes, we do it in that sense. I do not know if this answers the question.
Senator Jaffer: Yes, it does answer the question because how and where they are hired sort of helps to retain people. You do look at that. Is that my understanding?
Mr. Dei: Yes, we do.
Senator Jaffer: Many words have been used, and I am happy you gave a definition of ``discrimination,'' Chief Commissioner. Could you give a definition of ``systemic problems'' within the Public Service Commission on these issues of hiring?
Ms. Lynch: By all means, we will do our best. This stems from section 10 of our act. Mr. Dufresne, the director of our legal services, will answer.
Philippe Dufresne, Director and Senior Counsel, Litigation Services Division, Canadian Human Rights Commission: The Chief Commissioner mentioned that we have jurisdiction under two acts, the Canadian Human Rights Act and the Employment Equity Act. Under the Canadian Human Rights Act, complaints of discrimination can be filed with the commission either with respect to employment or services. Under employment complaints, individuals may file what we refer to as systemic complaints or policy complaints. Those would be complaints where the allegation is that the discrimination is not solely in a specific case but rather flows from policies or systems and has an impact on a broader group of employees in a given workplace or in a given industry. Pay equity would be an example of a systemic type of discrimination, where the issue is practices that, over time, have an impact against women.
Employment under the Employment Equity Act, when dealing with issues of underrepresentation, also has a systemic aspect to it. However, when we refer to systemic discrimination, we most often talk about, under the Canadian Human Rights Act, complaints under section 10 or other sections that affect a group, an industry or a system.
Senator Jaffer: That is very helpful. Can you please tell me, then, what you have identified as the systemic problems for visible minorities under that?
Mr. Dufresne: From the standpoint of the Canadian Human Rights Act, we deal with complaints that are filed, so it is difficult to speculate as the types of situations. We have certainly had systemic complaints filed with the commission and referred to tribunal that have given rise to decision of the tribunal. We can think of examples such as policies that have a discriminatory impact on persons with disabilities because it makes it difficult or impossible for persons with disabilities to work in a given workplace, and similar situations involving race or sex. If it has an impact on a group, then that would be identified as a systemic discrimination.
Senator Jaffer: Have you identified anything in particular as a systemic discrimination against visible minorities?
Mr. Dufresne: We have seen situations, for example, at the Canadian Human Rights Tribunal, such as a decision of the tribunal finding an employer using a criterion such as dismissing or not hiring individuals who are overqualified for the job. A case went to the tribunal where a person who was a visible minority could not get a position. The person was qualified — in fact, was overqualified — for that position, and there was a belief from the employer that because of that overqualification this person would become bored with the job, would be unsatisfied and would have a tendency to leave, which would be a problem for the employer with respect to maintaining staff and limiting turnover. In this case we, the commission, participated, made submissions, brought in an expert and the evidence was accepted at the tribunal that a criterion such as that, although it appeared neutral, had an adverse impact on visible minorities because visible minorities tended to be overqualified for jobs, for which there were a number of reasons. This was identified as a problem. This decision of the tribunal now states that it is against the Canadian Human Rights Act to use such a criterion.
Senator Jaffer: Your paper, Chief Commissioner, has been very useful. I know we will be referring to it. On page 7, the last paragraph, on a very positive note you say that there has been improvement in the representation of designated groups. Unfortunately, we cannot have the same kind of joy about visible minorities.
Have you identified why visible minorities are falling backwards rather than moving forward?
Ms. Lynch: I will start by saying that it is not within our mandate to identify why. Many witnesses who have come here have given their opinions about the reasons why there is this gap. Some of the reports, such as Embracing Change, for example, had some useful recommendations. In my opening remarks, I referred to something I have not heard referred to exactly that way before when I talked about institutionalized incentives.
An example of an institutionalized incentive would be when you build into the performance bonuses of deputy ministers; yet there are a number of other institutionalized incentives that could be brought to bear, some of them more in the form of encouragement rather than enforcement, if you will. For example, we know organizational change can be brought about when people are encouraged to engage in pledges or commitments. We have seen that most recently with Indian and Northern Affairs Canada and the Assembly of Manitoba Chiefs, where Indian and Northern Affairs Canada has committed to hire 50 per cent Aboriginals. That type of pledge or commitment can be key.
I would like to introduce the language of integrating employment equity into daily practice. Departments can have overarching articulations of this; for example, rewording mission statements of values, and even such small things as standing agenda items to check on how we are doing so it is not an annual, sudden thing.
The recognition and awards are also important. Of course, there can be other creative financial incentives that are not necessarily tied to pay. That is something that I might suggest be looked at: other forms of institutionalized incentives other than just performance pay.
Might I have a couple of minutes to touch on culture change? We talk about the need for a change of culture. Most of the dialogue on this has been around what I might call one of the least inspiring drivers of change, which is compliance. I often talk about drivers for change as the five Cs: compliance, cost, competition, crisis and culture.
When we talk about compliance, that would be, for example, our role, employment equity audits. This is what we have mostly been relying on. We have been saying that this is the requirement of the Employment Equity Act, so it must be done, and that is least likely to inspire employers. Employers will find most of their inspiration in cost, competition, crisis and culture. When we take cost, competition and crisis together, this is what we have normally been hearing as part of the business case. It is the cost of not doing this — the need to compete for the best talent and the oncoming crisis in the demographics of our aging population are very valid. However, most recently in your report, Not There Yet, and in some witness testimony, as I have mentioned, there is a growing conversation around organizational culture. I believe that this change in culture, that fifth C, is really the key, the missing piece.
Why would I say it is the missing piece? I copied out one of the points you made in Not There Yet. You related this to such areas as confronting discriminatory attitudes, finding ways to address emotional or psychological resistance and fostering a supportive workplace that is understanding of differences.
I agree, and I would add another critical piece around culture that might serve to address the resistance. It starts with how we have modernized our front line business delivery models today. If we are the police, we engage in community-based policing. If we are tax collectors, we no longer just scoop the money out of the bank account; we use a cooperative problem-solving model. If we run prisons, we work with communities in a restorative way to prepare the community for the safe reintegration of the offender. If we are judges or quasi-judicial officers, we engage the parties in dialogue and mediation. If we are in banking, we appoint bank ombudsmen, emphasize customer satisfaction and seek out customer complaints. As I mentioned when I read section 22 of the Employment Equity Act, even in our enforcement powers, we must be guided by negotiation and the practices of persuasion.
Where am I going with this? We have changed our front line business practices toward a cooperative, problem- solving culture rather than a take-it-or-leave-it culture. These new cultures have in common that they are based on creative, inclusive dialogue, partnerships, how we treat people, how we solve problems and make decisions. They also include ensuring that the front line reflects Canadian culture and diversity; yet, some, many whom we regulate, have lagged behind in aligning their internal business cultures to reflect this creativity, this inclusiveness and diversity. Organizations need to integrate culture, diversity and the creativity it brings throughout the entire organization, not just at the front line and not just at the deputy minister level, but at all line levels. When this alignment and integration is achieved, then the organization has the highest likelihood of success with its corporate objectives. When it is not achieved, the front line senses this. It senses misalignment, becomes disenchanted and demoralized and goes back to its old ways or quits, and we have a problem with retention.
When leaders understand this, the penny will drop and employment equity will be fully integrated within our systems.
I do encourage conversation around culture change. It is way beyond overcoming resistance to persons who are not like us, as one witness said; it involves understanding how important integrating the diversity, the inclusiveness and the collaboration is to the entire organization.
Senator Jaffer: One of the areas you cover is discrimination prevention.
Ms. Lynch: Yes.
Senator Jaffer: How would the report card look if you were sitting with the minister or deputy minister? What would you say to him about visible minorities? You said such very warm things earlier about how you are trying to change the culture, which makes a person such as me feel very good, but it does not turn into results. We are still sliding.
Ms. Lynch: What you may call a report card and what we create as a report card might be two different things. We are better able to give statistics that relate to the work we are doing. Around audits, we see slower uptake than we would like on the development and implementation of employment equity plans. When there seems to have been limited progress, the question is how we can accelerate that progress. At this point, the commission cannot state whether the limited progress achieved by employers is due to the fact that they failed to make all reasonable efforts as the employment equity states to implement their plans, or if there are other factors that come into play, such as reorganizations, adverse economic climate, layoffs, et cetera. At best, we can hope to study these issues. We would not be creating a report card per se that would answer to all of the issues you might like to find in that report card.
Senator Munson: You talked about slower uptake. Is there systemic discrimination or racism in the public service?
Senator Oliver: You have answered this already.
Ms. Lynch: I am thinking about my answer. I was considering some of these numbers over the weekend. There has been progress. I found very encouraging, and I might almost say quite remarkable, the conscientious practices and efforts being made by those who represent the employer — the Public Service Commission, when Ms. Barrados came to speak with you and the Canadian Public Service Agency. I heard passion and commitment there. As you have seen, there are a myriad of positive practices and policies being moved forward. I see a very positive animus within the public service. Therefore, Senator Oliver, with the greatest of respect, the fact that I was pausing to think about my answer was not to answer it in the affirmative. I feel we are seeing enormous commitment.
We do not study and cannot comment on why there is a downward trend, for example, for recruitment. I know you want me to be crisp, Madam Chair. When we send cases to the tribunal, I have some statistics related to what comes to us as a complaint in systemic discrimination and what goes to the tribunal. We sent, in 2005, 102 cases to the tribunal, of which 29 included an allegation under section 10; and in 2007, we sent 136, of which 76 included an allegation of systemic discrimination. However, of those 76, 56 were on one issue, which was retirement age for pilots; and therefore, there is a big chunk there. Again, that is not the public service; these are our federally regulated industries, so there are not a huge number of cases that come through us and go on to the tribunal.
Senator Munson: You alluded to this on the corporate culture aspect. In your opening statement, you made reference to the fact that you have to lead employers reluctantly along the path of employment equity. Is this just the old boys' school that is around? Is there an opportunity in this generational change within the public service of an opening of narrowing these gaps with perhaps older public servants leaving and a new generation that seems to have a much more positive attitude toward each other instinctively in this day and age?
Ms. Lynch: Yes, there is a definite opportunity. As I said, the culture of collaboration, dialogue and cooperative problem solving, we see it with enormous success with our employer advisory council. It would come as no surprise that employers feel much more inspired by finding opportunities to do better and be educated.
Of course, the education and training aspect of the Employment Equity Act is the responsibility of Human Resources and Social Development Canada, HRSDC; it is not ours. The fostering of education and understanding about anti-discrimination and the purpose of our act is our mandate; and within that, we work with employers, and there is enormous interest, so my answer would be, yes.
Senator Oliver: What amendments or changes would you like to see added to your mandate and to your legislation so you could do a better, more effective job?
First, I want to commend my Senate colleagues for the superb questions that the three of them asked. They went right to the meat of it, particularly Senator Munson, and I congratulate them for that.
It is my opinion that your bill, your statute, has no teeth; that you are understaffed; and that the bill is drafted in such a way as to make you fail in trying to carry out your mandate.
You have 1 million employees, 100 federal departments and agencies of which you are in charge and 500 private sector employees. How large is your workforce? How many people are on your employ to do this work?
Ms. Lynch: We have 16 people in our employment equity division.
Senator Oliver: Is that enough?
Ms. Lynch: No it is not enough. We are also engaging, where relevant, people from our dispute resolution branch and other parts of our prevention branch, such as the employer advisory council group. We also, of course, do what research we can and are supported by our knowledge centre. It is quite a modern structure, and it works very well. We have 16 people in Mr. Dei's branch.
The Employment Equity Act specifies a review every five years. The review is due now — slightly overdue — and we are preparing for it. We will not be leading any initiatives for changes to the legislation. We have instituted new practices, and we are of the opinion that we can carry out our mandate by using the powers given to us within the existing legislation. The principal carriage of this act is with the minister of HRSDC.
Senator Oliver: You are not seeking any amendments or changes whatsoever because you feel with your 16 people you can do the job, is that correct?
Ms. Lynch: Of course, the allocation of resources does not come from the act. We are right now, because of these issues, undertaking a review of our resource base, and we may be applying for future money and funds. An independent review is being taken to determine if we are effectively using all our resources in the commission. Resources are certainly an issue worthy of examination.
The leading of an initiative for legislative change is an extremely resource-heavy initiative. We have engaged in a reorganization of our commission and a new and modernized audit process. We want to give it time to work.
In this particular tranche, where there will be a review of the legislation, we will not be leading any initiatives for amendments. That is not to say that in the future we would not turn our minds to a huge overview of the legislation, but not at this specific time.
Senator Oliver: You say that in cases of non-compliance your statutes tell you that you are to use persuasion to try to resolve it.
However, it is my opinion, having dealt with racism for over 50 years in the public service and elsewhere, that you have to have a club, and persuasion is not enough to change systemic racism in the public service. That should be changed, and I am surprised that you do not want that changed.
Many of the words for the resolution of disputes have no teeth. The business about institutional incentives, such as doing something about the bonus for deputy ministers, has been there for some time and does not work. There is ample evidence to indicate that everyone gets their bonus, notwithstanding the fact that some have not been compliant.
That does not work. There is no club or teeth. Being understaffed — it seems to me that you need more staff — I wonder if your mandate is not too big and if it would not be better to pare it down to be able to more fully carry out the key cores of the objects of the statute.
You said that you can see an enormous commitment being made by the public service, but if you read the transcripts from many of the witnesses who have appeared before this committee this year, last year and the year before, an overwhelming group of them say that there are serious systemic problems that have to be changed. It is there.
Most of them do not use the word ``racism,'' but it is racism that prevents visible minorities from progressing in the public service. As the Human Rights Commission, with the main job of enforcing it, you have to have better teeth and better enforcement mechanisms.
I was hoping to hear some of the actions you believe you could take to help enforce and break down that systemic racism.
Ms. Lynch: Your comments are very important. The mandate we have is very restricted. We are compliance review auditors. You are quite right that the language of the act that retains within it such wording like ``as a last resort'' has not yet been tested in court. The meaning of ``a last resort'' is something that is not clear to the employer, and we have not had cases go to the tribunal as a hearing. Some cases have gone forward because we can issue directions, and then we can move cases to the tribunal. However, the cases have not actually gone to hearings.
In the role that we specifically have in compliance audits, we are consciously working with a new model that we believe will embrace more employers and more employees, and we will be able to get back with the progress audits. This is the role that we have been given within the statute to play.
Therefore, we cannot propose other solutions other than those that relate to our mandate.
Senator Oliver: I do not want to push you on that.
A number of witnesses have come before this committee, and they talk about the Human Rights Commission and delays in having matters heard. You have attempted to address the issue of delays with the statistics you gave us today. However, it is my view, as someone who used to be a lawyer, that justice delayed is justice denied. If people have to wait five months, six months, a year or two to have cases resolved, particularly when it involves their employment and promotion, that is too long.
What can be done to get these time periods down even farther so there is not a denial of natural justice to so many people in the public service?
Ms. Lynch: I agree with you that the faster we can handle issues, as long as we are handling them appropriately, the better.
We are working on a number of levels. First, we are engaging senior resources at the front end to engage in dialogue so that even a formal complaint does not have to be filed. In fact, last year we received approximately 12,000 inquiries, and we had only a few hundred complaints. Part of this is as a result — and it is the complex national program in human rights, if you will — that we can only take those complaints for which we have jurisdiction. Therefore, we have to create this triage to determine whether we have jurisdiction. There is a time limit as well. Is there another process reasonably available? A vast majority are triaged in that manner.
We are conscientious with every complaint in determining how quickly we can engage in dialogue and deal with it. We are monitoring those statistics at all times, while being sure that we engage in due process and justice for each individual case.
The other issue is that we do not want to speed up cases at the risk of reducing the service that is being provided.
The issue is in dealing with front-end dialogue mediation, but even before that, it means working with employers so the discrimination issues are raised and dealt with well and prevented within the employer group.
Senator Oliver: One witness before this committee told us that a number of people who have legitimate complaints will no longer lay them because of the delays. Therefore, they are going without a remedy.
Ms. Lynch: I am familiar with what that witness said. Of course, we cannot know that because we only know what comes to us. We have taken a number of steps that we know create better timing statistics for us. I mentioned those in my opening remarks.
Our results are very encouraging, and yet the statistics are there. Imagine processing 12,000 inquiries, for example. It does take time. However, we move quickly with each inquiry and assign an investigator often within a matter of days.
The Chair: Thank you, Ms. Lynch and your colleagues, for appearing today to begin a dialogue with us. I will assure you that in the Senate, the one thing we have going for us is that we do continue our studies. We do not intend to file one report and go away. We will persistently continue on this issue.
Some of us around the table, Senator Oliver, know we started with education, and it appears now the emphasis is on audit. Our questions are around whether audits produce the results. We will be struggling, and we ask you to struggle with what the next step should be.
To have a systematic way to look at the issue and identify the problem does not make the problem go away. It is still a problem, and we are here to look for solutions that will change the face of the public service and deal with this problem once and for all.
We are worried, as Senator Poy has indicated, about the backsliding. We trust you are sufficiently worried about that; every Canadian is worried about that. We grapple with this situation in a more constructive way to find a solution. We will all be better off for it. We thank you for the information, and the openness and frankness of the dialogue.
We continue our examination of cases of alleged discrimination in the hiring and promotion practices of the federal public service and to study the extent to which targets to achieve employment equity for minority groups are being met.
On this panel we have, from the Public Service Alliance of Canada, Mr. Ed Cashman, Regional Executive Vice- President; and with him is Ms. Lisa Addario, Employment Equity Officer. Welcome.
We also have The Professional Institute of the Public Service of Canada, PIPSC, represented by Gary Corbett, Vice- President; and by Al Ravjiani, Ontario Regional Director and Chair of the Human Rights in the Workplace Committee. Ms. Allison Pilon, Research Officer, is also here with them. Welcome.
We would like you to make opening statements as brief as possible. As you can see from our previous panels, the best exchange comes when we can exchange questions and answers between senators and the panels, and we would like to leave time for that.
[Translation]
Ed Cashman, Regional Executive Vice-President, Public Service Alliance of Canada: Thank you for the privilege of addressing this committee on hiring practices in the federal public sector.
PSAC is the sixth largest union in Canada representing over 150,000 workers in every province and territory. Our members work for federal government departments and agencies, separate federal employers, federal Crown corporations and agencies, the governments of the Yukon, the Northwest Territories and Nunavut as well as a variety of other public and private sector employers.
We represent the overwhelming majority of federal public sector workers in Canada. I am pleased to have the opportunity to promote and build support for equity in the workplace, and to share with you our vision of an agenda for action.
I propose to begin by highlighting the issues currently facing persons with disabilities in the federal public sector. Recently, the Canadian Human Rights Commission released its 2006 Annual Report which contains data on recent hires into the government.
If I can just back up for a moment, we often hear that the federal government is meeting its targets in respect of representation of persons with disabilities. The 2006 Annual Report confirms what we have heard anecdotally from our members for many years: that the number of persons with disabilities who are hired into the government is below their labour market availability rate.
In other words, the federal government is meeting its legal obligation not through proportional hirings, but through injury and illness of workers on the job. Notwithstanding or perhaps because of their disability, persons with disabilities are not being proportionally hired. Persons are evolving into persons with disabilities over the course of their careers. In our view, this situation warrants your attention, because it does not respect the rationale for employment equity — to overcome persistent historical discrimination.
I would like to move on to another part of the report.
[English]
We would like to come back, perhaps in the question-and-answer period, on the issue of the Canadian Human Rights Commission. We have strong views on that as well.
I will now turn to the issue of our racialized members. First, a note about terminology: The word ``racialized'' was the term of choice for the 1995, Report of the Commission on Systemic Racism in the Ontario Criminal Justice System. It reflects the agency of a more dominant party foisting on someone their views of the person as ``racially visible,'' ``visible minority'' or simply ``other.'' It allows racialized people to express that this label has been something attached to them by someone else; it is not of their choosing, nor is it the way they see themselves.
We are all familiar with the data around the representation rate of racialized people in the federal public sector. The most recent data comes to us via the Canadian Human Rights Commission and again racialized people are under- represented, with 8.6 per cent representation. The federal government uses a labour market availability of 10.4 per cent, based on the 2001 Census.
We believe this is sugar-coating the problem. First, the labour market availability data is quite out of date; second, although it excludes non-citizens, most landed immigrants get their citizenship status within three years; and, third, according to Statistics Canada, by 2017 one in five Canadians will be visible minorities. How will the government square this with a representation rate of 8.5 per cent?
When they had to account for their failure to achieve their goals under the Embracing Change Initiative the government said that it was the fault of the hiring managers, that more needed to be done to convince hiring managers that hiring visible minorities makes good business sense. Then what? The following year, through the Public Service Modernization Act, PSMA, the government increased the discretion to hiring managers while decreasing their oversight.
The effect has been compounded by the rise of casual employees at work in the government, often hired through temporary help agencies. An equally disturbing part of this equation is that through casual employment many employees eventually move into permanent positions in the government.
The president of the Public Service Commission, Dr. Barrados, who has appeared before this committee, recently estimated that over the last eight years about 60 per cent of indeterminate hires had previous experience as temporary or casual employees. As she put it, they look to hire the people who know the job best, and — surprise, surprise — it is someone who has done the job before. We will return to this issue in our recommendations.
While I have your attention, I would like to turn to the remaining designated group members, Aboriginal people and women. According to the 2005 Public Service Employee Survey, Aboriginal employees reported discrimination and harassment in huge numbers; 33 per cent of Aboriginal employees reported harassment, an increase from the 30 per cent who had reported harassment in 2002, while 29 per cent of Aboriginal employees reported experiences of discrimination in 2005, again, an increase from 2002.
The so-called good news of the number of hirings of Aboriginal people is that it is almost completely neutralized by the number of Aboriginal people who are leaving the federal government; 4.3 per cent of all new hires into the federal government in 2004-05 were Aboriginal, however, in that same period of time, 4.1 per cent of all separations from the federal government were Aboriginal. That is not an impressive net gain in our view.
Two thirds of all Aboriginal employees work in a department that has a legislative or policy mandate related to Aboriginal people — Indian and Northern Affairs Canada, Correctional Service of Canada, Health Canada or HRSDC. That is what we mean when we talk about the ghettos.
I would now like to turn to women in the federal public sector. We know based on the data that women comprise 53.5 per cent of workers and, therefore, are often regarded as represented in the workplace. However, they are only 37.2 per cent of employees in the management category, only slightly up to from the previous year. When we couple this with similarly low numbers for persons with disabilities, Aboriginal people and racialized people in the management category, it becomes clear that our members work within conditions and a workplace environment established by these same managers. Moreover, this is the level that sets policy and services for the public. Suffice it to say that if this level is not representative, then the government as a whole risks losing touch with its mandate.
Employment equity is about more than representativeness, of course, it is also about employment policies and practices that serve as barriers to hiring and promotion. I would be remiss if I did not bring to your attention the issue of women within government who are being discriminated against on the basis of family status. This takes the form of the employer's failure to accommodate women with such modifications as variable shifts in order to allow them to care for their children and families. It is easy to imagine though that women who are, by and large, the de facto caregivers in our society will seek accommodation for the elderly relations for whom they are increasingly responsible.
How big of a problem is this? As I approached this submission, I had in mind the demographic changes that we are facing as a society: a bulge in the number of aging people, followed by smaller numbers of their children in the workforce. The birth rate has steadily declined over the last 40 years, in other words, fewer workers to shoulder the burden or the responsibility of their elders' care.
The point is that as the female parent, women are required to strike a balance between family and work demands typical in our culture. The failure to identify such policies as inflexible work schedules as barriers to the hiring and promotion of women is again the failure of employers to meet their employment equity obligations.
We have also attached to our document a series of recommendations: First, the government's recruitment strategy of persons with disabilities into the federal public sector should reflect the labour market availability rate.
Second, the government should implement a central agency-wide reintegration strategy return-to-work protocol that addresses the accommodation of workers with disabilities in a timely fashion.
Third, a joint committee of bargaining agents and the employer should be formed with a mandate to give direction to staffing procedures on employment equity measures and the use of casual employees.
Fourth, managers should be held accountable for meeting their employment equity targets. Further, data should be publicized to establish how many managers have been denied their performance bonuses because they failed to meet departmental employment equity targets.
Fifth, data should be provided on the numbers of equity group members being hired in each department and agency, the occupational grouping, the tenure of the position, including information on workers who face discrimination on multiple grounds.
Sixth, and last, the government should establish and implement policies that affirm the principle that workers have a fundamental right to care for their families.
Gary Corbett, Vice-President, Professional Institute of the Public Service of Canada: Thank you for providing us the opportunity to speak to your committee on this important issue.
The Professional Institute of the Public Service of Canada is a union that represents 55,000 public sector professionals across the country.
The Chair: I know I said that you should be short, but not too fast because we have translation. We do have the document, and we will go through it. If we do not capture everything now, we will either ask you in written form or invite you back. Hit the highlights.
Mr. Corbett: Over 40,000 of those professionals work directly in the federal public service. We represent IT professionals, scientists, auditors, architects, doctors — the professional cadre.
My first point is in regard to the levels of representation of the employment equity groups in the federal public service. This committee has heard that the federal public service as a whole is doing well with respect to the representation of women, Aboriginals and people with disabilities. However, these are broad national figures being reported, and they do not reflect the whole picture or the uneven distribution of members of designated groups. For example, according to the most recent figures available, while women hold 53 per cent of all public service jobs, they only hold approximately 38 per cent of executive positions and only 42 per cent of scientific and professional positions. For the other equity groups, the figures also vary widely when one looks more closely at how they are distributed within the public service. That being said, it is clear, as this committee has heard from other witnesses, that the most serious problem is with respect to representation of the visible minorities, especially in light of the recent figures that show recruitment of visible minorities is down from previous years.
I will turn my focus to the few issues that, in the institute's view, present significant barriers for visible minorities that must be addressed if the public service is to be truly representative.
An example, as mentioned by my colleague to my right, is the widespread use of casual workers and term employees. A considerable barrier, in our view, to recruitment of visible minorities is the fact that the recruitment into the public service is rarely into permanent positions. The Public Service Commission's 2006-07 annual report noted that, over an eight-year period, 75 per cent of indeterminate employees hired for the permanent workforce had been either casual workers or term employees.
As Ms. Barrados presented here earlier, these casuals and term employees are often hired through personal networks, and they are hired locally rather than through national polls. This type of hiring excludes visible minorities, and other employment equity groups, because people within these groups do not have the connections and/or network to get their foot in the door.
It is our position that little or no progress will be achieved in providing permanent employment to members of employment equity groups while the federal government continues its widespread use of casuals and terms. While we recognize that there is a place for short-term hiring, it is clearly being used as a way to get around the regular staffing processes.
Another issue is access to language training. We are concerned that some aspects of the official languages policy, combined with the lack of language training, may be creating a barrier for the recruitment of visible minorities into the public service and to the current mobility of visible minorities who are already employed within the public service. According to the report prepared for the Office of the Commissioner of Official Languages, while 18 per cent of all Canadians speak both official languages, that number is only 11 per cent for visible minorities.
In the 2005 Public Service Employee Survey, 20 per cent of visible minority employees identified a lack of access to language training as a barrier to current advancement as compared with 16 per cent for employees overall.
The institute supports the goal of the Official Languages Act, and we do not take issue with the requirements for fluency in both languages in various jobs across the public service. However, the bilingual imperative requirement for many jobs means that otherwise-qualified visible minorities who do not meet the language criteria will not be screened in. It is our position that where employment equity groups exist, room must be made to hire these candidates and allow them the opportunity to train to meet those language requirements.
Further, our members contend that language training is simply not available for promotional opportunities. Many high-level professionals and managerial positions within the public service are designated bilingual imperative. Therefore, lack of access to language training effectively closes the door to career advancement in many cases. The provision of language training is, therefore, critical in order to break down the barriers for visible minorities within the public service.
Another element is the recognition of foreign credentials. A demographic shift is occurring in Canada as the population ages. The labour force is facing a crunch as baby boomers begin to retire, creating a labour shortage. Due to the low birth rate, immigration now accounts for about two thirds of the population growth in Canada. Most of the new immigrants to Canada are from Asia — including the Middle East — Central and South America, the Caribbean and Africa, with a minority coming from Europe.
In years to come, the federal government will face increasing competition for professionals. As competition for talent increases, there will be a greater need to tap into the currently underutilized resources of new Canadians.
A significant problem exists with respect to the underemployment of immigrant professionals in Canada. One Statistics Canada study concluded that, in 2001, more than half of foreign trained engineers in Canada work in technical jobs or jobs unrelated to engineering.
One reason foreign trained professionals often cannot get work in their field in Canada is their qualifications may not be recognized by the professional licensing bodies or by potential employers. This highlights the need for funding to assist such professionals to earn Canadian accreditation in their field through training, internships and financial assistance for required studies or exams. The new Foreign Credentials Referral Office is an example of a new initiative that provides some assistance to internationally trained professionals in learning how to gain Canadian credentials, but additional programs and funding are required.
Another issue is the requirement for Canadian experience or Canadian education, often used by managers as a job screening criteria. This requirement presents a clear barrier to foreign-trained professionals, many of whom are visible minorities. These conditions are often not imposed at the upper level where qualification standards are set, but rather are added to the job poster by the hiring manager. Clearly, there is a need for training and awareness at the lower management level in order to reduce and remove barriers created by such requirements.
In conclusion, these are just a few of the many concerns that the institute has with respect to the barriers to employment equity groups and, in particular, to visible minorities. As a bargaining agent, we are somewhat limited in our ability to make changes within the public service. We consult and collaborate with the employer on employment equity issues; we make recommendations; and we represent our members with respect to employment equity and human rights issues. Currently, we are working with the Canada Public Service Agency in developing a framework for the hiring of new immigrants.
In addition, the institute has a number of initiatives aimed at improving our ability to address these issues, such as increasing the availability of employment equity and human rights training for our own stewards in-house and the development a number of different educational resources and materials for our members. Currently, the institute's committee on human rights in the workplace is collecting and reviewing departmental equity plans for future consideration, and we are also working in partnership with groups such as the National Council of Visible Minorities and other bargaining agents so we can collaborate on the issues.
I thank you very much for your attention and look forward to your questions.
The Chair: Thank you for your presentations.
Senator Munson: Mr. Cashman, in your prepared statement, you said this rather sweeping statement, and I would like to get clarification on this. You said, ``the government knew full well that hiring managers were a barrier to achieving employment equity and knowing this, they gave them authority to establish their own needs.''
We have heard different types of testimony on managers and so on. However, would you not give the manager the benefit of the doubt if it is someone who is progressive enough to try to fulfil a mandate of dealing with equity problems in the public service and ensuring that visible minorities would be hired, someone who would try to reach a quota that would be acceptable within the public service? It seems that you tarnished every manager in the public service. If you do not have a manager, who runs the place?
Mr. Cashman: My colleague will answer.
Senator Munson: Are you a manager?
Lisa Addario, Employment Equity Officer, Public Service Alliance of Canada: Thank you for the question. Mr. Cashman deferred to me because I was the source of that statement. In fact, I was not the source; it was Treasury Board. It was written in their 2001-02 annual report. You may remember that it was during those years that Treasury Board needed to account for the failure of the Embracing Change Initiative, which was to take place from 2000 to 2003. Their goal was that one in every five external hires be a racialized person. At best, they achieved one in 10 in one of those three years and fell below that mark in the other two years, so they had some explaining to do. It was a very well-resourced campaign.
When it came time to explain it, they said in their 2001-02 report that the problem was the hiring managers. More needs to be done to convince hiring managers that hiring racially visible people makes good business sense.
Then, in the following year, they increased the discretion to hiring managers without increasing any type of accountability on their part. At the same time, in 2003, there was a significant reduction in resources to the Canadian Human Rights Commission, as you heard from the commissioner, who talked about how they had to reconfigure their commission when resources were cut. Therefore, that configuration of a cut in resources to the oversight mechanism at the same time that discretion was given to the hiring managers with no additional accountability has led us to say, not necessarily through any other mechanism but by virtue of the fact that there are many decisions to be made, and that the hiring managers have not picked up the slack and made the changes necessary to make the workforce representative.
Senator Munson: Keeping that in mind, with your recommendation that managers should be held accountable for meeting their employment equity targets, are you looking at some sort of punishment, for want of a better word, if they do not meet them?
Mr. Cashman: They certainly should not be receiving a bonus for exceptional work that particular year. It should be a part of the package upon which they are rated each year. Managers who do not meet their targets for other work do not always receive their bonuses, so why, when it comes to employment equity, should 95 per cent of them get their bonus, when we know the targets are not being met? Managers should have to face consequences.
Senator Munson: How serious is the back-door hiring?
Mr. Cashman: Sadly, since the changes to the Public Service Employment Act, it is worse now than ever in the public service.
Senator Munson: Why is that? Why can people not get their acts together? Here is a public service in transition. Many young people the age of my oldest son — 23, 24 years of age — are anxious to get into the public service and work. It is about serving the public; it is the public service. However, there seem to be hoops, whistles and barriers to go through the proper channels to get hired.
How do we eliminate this and create permanent positions as opposed to the situation where, if people are in a position for two years, they will slide them into something else and then they become permanent?
Mr. Corbett: You used the words ``back door.'' I would not call it that. Term and casual employees are recognized ways to fill temporary work.
Senator Munson: I understand that.
Mr. Corbett: However, we find with the level of funding to the public service that many managers can only see so far into the future, and that means terms and casual work. It is almost as if hiring a full-time employee involves risk, because you have to pay them continuously for the long term, and government mandates change often. Therefore, they may be hiring someone whom they do not need, and once he or she is in the process, it is difficult to change direction. It really has to do with the long-range vision of the government of the day versus the short-term need of managers to balance that risk of hiring someone for the long term.
Senator Munson: Is there systemic racism in the public service?
Mr. Corbett: There are systemic barriers in the public service.
Senator Munson: What does that mean?
Mr. Corbett: The barriers, such as the ones I pointed out a few minutes ago, are, for example, having posters that say ``Canadian''; you must have Canadian experience. That could be perceived as a barrier for an immigrant who comes in and does not have Canadian experience but is fully qualified to do the job. Whether you want to call that systemic discrimination or not, it is certainly a systemic barrier. That is one example.
Mr. Cashman: Other people will use the terms ``systemic barriers'' or ``systemic problems,'' but we need to name the elephant in the room, and it is racism. When we call people on their behaviour, their bad behaviour, we can then adopt an approach to deal with it. As Canadians, for some reason, it is in our culture and our psyche that we like to pretend we are not racist. The truth is that we all are racist. Some of us are willing to admit it and work on it differently from others.
Senator Munson: You made reference to the terminology ``visible minority.'' Do you not like that terminology?
Mr. Cashman: The United Nations is calling us on that term as well.
Senator Munson: It is in my notes here. It is a term that we have come to use in this country.
Mr. Cashman: However, if you think about it in the global context, they are the global majority. We must get past that as Canadians, because we have this ``founding fathers'' image of our nation. As we fit in this world, we need to realize that Caucasians are the minority. If we try to label people with the term ``visible minority'' in Vancouver, Toronto or any major centre, it just does not work.
Senator Munson: What should it be then? Should there be no labels?
Mr. Cashman: We are suggesting a word that came from the community itself, ``racialized.''
The Chair: We were in Geneva at the time the committee released the report questioning our use of the term ``visible minorities.'' Coming back to Canada, many of the traditional non-governmental organizations, NGOs, not just professionals but those who work in the visible minority field, were quite distraught — that is maybe too strong a word — but they did not like the UN's questioning of our use of the term ``visible minorities.'' We have yet to hear with a single voice whether your term is any better than the existing one. I do not believe there is a concensus within the visible minority communities or the racialized communities, yet you seem to think there is. Can you tell me where you found that consensus?
Mr. Cashman: I am not saying that there is a consensus; I am saying that within any community there is debate over terminology. We are saying that ``visible minorities'' is not the proper term. Unfortunately, that is the language in the act with which we deal.
Senator Munson: Whatever the term, racism is racism.
Senator Oliver: I would like to thank both groups for their excellent presentations. They are very helpful to the committee. Much thought was put into both reports.
Senator Munson referred to a similar paragraph as the one in your recommendations, Mr. Cashman, to which I refer:
Managers should be held accountable for meeting their employment equity targets. Further, data should be publicized to establish how many managers have been denied their performance bonuses because they failed to meet departmental employment equity targets.
Over the weekend, as you know, in the financial sections of the National Post and The Globe and Mail, there was a story that Mr. Nixon, the head of Canada's largest bank, was punished by losing $4 million of his bonus this year because of his performance at the bank. It was published; the public could see it. He is receiving $4 million less this year in his bonus. He will still make $11.3 million, but it was publicized, and all Canadians and others can read that here is a senior Canadian businessman who failed his shareholders and others, so the board of directors felt and publicized that he will lose $4 million.
That is a good idea. I only wish that somehow we were not ashamed or afraid of talking about our senior managers in the public service who are non-compliant. Why should there be that reluctance? Can you help me with that?
Mr. Cashman: That is a question you may want to put to others as well, but as Canadians, we need to take the view that it is our government, our public service, and we are shareholders in the services they deliver.
Canadians should assume that responsibility a bit more and push back on politicians or bureaucrats who try to cover up situations such as that; transparency can only be a good thing.
Senator Oliver: Should there be a communication strategy, and if so, who should be responsible for the strategy to get this information out?
Mr. Cashman: Every year a journalist of the Ottawa Citizen does access to information requests on the performance bonuses to try to get at the root of who or what department is not getting them. He or she is stymied every time; that is, the powers that be protect that information. We do not need to know the names necessarily, but we need to know which departments are not complying with employment equity.
Senator Oliver: If we read in the paper only that a Canadian banker did not get a $4-million bonus, it will not help us too much. Names are important.
Mr. Cashman: That is true.
Senator Oliver: You said that you are working with a number of different groups to work out your policies, and doing wonderful work on employment equity. One of these is the National Council of Visible Minorities, NCVM. They have appeared before us on many occasions.
They — and I — have wanted for a long time, as a way of overcoming the systemic racism problem in the public service, to have a new creature, a new parliamentary personality called a commissioner of diversity. This person would be similar to the Commissioner of Official Languages. This would be a person who could appear before committees such as this and committees in the House of Commons and give an accounting for non-compliance — those who did not get their bonus, those who should not get their bonus. This person could be a liaison and a person to whom visible minorities and other parts of the target groups could go to.
Right now there is no one, and we heard that the Canadian Human Rights Commission certainly cannot do it. They are grossly understaffed; their mandate is too weak; they have no stick. What do you think of that concept that has been recommended by the National Council of Visible Minorities?
Mr. Corbett: At first brush, it sounds like it would be a good position to have to provide information on a macro level for this committee and for others interested in the issue. We find in our own shop that when we broaden the dialogue, it often brings back perspectives that go to a better solution. Such an office may indeed be able to bring that perspective into it.
Al Ravjiani, Director, Ontario Region and Chair, Human Rights in the Workplace Committee, Professional Institute of the Public Service of Canada: I have personally worked with Igho Natufe, and I also tried to do a little work with Jacqueline Edwards when she was the NCVM president. We have to think about the fact that when the previous committee came here, they streamlined their employment equity audit from a 12-step process to a nine-step process. The process still takes too long to get the data out. If the data comes out in an untimely manner, where you see the people responsible for hiring, they may have gone by then. Their performance bonus is a non-issue.
Another issue is that of how we get the right data to go in and either praise or punish. To get the right data, we need the right statistics; and if we look at our census data that we work from, we were working from the 2001 data. It is now 2007-08, and we are still working on bits and pieces of the 2006 data. The data we work from is not correct. How do you punish someone with incorrect data? There is an issue right there.
Senator Oliver: Even if they did not have the incorrect data, or not up-to-date data, they are not even meeting the old data. They could not even meet the Embracing Change Initiative, which you talked about.
Mr. Ravjiani: I have been involved with about eight hiring boards in the Canada Revenue Agency. Look at Toronto as an example. Even if you do not want to meet the employment equity quota, there is so much population out there, and they use that for regional statistics; so now how do we take that data and say that are we doing okay in Fort Erie or Thunder Bay? Data has to be correct. To be able to come up with new positions is okay, but we need to go with the right data, and I believe we have a big problem with data.
How do we solve it? We still need to be proactive; we still need to ensure there are mentors for people who want to move up in career progression; we need to ensure there are individual learning plans being respected. However, the issue that comes up, which is a big issue, is that staffing does not fall under collective bargaining. It is imposed upon us, and when it is imposed upon us, we then have to accept what the staffing criteria is for internal and external staffing. Classification is another issue.
Those points I want to raise here for you to think about because when you come back to unions, you want to think about those things. Thank you.
Mr. Cashman: If I may go back to your suggestion with respect to the commissioner of diversity, you need to know there are currently three central agencies with responsibility for employment equity. We call them the ABCs: the Canada Public Service Agency, the Treasury Board and the Public Service Commission of Canada. Unfortunately, there is shell game between the three of them for assuming full responsibility for employment equity. We would be concerned if a fourth agency were created, unless it is more of an ombudsperson. However, in terms of creating yet another bureaucracy, we would be concerned that it would get lost more than it is now.
Senator Oliver: Thank you.
The Chair: For the record, since I did not read the same article on the bank manager, was it employment equity he did not get his bonus on or something else? Just for the record. We do not know? He just did not get the bonus?
Senator Oliver: No, it was the bank's performance.
The Chair: The performance overall. Thank you.
Mr. Cashman: The banks are doing quite well.
Senator Poy: Thank you very much for your presentation. If we call systemic racism straight out instead of beating around the bush, it would be easier for everyone to deal with and to say that is what we have; that is the problem; let us deal with it. What do you think?
Mr. Cashman: I can only agree with you. It is the same as challenging sexist behaviour, ableism or homophobia. We need to name it, and that is how we need to approach it.
Ms. Addario: A few years ago, one of our representatives called and asked me to participate in an employment equity conference that was being held for hiring managers in the federal public sector. When I went there, in probably 2005, I heard a number of people speak, and it seemed that there was a movement, a trend, to rename employment equity committees, to move away from the term of employment equity to employment diversity. Employment equity committees were no longer being called that. Their mandate was getting a little more amorphous, not quite so sharp and focused on employment-equity related issues.
At the time, we said that two things will happen when they do that. First, they water down exactly what their objectives are; but second, they fail to recognize the historic discrimination that has been faced by women, persons with disabilities, racialized people and Aboriginal people. When they fail to name it, they miss an opportunity to articulate exactly what it is that needs to be remedied. They fail to articulate that there are remedial measures that need to be taken to address historic discrimination against those people. To no avail, diversity committees continue to dominate in work places across the federal public sector. However, we believe that type of shift needs to be attended to. We need to note and resist that.
Senator Poy: It is like sweeping issues under the carpet.
Mr. Ravjinai, you mentioned correct data and that it has to be fast. I know we are using old data from many years ago.
Mr. Cashman mentioned something the Ottawa Citizen published — I have never seen the article, so I will not comment on it. What do they publish? Do they publish who gets the bonus? How is that published?
Mr. Cashman: I talked about the percentages of senior managers who received the bonus in any given year.
Senator Poy: I would like to follow with what Senator Oliver said in that we have to name the people. The names are important.
I know that with many public employees, certainly in Toronto, they are all listed. People then say, ``Oh my God, that is what they make? What have they done?'' Everyone looks at that, especially when it is people you know or recognize the names of. Putting people's names to it is important. Is there a way to do that? I guess it depends on the newspapers.
Mr. Cashman: The newspapers have not been able to get the information. I am sure they would be tempted to publish it.
Senator Poy: They cannot get the information?
Mr. Cashman: Maybe with good senator support, we can do better with our access to information requests.
Senator Jaffer: I have enjoyed the candidness of your presentations. I have to say that because Mr. Ravjiani and my family go a long way back. It was a very candid presentation. I will not forget what you said, that the elephant in the room is racism.
I want to turn something around. Where I come from in B.C., I am frustrated when I see young public service employees who are being held behind. They will never thrive in Ottawa because of language training.
Is there not anything you can do when bargaining to make sure people who are not in this triangle get proper language training? The money for language training comes from the manager's budget, and the manager does not want to part with that budget. That is the problem.
Mr. Corbett: Overall, budgets for federal public service work are not adequate. When the manager is faced with the choice of doing the work they are supposed to do and also providing language training for an employee who will not be able to do the work because he or she is in training, that is a critical problem that needs to be addressed. Overall, base budgets need to increase.
Mr. Cashman: However, it is not just a money issue. It is a philosophy. You have heard a previous Commissioner of Official Languages say that we do not need to do any more language training of the federal public service. Ms. Adam, on her way out the door, made that statement. She is doing a terrible injustice, not just to those young people you met in British Columbia, but to young people from across the country who may not come from a background where they had the opportunity to learn both official languages in school.
We are not at that point in this nation where we can say we have enough bilingual people in the public service, let us build on what we have now. Canadians from all corners of this country need an equal opportunity, and we should be building a public service that is based on the best and the brightest, not necessarily those that are lucky enough, for example, like me, who come from the National Capital Region where I had an opportunity to learn French. If I had grown up in another part of the country, I do not believe I would have had that opportunity. Conversely, I do not believe I would have done as well in the public service as I have.
Senator Jaffer: Is there any way you can help employees?
Mr. Cashman: One problem is that decisions on bilingualism are not subject to issues of bargaining. We do not get to bargain staffing or issues such as language training. We have tried.
There is a committee of the National Joint Council on official languages, but that committee has a sole mandate to look at the issue of the bilingual bonus, the $800 that has remained the same since 1974.
By coincidence, we will be making a presentation to the Senate committee on Thursday with regard to official languages issues, and we will be talking about training and the other barriers that represents.
Mr. Corbett: That is the point I wanted to make as well. We are advocates for this through committees of the government and the Senate, for sure. However, it is not something we bring to the bargaining table.
The Chair: We have come to the end of our time. I ask you to provide us with copies of whatever brief you will be filing with the Standing Senate Committee on Official Languages. We can get one, but it would be better if it came from you.
I want to thank you for bringing different perspectives in looking at the same issues. How do we get to the objectives that we want within the public service so that it is free, fair and equal for Canadians? We thank you for bringing different perspectives into our discussion.
On our next panel we have Mark Persaud, President and Chief Executive Officer of the Canadian International Peace Project. I understand you will be making the presentation, but accompanying you is James Morton, perhaps to answer questions later.
Mark Persaud, as an individual: Madam Chair and all honourable senators of the committee, I thank you for the opportunity this evening to appear before this committee on human rights. I have with me my friend and colleague Mr. James Morton. He wears many hats and is president of the Ontario Bar Association, among many things.
While the invitation extended to me correctly identifies me as the president and chief executive officer of the Canadian International Peace Project, an independent non-partisan, non-governmental organization, I want to make it clear for the record that I will be speaking in my personal capacity this evening to talk about my personal experiences as a former federal public service employee.
Having worked for 10 years as a lawyer at the Department of Justice Canada, I believe that my presentation, from a personal perspective, will be instructive on some of the maladies that continue to plague the federal public service in terms of employment equity.
Some concerns about employment equity are discussed in an article I have submitted, which I recently co-authored with my dear friend and colleague, the Honourable David Kilgour, a former member of Parliament, entitled ``Public Service Managers must be held accountable for failing to hire minorities.'' I have submitted this for your consideration.
One should reasonably expect that the federal public service should be championing fairness and openness in its employment policies. Regrettably, this has not been the case, as I am sure you are aware. Indeed, one should expect — in my case, my previous employer — the Department of Justice to be a model for other government departments when it comes to employment equity. With regret, I inform you that my experiences as an employee of the Department of Justice is an example of the problems that have been festering for many years without being adequately addressed. These include overt racism and intimidation of employees.
It is my intention to provide you this evening with a sample of the problems that have infected an important government department in terms of its hiring and promotional practices. I will offer some recommendations and suggestions for how they may be addressed.
That concludes my opening statement, Madam Chair.
The Chair: You were in the Department of Justice, and they indicated, when they appeared before us, that they were a rather unique department because, of course, most of the people in the department have a law degree. Because it is a practice of law, they have to have their credentials to get there. The Department of Justice said they were increasingly facing competition from outside. Lawyers do not want to go into justice. That was their particular problem.
On the other hand, they were indicating that employment equity targets, et cetera, do not work well when what they want is a young lawyer right out of law school and then the incremental career. Therefore, it is hard to have a new base.
They were saying there were many retirements, and they may be able to draw from the base. Was that your experience?
Mr. Persaud: No, it was not, Madam Chair.
I can state to this committee my personal experience through anecdotal evidence. I am speaking as a person who has worked for over 24 to 25 years with the Black and other ethno-cultural communities in Toronto and around Canada, so I come with a solid background and wide experience.
From the anecdotal evidence that I have received, there have been many applications from visible minorities to work with the Department of Justice. Furthermore, from the evidence I have received, many of these people do not even get called for an interview.
That is my personal experience. In fact, I have been approached personally over the years, as have my visible and non-visible minority colleagues, about employment at the Department of Justice. Therefore, we know there has been interest over the years, and I dispute the submissions of the Department of Justice.
I would like to read from paragraph 4 of the article that I submitted, which I co-authored with the Honourable David Kilgour:
The tired old argument that ``maybe not enough minorities apply for federal public sector jobs'' has no factual basis according to statistics obtained by the Public Service Commission. The Commission's study also concluded that the discrepancy is worse in some regions, departments and occupations.
I submit to you, Madam Chair and honourable senators, that what you refer to has not been my experience and the experience of many of my colleagues at the Department of Justice.
Senator Oliver: I am fascinated by the fact that you served and worked for 10 years in the Department of Justice. In your opening remarks, you said you were going to outline for us some of the hiring and promotional policies that have been infecting this department. In particular, I would like you to tell us about what happens if a qualified visible minority lawyer in the Department of Justice is seeking a promotion and there is a contest. What are some of the things that have traditionally happened in that department in terms of barriers for visible minorities?
Mr. Persaud: Perhaps I should quote a former classmate, dear friend and member of the bench who invited me to his place in the summer. We were sitting and chatting and our kids were playing together. He said, ``Mark, the Department of Justice is the most racist institution I have encountered.'' That was his quote. He is now a judge and has had his own battles in the Department of Justice, and he eventually left.
Of the group of us who were visible minorities and joined the Department of Justice as lawyers in the civil litigation section, everyone left. I was the last one to leave. The primary reason was we thought there were no proper opportunities as visible minorities for us to be promoted equitably and fairly, and, as a result of frustration, we left.
I did move to the criminal prosecutions section to escape the experiences of the civil litigation section, but it was not better. The experiences there were parallel to the experiences in the civil litigation section.
There are many reasons I could give. I would like to highlight occasionally how perverse the rationale from the Department of Justice could get when seeking to justify not promoting visible minorities. One of the first competitions after I joined the Department of Justice was for a position for those of us who were hired. We were not permanent staff. We were hired as contract employees, and over time we could apply to become permanent.
Everyone applied for the permanent position; we submitted all the information, letters of reference, et cetera. One of our colleagues got a promotion. He was very capable, very bright. He was an Anglo male, a classmate of mine at law school, a very capable, competent person; certainly deserving. Interestingly, one of my other colleagues, who is Black, on inquiry, found out that his referees were not even called for references. He was also a law school classmate of mine and worked for the federal government as an accountant before going to law school; we thought he was equally deserving.
During the course of discussions we had with the section head, she stated that they only considered experience gained in the immigration section at that time. When she was questioned as to references obtained by people who did some work in other sections, she said we will consider those references but not the experience, which we found rather perverse.
We were also told it was a very tight competition. In fact, she said to us — and I remember quite clearly — ``You are all bright-eyed and bushy-tailed; we should pull straws to see who gets the position.'' As I said, we later discovered that our colleague Osborne Barnwell's referees were not even called. That is sort of perverse in my personal opinion, and we have seen conduct such as that over time.
One of the experiences that was really troubling to many of us is the fact that very often, at the initial interviews, we do not have visible minorities in those panels and very often there is an absence of women also. However, when those decisions are being appealed they will suddenly parachute in a visible minority on the appeal, which is problematic from a number of respects, one being it puts that visible minority person in a very uncomfortable position. That happened in my case when I appealed a decision. They put in a young Black woman to do the case on behalf of the Department of Justice, and I could tell she was very uncomfortable.
Senator Oliver: What is your solution to the problems that you just outlined to this committee? What can be done to change those attitudes?
Mr. Persaud: I came to Canada as a refugee in 1983 as a political activist in my country and after the murder of the leader of my political party, the well-know African Guyanese historian Dr. Walter Rodney. Many thousands of us fled to Canada. I came here with the intention of parking and then joining my family in the U.S. They eventually moved to the U.S. I moved there but fled and came back after two weeks because I love this country. I am passionate about Canada. This is home; this is where I am making my contribution.
I have found from my personal experiences and those of many of the people I have worked with over the years that they share similar views. They want to be integrated. They want to be mainstream Canadians. However, when we seek opportunities, we are often treated as ethnics, as Black candidates, as brown candidates, as Chinese candidates. We want to be treated as Canadians based on merit. In that regard, I have come across many colleagues and friends who, like me, when they came to Canada, they totally disassociated themselves from their specific ethnocultural community and sought to mainstream themselves.
I arrived here with $80.59. That is all the government allowed me to leave with at the time, 200 Guyanian dollars. That ran out pretty quickly. I started my life here as a homeless person on the streets of Toronto. I was rescued off the streets by the Scott Mission. I went on to serve my community, I believe, with distinction. I worked with the United Church. I set up a program for refugees, which was the first of its kind. I studied political science at York University, got my degree, did a Master of Laws degree, LLM, with an A average and studied on a scholarship at Harvard. I have had extensive involvement within the community with a variety of organizations, some of which I started.
However, I feel people such as me — and I have other colleagues who have done equally or more stuff than I have done — when we seek employment in the public sector, we are the ethnic candidate. One of the first things they have to do is start changing perceptions; start treating people as Canadian, not just ethnics.
Within the first week of my entering the Department of Justice, during one of my training sessions, I had a senior lawyer say to me — when we were discussing the issue of refugees and the definition of ``refugee'' — ``Well, you know Mark, the Africans are not real refugees and the Chinese are consummate liars.''
That was my first indication of what I would have to endure at the Department of Justice. In my family, I have an in-law who is African-American and cousins who are half Chinese, so I took that very personally. Many of my closest friends have worked extensively in the Black community.
In terms of what we can do, we have to have a paradigm shift and change those perceptions. We have to treat candidates as Canadians, not as ethnic candidates, not as a Black candidate. We have to change the attitude of, ``We have our quota of South Asian candidates, so let us get a couple of Black or Chinese candidates to ensure the community is reflected in our department.'' They have to be treated on merit. There is much nepotism that exists in the hiring, even at the Department of Justice. There must be some mechanism employed to ensure that people get the first interview. Many of them do not get the first interview.
We need to put to the test this submission by the Department of Justice, which I reject, that not enough people apply. Ask them how many people are visible minorities and how many of them get interviews. There are many visible minorities, lawyers, coming out of the law schools in Toronto. Many of them are looking for jobs. It is outrageous to even suggest that they are not applying. It is ridiculous. I would not give any credence to that.
I do not believe in quotas or affirmative action. I believe many of us who are visible minorities can earn positions on merit. However, I believe there should be targets because there has been a historical, systemic discrimination. There should be targets, and people who do not meet those targets should be called to account for not meeting them. I do not believe in quotas or affirmative action because often there is a backlash. We found this at the Department of Justice, where I had one Black colleague being told by a White lawyer that they got their position because they were Black. I know that person was very capable and very competent.
In terms of promotions, it is not only visible minorities. Many of my female colleagues felt they were unfairly treated based on gender in terms of promotion at the Department of Justice.
There is a need for a strong system of scrutiny. The internal mechanisms in place with regard to appeals and oversight simply do not work. There is a need for a layer of oversight. There is maybe even a need for creditable external overseers to look at the system to ensure that the policies of the federal government are being complied with. Leaving it to internal controls, asking the police to police themselves, does not often work. We necessarily have to have some type of independent, objective oversight.
Senator Oliver: Perhaps a diversity commissioner; a creature of Parliament.
Madam Chair, I apologize.
The Chair: No, your intervention was short. I was about to ask for shorter answers. I know you are giving us some anecdotes, and it takes time. If we could keep it short, it would be helpful to give all the senators a chance.
Senator Poy: Mr. Persaud, you mention in your opening statement about intimidation of employees. You have not really touched on that. Could you give us some example of what actually happened?
Mr. Persaud: I can speak from my personal experiences. After having worked for 10 years, I applied for a promotion. A member of that panel happened to be a lawyer who had some animus toward me, a lawyer who had made very derogatory statements about a senior female appellate judge. I had complained about it because I found it very offensive that he would make such a remark about a Justice and a woman, and nothing was done about it. Given our history, I asked that he be recused from the panel, that he recuse himself. I was told that no, he would not, and if I am not satisfied with the decision, I should appeal it. In that case, I did not get the position. One of the lawyers that interviewed me came into my office, closed the door and said, ``Mark, it wasn't me,'' which was an indication that I was prejudiced.
I tried to use an internal mechanism and, in the process, I personally encountered harassment and intimidation. I tried to see the assistant deputy minister at the time. I came to Ottawa. When I went back to my office, I was told that we have to convene a disciplinary hearing because I sought to see the assistant deputy minister without being given an opportunity to retain counsel or advise them of the circumstances.
That is a sense of the flavour of the type of intimidation. Eventually, I went on with my appeal at a cost of $10,000. They decided I should have been hired in addition to many of the persons younger and with less experience than I had. This is just a flavour of the types of situations one can expect to encounter in the department.
Senator Poy: What is the Canadian International Peace Project? What is the connection between that and your presentation today?
Mr. Persaud: There is none.
Senator Poy: That was why I was confused. You mentioned there should be a target but not a quota. What is the difference?
Mr. Persaud: A quota is more definitive, in my opinion, senator. You say you have to have 33 per cent visible minorities or 50 per cent women. You have to account. That number must actually be met. A target is a little more fluid. A target can be set in the hope of being reached and aspired to. However, if the target cannot be met, then, with valid reasons, those reasons can be proposed. If the reasons are acceptable, then the target, even if it is not met, is justified in those circumstances because valid reasons were supplied. I believe a quota is hard and fast, and people will try to meet that quota even if, in some cases, those people justifiably should not have been employed.
Senator Poy: Should someone be there to check the target?
Mr. Persaud: Certainly.
Senator Poy: Thank you very much.
James C. Morton, as an individual: If I might add with regard to targets as opposed to quotas, a quota is a defined number that says one must have X number of people hired. A target, on the other hand, is something that would be watched and, if the target is not met, that may suggest there is some systemic barrier, whether intentional or otherwise. The failure to meet a target would then be something to trigger an investigation to see why the target is not met. It is not that people want to fill quotas. They want to only hire people who are properly qualified. However, if there is a failure to meet a target, that may suggest something is wrong.
Senator Poy: Thank you.
The Chair: Perhaps I could follow up on that. In a target, there would be the inclination to fill it, and that leaves the impression that maybe merit is not the deciding factor, and that leads to the backlash that Mr. Persaud mentioned, rightly or wrongly.
Mr. Morton: There remain difficulties, no question. However, if we say there are certain hiring targets, we are suggesting that when we look at Canada as a whole, we look at the makeup of the population, we recognize that if there is a failure to meet a target, that suggests certainly that there is a problem. Perhaps it means there is something systemic, and perhaps it means something more sinister, but we still want to look at the target. Yes, it may be possible that, to meet a target, there will be some quick hires, but those are process problems.
Senator Munson: It seems to me you are a very brave person, a whistle-blower on some situations that are allegedly happening or have happened in the Department of Justice. You seem to be the only one who has dared to step out. Perhaps there are others. I would like to know, did you quit or were you fired, and when did it happen? Is systemic racism continuing in the Department of Justice today?
Mr. Persaud: I quit because of health reasons. I left my position.
Senator Munson: Was that a few years ago?
Mr. Persaud: Yes, in 2003. Is the Department of Justice still a concern? I am told that people are still unhappy. In fact, I ran into two support staff members last week and had lunch with them; they are both Black, friends of mine from the department. They expressed their concerns and unhappiness. They advised me that many lawyers have left recently; in fact, about 10 lawyers. Now, to be fair, I do not believe that was only because of, or maybe not even related to racism. It may have to deal with the salaries. The province of Ontario offers a better salary and in some cases more interesting work, so that may have been the reason. However, I was told that there is still a culture in there that creates much unhappiness and creates a problem in terms of retention.
In terms of being brave, I did not grow up in Canada. I grew up in what was a dictatorship, and I saw colleagues who stood up for their principles killed. I have stared death in the face many times, and I almost died on the streets of Toronto. If someone such as me, a lawyer at the Department of Justice, cannot speak up against an injustice, who will? It may be stupid, but if someone such as me, who is a well-known community activist, who has fought for human rights and worked with a variety of organizations — Amnesty International, my church outreach committee, the Rotary Club — cannot do it, who will? I am prepared to deal with it because I know somewhere down the line I would not be able to live with myself, and I would not be able to look my children in their eyes and say, ``Stand up for your principles, especially if it will affect you as a person if you do not do the right thing.'' Maybe I am cut from a different cloth.
Senator Munson: If you are saying there is still a culture and attitudes in the very senior levels in the Department of Justice, these are really serious accusations about what has happened there, and yet no one seems to be accountable toward what happened to you or the whole feeling that surrounds the Department of Justice. I am just curious whether the deputy minister or someone should come before us to explain.
We have heard from different people, different departments not meeting these targets and this inequity, the percentages and all sorts of stuff, but yours is a very personal story that has been told before, and you are telling it again. You are telling it again for a reason, it seems to me, and the reason is that it has not changed. Nothing has changed.
Mr. Persaud: In fairness to the Department of Justice, I have been away for a few years. It may have changed. In fact, it may be perfect right now. I have received anecdotal evidence that there are still problems there. I have received evidence that lawyers are still leaving. It may have changed; I cannot say definitively it has not. However, given the entrenchment of the culture that I experienced while I was there, I would be surprised if all the necessary changes were made, even if there were changes.
One of the problems in the Department of Justice is the retention of visible minority lawyers. They seem to leave after a little while, and part of the reason for that is this culture of tolerating racism and discrimination.
I will give you an example. We have to deal with the police on a daily basis. While I have the greatest regard for the police and am pro-justice, and I believe our women and men in uniform serve us very well, there is a small core of rotten officers who do a disservice to the police force. Very often, we as Crowns come across them. We hear their comments.
For example, when I was travelling one evening, there was an accident involving a police officer. I asked the police officer who was in charge of my case, if he knew what had happened, and he said, ``Yes, a Black police officer got into an accident in responding to a 9-1-1 call. He worked with Black intelligence,'' and then remarked, ``There is an oxymoron, Black and intelligence.'' I said, ``What are you talking about? I am Black too.'' He said, ``No, no, you are not Black.''
Another police officer boasted to me that at the division, his colleagues refer to him as a Mark Fuhrman, of O.J. Simpson notoriety.
These are incidents of racism that I experienced as a visible minority. I hate to imagine what my White colleagues have been told, not only from police officers but from lawyers in the Department of Justice.
I gave you an incident of the racism I encountered against Chinese and Blacks in my first week. When one my colleagues was rushing to the elevator because his first child was arriving, two lawyers were by the elevator and one asked the other, ``Where is Osborne rushing?'' He said, ``His wife is having a baby.'' The lawyer remarked, ``Another one of them?'' The second lawyer said, ``What do you mean, another one of them? I have children.'' He replied, ``Yes, but yours will look for work when they grow up.''
That happened at the Department of Justice. It is that culture that we have to deal with, sir, that poisonous, toxic culture that causes many people to leave.
There was no mechanism in the Department of Justice while I was there to deal with racism by police officers. In fact, there is a disincentive to complain because we work with these police officers all the time; especially because we do specialized prosecutions, such as the drug squad, and if we go up against them, there is a backlash. Some people claim that these officers actually run the prosecution section, not the lawyers, because they complain all the time against lawyers. In fact, they have been known to harass visible minority lawyers. I remember an incident where they made fun of names. One woman was made to cry because of their inappropriate conduct. It may seem strange to you, but for those of us who experienced it, there is a culture there, and there is nothing you can do because there is no system in place to address these types of situations.
Senator Munson: There is something we can do. If there is a poisonous, toxic culture in the Department of Justice, we should call the deputy minister to explain the environment. This is what our study is about. We are trying to change attitudes. That is what this whole study is about. If we do not talk to the top person in the Department of Justice, we have done ourselves an injustice, dealing with an issue as serious as you are claiming today.
Mr. Persaud: I would like to point out, if I may, the apparent total disregard for the notion of fairness and process. When I did my appeal against the lack of promotion, my lawyer subpoenaed the deputy minister at the time. A valid subpoena was issued, and we subsequently found that there was no subpoena. My understanding — and legal counsel can correct me — is that if a subpoena is issued, you bring an application to quash the subpoena. In this case, it just disappeared. Apparently, they can call the office and ask them to withdraw the subpoena, which is ridiculous. For the Department of Justice, the deputy minister, this is outrageous. Those are the types of situations with which we have to deal.
Senator Oliver: Was the subpoena literally personally served?
Mr. Persaud: I would assume so. I would assume he did get the subpoena. I want to make it clear that these incidents and my experiences occurred some time ago.
Senator Munson: It was only five years ago.
Mr. Persaud: Yes, and the current minister and deputy minister certainly should not be held personally accountable, as far as I am concerned. They may be doing a fine job and may be trying their best, but certainly they have inherited a very poisonous, toxic department in which people, women and minorities, have been ill-treated.
Senator Jaffer: You and I have known each other for a long time. This is a part of your life I did not know anything about. You are known all over the country. I am sure when people see this they will be surprised.
Mr. Persaud: It is the first time I have spoken publicly about it.
Senator Jaffer: I want to get some things clear. What year did you start working in the department?
Mr. Persaud: I finished law school in 1991. I was called to the bar in February 1993. I would have commenced a month or two thereafter in 1993.
Senator Jaffer: Were you there for 10 years?
Mr. Persaud: Yes, I left in 2003.
Senator Jaffer: Were you heading criminal prosecutions?
Mr. Persaud: No, I was not heading; I was a counsel. I spent two years as legal counsel to the RCMP Proceeds of Crime during my tenure in the criminal prosecution section.
Senator Jaffer: Were you here in Ottawa or in Toronto?
Mr. Persaud: I was in Toronto.
Senator Jaffer: In the end, you left for health reasons?
Mr. Persaud: Yes; it was directly attributed to the treatment I received.
The Chair: Thank you, Mr. Persaud. It was my understanding that you were coming on behalf of the project. We have now clarified that you are here in your personal capacity. We have taken your comments, which you have indicated have been anecdotal and personal. We thank you for that testimony, which again gives us a different perspective on the task that we have in our mandate.
I want to thank you for coming. Mr. Morton, I guess you are support for Mr. Persaud. I thank you also for coming before the committee.
The committee adjourned.