Proceeding of the Standing Senate Committee on
Human Rights
Issue No. 31 - Evidence - Meeting of June 13, 2018
OTTAWA, Wednesday, June 13, 2018
The Standing Senate Committee on Human Rights, to which was referred Bill C-65, An Act to amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017, No. 1, met this day at 11:30 a.m., in public and in camera, to give consideration to the bill.
Senator Wanda Elaine Thomas Bernard (Chair) in the chair.
[English]
The Chair: Good morning, senators.
Before we begin, I would like all senators to introduce themselves. We’ll start with the deputy chair.
Senator Ataullahjan: Salma Ataullahjan, Ontario.
Senator Andreychuk: Raynell Andreychuk, Saskatchewan.
Senator Cordy: Jane Cordy, Nova Scotia.
Senator Hartling: Nancy Hartling, New Brunswick.
The Chair: I am Wanda Thomas Bernard, the chair and a senator from Nova Scotia. Welcome. Today we continue our study of Bill C-65, An Act to amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017, No. 1.
I would like to encourage senators to consult the law clerk’s office should they plan to move any amendments on this bill this afternoon.
For our first panel today, we are pleased to welcome, from Pink Larkin, Gail Gatchalian, Lawyer and Workplace Investigator. She’s joining us by video conference. From the Native Women’s Association of Canada, we have Francyne Joe, President; from the National Association of Women and the Law, Anne Levesque, Co-Chair of the National Steering Committee; and Suki Beavers, Project Director; and as an individual, Phanikiran Radhakrishnan, Associate Professor, University of Toronto.
Ms. Gatchalian, we’ll start with you.
Gail Gatchalian, Lawyer and Workplace Investigator, Pink Larkin: Honourable senators, good afternoon from Halifax. Thank you so much for inviting me to appear today to share my thoughts on some of the proposed amendments in Bill C-65. I will focus my comments on the subject of workplace sexual harassment.
First, allow me to tell you a bit about myself. I am a labour, employment and human rights lawyer practising at Pink Larkin in Halifax. I conduct independent workplace investigations focusing on complaints of workplace sexual harassment. I provide training to human resources professionals on how to conduct proper workplace investigations.
Based on my view of investigation best practices, I offer my thoughts on three aspects of Bill C-65 as they relate to workplace sexual harassment: one, the definition of harassment; two, the making of a complaint to an employee’s supervisor or designate; and three, the lack of detail concerning the investigation of complaints.
With respect to the definition of harassment in proposed subsection 0.1 of the bill, I have two comments. First, the definition contains a potential ambiguity that could give rise to unnecessary confusion and litigation; second, the definition should, in my view, be replaced with definitions that include a separate definition of sexual harassment.
Workplace investigators, employment and labour lawyers and human resources professionals work with a fairly standard definition of sexual harassment. There is a large body of case law that provides a great deal of certainty about how sexual harassment is to be defined and interpreted. In my view, the bill should reflect the standard definition in order to enhance certainty and reduce any potential confusion about the definition of sexual harassment under the code.
With respect to the potential ambiguity, the current definition reads as follows:
harassment and violence means any action, conduct or comment, including of a sexual nature, that can reasonably be expected to cause offence, humiliation or other physical or psychological injury or illness to an employee, including any prescribed action, conduct or comment;
The phrase “or other physical or psychological injuries or illness” suggests the words preceding the phrase, which are “offence” and “humiliation,” must amount to some kind of physical or psychological injury or illness. I do not believe the intention was to narrowly define what kind of conduct could constitute harassment and violence. Such a narrow definition would not be consistent with best practices.
My recommendation is, at the very least, to remove the word “other” from the definition. In fact, I believe the definition should be replaced with separate definitions for “harassment,” “sexual harassment” and “workplace violence” that accord with best practices and enhance certainty about what behaviour the code governs. A complete replacement of the current definition would also resolve the problematic ambiguity.
I believe the Ontario Occupational Health and Safety Act, which contains separate definitions for harassment, sexual harassment and workplace violence, does accord with best practices and can be applied with ease and certainty by employers and investigators. I recommendation the definition in subsection 0.1 of the bill be replaced with those definitions.
My second comment is with respect to making a complaint to the employee’s supervisor or designate.
As we have seen with recent high-profile public disclosures of sexual misconduct, some women have waited years, sometimes decades, to come forward with allegations of sexual misconduct by their employer or superior because they feared retaliation and did not trust the internal complaint mechanism. In my view, the proposed amendments do not adequately address this significant barrier and power imbalance facing victims of workplace sexual harassment.
Subclause 5(1) of the bill would replace sections 127.1(1) and (2) of the code with language that would provide for an employee making a complaint about harassment or violence to his or her supervisor or to the person designated in the employer’s policy. The Ontario Occupational Health and Safety Act deals with complaints of misconduct by employers or supervisors by requiring employers to include measures and procedures in their policies for workers to report harassment to a person other than the employer or supervisor if it is the employer or supervisor who is the alleged harasser. I therefore recommend adding a further subsection to 127.1(1) to require an employer to have such measures and procedures where the employer or supervisor is the alleged perpetrator.
My third and final comment concerns the lack of detail in the investigation of complaints.
In my view, one of the most important tools to address workplace sexual misconduct and to address the power imbalances and fear that often prevent women from coming forward is to provide them with access to competent, fair, prompt and unbiased investigations.
Again, the Ontario Occupational Health and Safety Act requires employers to conduct investigations into complaints of harassment that are “appropriate in the circumstances.” The Ontario legislation also provides an inspector with the power to order an employer to cause an investigation to be conducted, at the employer’s expense, “by an impartial person possessing such knowledge, experience or qualifications as are specified by the inspector.”
The Canada Occupational Health and Safety Regulations currently require an employer to appoint a competent person to investigate workplace violence when the matter cannot be resolved with the employee. They define “competent person” as a person who is impartial and is seen by the parties to be impartial, has knowledge, training and experience in issues relating to workplace violence and has knowledge of relevant legislation.
I recommend a further subsection be added to section 127.1(2) of the code to require the employer, if the complaint cannot be resolved, to have an investigation conducted by a competent person. I also recommend the bill grant the minister the power to order an employer to appoint a competent person to conduct an investigation in a new subsection of section 127.1(9) of the code.
Finally, I recommend the phrase “competent person” be defined either in the body of the code or in the regulations to be a person who is impartial and is seen by the parties to be impartial, has knowledge, training and experience in issues relating to workplace harassment, sexual harassment or violence, as the case may be, and has knowledge of relevant legislation.
This would accord with best practices.
Thank you again for the opportunity to appear today. I hope my comments will be of some assistance.
The Chair: Thank you. We’ll have questions at the end.
Francyne Joe, President, Native Women’s Association of Canada: Weytk and good morning, Chairperson Thomas Bernard, community members, distinguished witnesses and guests. My name is Francyne Joe. I am President of the Native Women’s Association of Canada.
I would like to acknowledge the Algonquin nation, on whose unceded traditional territory we are meeting on today. I would further like to thank this committee for the opportunity to present today on Bill C-65.
NWAC has been advocating for the rights and well-being of First Nations, Inuit and Metis women in Canada since 1974. Through grassroots engagement and policy and legislative analysis, we work to preserve Indigenous women’s cultures, families and communities by elevating their voices to the national and international level.
NWAC is encouraged by the Government of Canada’s acknowledgment that incidents of harassment and sexual violence in the workplace are both under-reported and under-investigated and that steps are now being taken to address these injustices.
Indigenous women live at the intersection of multiple forms of marginalization. We experience workplace harassment, bullying and discrimination as women and as Indigenous people in a colonial society. This is in addition to barriers and discrimination we may face as a result of geographic location, education, ability, gender identity and/or sexual orientation. All of these factors compound to make many Indigenous women vulnerable to harassment and violence, particularly in workplace settings where power dynamics further complicate interpersonal relationships and foster vulnerability.
For these reasons, any legislation attempting to address sexual harassment must respond to these intersections and not seek to separate women’s issues from Indigenous issues and vice versa. It must be noted that due to these interlocking oppressions, power dynamics, fear of reprisal and apprehension about navigating colonial processes, Indigenous women are much less likely to report harassment complaints. This must be specifically addressed and reflected in legislation and policy development impacting Indigenous women’s professional lives.
Similarly, the legislation must foreground the need for adequate and ongoing cultural competency training, rigorous reporting systems and culturally safe supports for victims and survivors before, during and after reporting.
There is a culture of harassment, violence and bullying in workplaces. This legislation must work to change, long term, these long embedded harmful practices.
Additionally, this legislation must discern how and whether hate crimes differ from various forms of workplace harassment. For Indigenous women, gender-based violence and discrimination does not occur separately from racial violence and discrimination. How and where these lines will be drawn is imperative to developing training for both employers and employees. This must be embedded in the legislation in order to be effective.
Most Indigenous women employed within the federal government are contract workers or temporary workers and are usually in administrative positions. Precarious employment relationships are part of a much broader socio-economic disparity that is rooted in Canada’s colonial history and the ongoing marginalization of Indigenous women.
As a result, Indigenous women may not feel comfortable bringing forward a complaint out of fear of repercussions, lack of anonymity or may simply be unaware of available supports. In order for legislation to respond to their specific needs, these truths must be addressed.
Additionally, adequate funding must be provided to organizations and departments to fulfil the training and support system requirements outlined in this bill. There must be quality training for employers and employees that is culturally appropriate, continuous and applies a gendered lens.
Moreover, there has been inadequate consultation with Indigenous people. Our understanding is this will apply to federally regulated First Nations governments and if this is correct, then the Government of Canada must carry out meaningful consultation with Indigenous people.
In particular, Indigenous women have not been adequately consulted. In the harassment and sexual violence public consultation report that informed this legislation, only 28 Indigenous women were surveyed and only one engagement session with the Ontario Native Women’s Association was held. Findings from these consultations do not appear to be reflected in the legislation in its current form.
Indigenous women employed by the federal government or First Nations governments will have to follow the complaint system laid out in the legislation. This is not culturally competent, safe nor reflective of best practices or Indigenous ways of knowing and healing. As previously mentioned, Indigenous women face more barriers when filing a complaint, especially if they are filing one within their own community or nation, as a lack of anonymity and retaliation are concerns.
In conclusion, taking all this into account, it is imperative a culturally relevant gender-based analysis is conducted on this broader issue and on this legislation so the experiences and needs of Indigenous women are reflected in the legislation. This would also require more expansive and meaningful consultation with Indigenous women and their communities to ensure this process of addressing harassment and violence is not widely imposed.
Thank you for your time and your consideration. Meegwetch.
The Chair: Thank you.
Suki Beavers, Project Director, National Association of Women and the Law: Thank you very much, we’d like to begin by thanking the committee for providing the National Association of Women and the Law for the opportunity to appear this morning on Bill C-65.
As many of you know, NAWL is a not-for-profit feminist organization that promotes the equality rights of women in Canada through legal education, research and law reform advocacy. We also want to thank the minister, all the MPs, senators and staff, as well as members of feminist and equality seeking groups and the survivors that have come forward to help frame Bill C-65 so that it provides a more comprehensive legal framework to prevent and respond to violence, harassment and sexual harassment in federally regulated workplaces, including Parliament Hill.
We’ve noted with appreciation that some of the recommendations for amendments that NAWL and others have made are included in the revised version of the bill before the committee.
At this stage, therefore, we would like to focus on just a few additional amendments that are particularly important to ensure Bill C-65 is consistent with the human rights approach and that it recognizes the unique and intersectional vulnerabilities of certain workers and women in particular.
In order to adopt this human rights-based approach, we make the following recommendations. First, we reiterate the recommendation we previously made to the HUMA Committee that a clause should be added to make it explicit Bill C-65 does not in any way restrict the recourse and remedies available to federally regulated workers under the Canadian Human Rights Act.
Second, in addition, the purposes or preambular section should include a clear acknowledgment workers have a right to a workplace free from violence, harassment and sexual harassment. Moreover, given that women in Canada continue to experience many forms of gender-based discrimination and violence; and that some federally regulated workplaces, including Parliament Hill, continue to be male dominated and environments in which many women experience harmful gendered power dynamics; and that the evidence is very clear that women continue to overwhelmingly be the targets of sexual harassment at work, specific language must be inserted to reflect Bill C-65 is intended to advance gender equality and ensure the rights of women workers, including those who face intersectional forms of discrimination, are respected, protected and fulfilled.
Third, we agree with the use of the language of prevention throughout Bill C-65 and the obligation to protect and prevent at subsection 125(1) of the Canada Labour Code. Consistent with the human rights-based approach, NAWL proposes the language of prevention, protection and response is added to violence, and that harassment and sexual harassment in the workplace is added throughout the bill. This language is important because it emphasizes the positive duty of the employer to not only respond to violence, harassment and sexual harassment but also to create an environment that protects women and prevents violence, harassment and sexual harassment from happening.
Another crucial area that requires amendment relates to the appointment of competent designated persons. Access to justice requires a fair, impartial investigator who must also have specific expertise in gender-based violence, harassment and sexual harassment in the workplace as well as training on human rights and specific training on women’s rights.
Complainants must be viewed as rights bearers, and as such they are entitled to fairness and due process. This means, for example, complainants should receive a full copy of any report generated with regard to her complaint.
Finally, in order to avoid the stigma that victims and survivors of harassment and violence often face when coming forward, we propose a change to the wording in proposed subsection 127.1(8) relating to the circumstances in which the minister is not required to investigate a complaint. The language should be changed from “frivolous and vexatious” to “an abuse of process.”
Anne Levesque, Co-Chair of the National Steering Committee, National Association of Women and the Law: As mentioned by Ms. Beavers, NAWL’s second priority is the legislation recognizes that while harassment, sexual harassment and other forms of violence, including gender-based violence, constitute serious workplace health and safety issues, both the acts and the harms they cause to women are different than other workplace hazards.
This leads us to our second series of recommendations, specifically with regards to the definition. Like the Canadian Human Rights Commission, we support an open-ended definition of harassment and violence. We would propose the language of “includes” rather than “means” be adopted in the definition.
Second, we advocate for a definition that includes “domestic violence that may expose a worker to injury in the workplace.” The obligation of an employer to respond to domestic violence as contained in the Ontario Occupational Health and Safety Act provides a good example that could be replicated in this bill. Just as with the Ontario legislation, Bill C-65 could specifically create a responsibility on the employer to respond to domestic violence that may expose a worker to harm or injury in the workplace.
We have two final suggestions. The reporting obligations: that data be disaggregated according to the grounds of the Canadian Human Rights Act, so we understand who is impacted by the violence and intersecting forms of discrimination. Finally, with regards to the competent person who’s designated to investigate allegations of harassment and violence, create a list of members that includes members of historically disadvantaged groups, including at least 50 per cent women.
We propose these suggestions to the bill would make it consistent with Canada’s international human rights law obligations, domestic human rights law obligations and also make Canada a leader internationally in recognizing the rights of workers to be free from violence and harassment in the workplace.
Phanikiran Radhakrishnan, Associate Professor, University of Toronto, as an individual: Thank you, senators, for inviting me today to talk about Bill C-65. It’s a tremendous honour for me to study and comment on Bill C-65.
I have been doing scientific research on workplace harassment since 1992 when I was a doctoral student at the University of Illinois. I continue to study this phenomenon while I teach human resources in my current position in the Management Department at University of Toronto.
It is very heartening for me to see this bill considers workplace harassment as an issue of occupational safety. Indeed, harassment in the workplace is like a meltdown. It is not just the direct target of the harassment who suffers; its radioactive effects are also felt by those in the organization who witness it, hear about it or those who help the victim cope. I refer to these witnesses as bystanders. When harassment happens to someone, bystanders start to fear, “Am I next?” Then they worry: “If my company did not act when someone else filed a complaint, will it act when I am harassed and report it?”
We do not wait for a nuclear accident to happen or for the contamination to spread. We aim to prevent it from starting. We must not wait for victims to complain about harassment; we must aim to prevent harassment from occurring and its contaminating effects from spreading to others in the workplace. We need to put safeguards in place, just as we do to prevent nuclear accidents.
I will comment on three parts of the bill, then I will identify what could be done to improve it based on scientific research. Then I will make specific suggestions. I will focus on the definition, because improving the definition will also help in your efforts on prevention and reporting. I will finally comment on how you can ensure mandatory training can create a harassment-free workplace.
The proposed definition is a good first step. I would encourage you to make it more inclusive and specific; that is, you should include protected groups in your definition. You should also specify how to interpret which behaviours are harassing based on its effect in the workplace.
Here, in addition to the other definitions in the Human Rights Commission and the Canada Labour Code, I recommend you also consider the definition used by the United States Equal Employment Opportunity Commission. This definition is more inclusive and specifies of its effects on the workplace. This definition includes multiple protected groups.
Harassment cannot only be of a sexual nature but can also be due to race, colour, national or ethnic origin, sexual orientation, gender identity or expression, religion, age and disability. Just as a person can belong to multiple protected groups, that person can also face multiple types of harassment; it may not be just more of the same.
Our research shows harassment can take different forms for different protected groups. I will illustrate how this can be for sexual and ethnic harassment. In our research, we ask people to describe what they perceive as harassing. We find that ethnic harassment not only takes the form of jokes and derogatory remarks, similar to sexual harassment, but we also find ethnic harassment can take the form of excluding someone in the workplace by telling them to “go back to where you came from” or by withholding information that can help them do their jobs well.
Using a definition that includes multiple protected groups recognizes a person can face multiple types of harassment. Your stakeholders make a similar recommendation.
The EEOC definition also specifies which behaviours are harassing based on their effects. It states behaviours that are harassing create a hostile work environment, interfere with a person’s job performance or adversely affect their employment opportunities. In our research, we ask people to tell us how often they witness or experience harassing behaviours like jokes or derogatory comments; or behaviours that exclude someone in the workplace or behaviours that withhold job-related information from someone. Such behaviours can create a hostile work environment, interfere with a person’s job performance and affect their potential for advancement.
I will now comment on the clause requiring annual reports. I am glad to note these are mandated. However, to get a true and valid assessment of workplace harassment, these mandated reports need to go beyond collecting formal complaints made by victims.
As many other witnesses have commented, studies also find consistently that victims themselves are not likely to formally complain about their harassment. They are even less likely to do so when it is not anonymous.
Here again, the analogy of hazardous materials in the workplace helps. We cannot afford to wait for signs that a radioactive material has been mishandled or stored unsafely. Similarly, we cannot afford to wait for victims to file formal complaints in a timely fashion. By the time one victim has filed a complaint, the radioactive nature of workplace harassment has already caused great havoc in the workplace. Many harassing events may have already occurred, and many others in the workplace may have been affected. Our research shows that bystanders who witness or hear about workplace harassment report poor health and are dissatisfied with their supervisors, their coworkers and with their jobs from having been exposed to the contaminating effects of workplace harassment.
You cannot afford to rely on victims’ formal complaints to determine if workplace harassment is occurring in an organization. We must use other ways of detecting it. I recommend you mandate organizations to collect regular, anonymous surveys of all employees in the organization. This will help you assess the frequency of harassing behaviours that employees themselves experience or witness others being subjected to. This will be a more accurate assessment of workplace harassment. The anonymity of the surveys would also address the privacy concerns your stakeholders have identified.
Regarding the clause on training, I commend you for making it mandatory and required of both employers and employees. However, I will comment on how you can use scientific research to make this effective.
A survey of 34,000 military personnel examined the relative effects of three factors: Did the personnel have training; did the units have policies about harassment; and do employees perceive leaders at different levels of the organization make reasonable efforts to prevent harassment from occurring?
You would not be surprised to hear employees’ perceptions of their leaders’ efforts in preventing harassment predicted reports of ethnic harassment.
Even if employers are mandated to have training and know what to do when harassment occurs, it is only if they take credible actions that we can hope to reduce harassment. Simply put, if you are mandating that employers learn how to respond when people harass each other, that learning will not be effective if it is not applied when harassment occurs in the organization.
This is similar to what we find when we examine the research on training for safety. Whether the leaders of the organization encourage the use of safe behaviours is key to ensuring workers apply what they learned about safety on the job.
Having mandatory training of employers in and of itself will not reduce workplace harassment. Employers should be held accountable to show the effectiveness of that training by reducing harassment. Here again, regular anonymous surveys of workplace harassment can be used to assess the effectiveness of training. These surveys can provide baseline estimates and can then be used to benchmark progress in employers’ efforts in reducing harassment.
This is the same requirement we have of laboratories with radioactive materials. Even though the principal investigator may not personally handle radioactive isotopes, she has to undergo training on how to handle these materials. But she is also responsible for ensuring these materials are safely stored and properly handled. Ultimately, however, if any accidents were to happen, the principal investigator would be held responsible for those accidents. We cannot afford to absolve the principal investigator of accidents if she had mandatory training. We would still hold her accountable.
In addition to having mandatory training for employers, you need to hold them accountable for preventing the accidents of workplace harassment.
In summary, I recommend you make the definition more inclusive and specific, you go beyond formal complaints of harassment, and you require employers be held accountable for preventing workplace harassment. Thank you, senators, for giving me this valuable opportunity in commenting on how scientific research can help in making Bill C-65 prevent workplace harassment.
The Chair: Thank you all for your testimony this morning.
We will start with questions, beginning with the sponsor of the bill, followed by the critic of the bill.
Senator Hartling: Thank you very much for the wonderful presentations, knowledge, passion and the good contributions and ideas on how we can make this bill better.
I see this as a turning point where something will change. I appreciate the great suggestions we can look at, in particular, the Canadian human rights suggestions. We have heard those. They are very firm and sound like things we can look at.
The consultations will continue. I am sorry you did not feel consulted enough. That needs to continue. They will continue in the regulations. I hope your voice will be there.
I know we can get the bill, do all the things we need, have the definitions and the competent people and all those processes. What do we need to do to change the culture around this very serious issue in Canada? Anyone who wants to jump in can do so.
Ms. Joe: I worked in human resource management for an Indigenous organization in British Columbia. We have well over 200 First Nation bands in B.C. We have perhaps six certified human resource practitioners and we have fewer people who work in OHS. To find someone who can understand the Indigenous community, especially from a gender perspective, is almost impossible. We need to ensure training is made available. There need to be schools that understand issues for an Indigenous community are different from those from a union community versus a non-union community.
For the women working in a number of government agencies, First Nation agencies, it is sad. We have our own little electronic smoke signal that warns us when we are meeting with certain people; that you should not be in a room alone with those individuals. That is how we are currently working right now.
Senator Hartling: Thank you very much. Anyone else?
Ms. Levesque: Creating legislative norms is a great first step. It sets expectations about acceptable standards of conduct. It shows what is expected of an employee and, especially with a rights-based approach, it empowers victims and survivors to come forward. If you use a rights-based approach with procedural fairness, victims and survivors will feel more empowered to come forward and emboldened to trust the process, and trust they won’t be, for example, victims of retaliation, which is what we see in other processes.
Having transparent, rights-based processes is important because it sets expected standards of conduct and creates trust for victims of harassment to come forward.
Senator Hartling: Thank you.
Ms. Beavers: I will add a comment about social norm change because that is what we are talking about. This requires long-term commitment. It requires financing and staying the course. Leadership is the starting point and must continue, but the financing must also be there. This must be understood to be a long-term, multi-faceted process.
I would reiterate my colleague Anne’s recommendation that the law is one critical aspect. It is certainly not the only aspect, but having that legislative framework and those human rights norms and standards come to life is one important and necessary portion of how we go about social norm change.
Senator Hartling: Thank you.
Senator Ataullahjan: I thank all of you for your testimony this morning.
To follow up on Senator Hartling’s questions, I asked the minister about the consultation process and which organizations were consulted. She said she would provide me with a list. Were any of your organizations consulted? No? I am asking all of you. Were any of you consulted in the process of drafting this bill? The minister said extensive consultations were done and, as Senator Hartling said, they will continue. Were any of your organizations consulted?
Ms. Beavers: In the initial drafting of the bill, NAWL was not consulted. We did appear before the HUMA Committee at a later stage.
Ms. Joe: That would be the same with the Native Women’s Association of Canada.
Senator Ataullahjan: How do you make the workplace safe in offices where you have two or three people working? I am specifically talking about offices on the Hill where you are working in people’s offices, with people who have power. There are two or three of you and there is inappropriate behaviour. How do we make that office safe? It is generally a young person who is working. Where do they go? How do we encourage victims to come forward? Often, if they do come forward, effectively it means maybe the end of their career in the place where they are working.
What can we do to make it easier for them?
Ms. Radhakrishnan: As I have been in the university situation where we have a lot of offices of sexual violence. When the person comes forward to complain, it is unlikely; that they will complain officially is also unlikely. If the person receiving the complaint does not have supervisory power over the person who is perpetrating the harassment then there is no recourse for them.
Right now, the way it is set up, the person receiving the complaints may have the training and they may know the law, but they may not have any supervisory power. It is important to take into account who they are complaining to.
Can you repeat the second part of your question?
Senator Ataullahjan: How do we protect the victims and encourage them? It is the end of their career, generally. They will no longer work in that office.
Ms. Radhakrishnan: Yes; indeed. You have to make it anonymous in some way, but with two or three people it is impossible. We are stuck there.
Ms. Beavers: If I could add a couple of points. The process must be victim-centred in order for a victim to have confidence in it. If it is not, victims will not come forward. That is clear in the evidence.
Second, why come forward if there is not a remedy that will be useful to the victim? The question of remedies is essential. Again, we reiterate it is important to be explicit that the range of remedies available under the Canadian Human Rights Act must remain available. There also has to be clarity about what happens to the harasser. This is an important point in the context of political and parliamentary staff.
This is why, in the initial stages of consideration of this bill, we talked about the need to have a very specific investigation of what will work on the Hill because of the inherently political nature of the Hill and because of the overwhelmingly gendered nature of the power dynamics that take place on the Hill.
One of the things we recommend is within a fairly short period of time there be an investigation of good practices for what is being done in other countries specifically to deal with violence, harassment and sexual harassment in legislatures. This is new. The issue of how workplace harassment is being dealt with in a range of workplaces is not so new. There are many good practice examples, but not so many on how to deal with this behaviour for exactly these reasons in legislatures.
Additional studies on good practices and why they are working would be beneficial so that a review of the practices that are put in place can be done and amendments made as required.
Senator Ataullahjan: I have a question specific to Ms. Radhakrishnan. I asked the minister this, too. When we are talking about harassment, I think of minorities and new immigrants to the country who have their first job and are happy to have it but don’t know what harassment is, where can they go and who are very afraid of speaking out.
How do those women come out and complain? Do they even know there is an avenue for them to complain?
Ms. Radhakrishnan: Yes, this is a problem because we are waiting for victims to complain. We don’t need to wait. Others are observing and know and if we are able to tap into that and remedy the situation without them coming forward, that will be helpful for them.
When we look at bystanders’ accounts, they are observant and are supporting the victim in different ways. Sometimes the bystanders could be more powerful and help. The total reliance on the victim is, again, a cultural aspect of how we are dealing with this. We have to trust the work unit itself or people they confided in can also be reliable witnesses and we can trust their voices.
Senator Cordy: Thank you very much to each of you. Your presentations have been excellent, detailed and helpful. I am really excited these discussions are taking place on Parliament Hill because it is the last bastion for these kinds of discussions. It is good.
The minister appeared before us yesterday and she said legislation will not solve the whole problem. We have to make changes.
I am going back to the comments Senator Ataullahjan made. Ms. Joe, when you were speaking you talked about the sending of smoke signals so you knew not to be alone in the room. I think women are pretty good at doing that and talking to one another about whom not to be alone with, where not to go and what not to do. That isn’t the way we should be living, but it happens.
We know victims are not likely to complain. On Parliament Hill we definitely have the imbalance of power. We have politicians, whether they are senators, MPs or ministers. We have a number of positions and younger people coming in to work on Parliament Hill. There is definitely a power imbalance.
Harassment doesn’t just happen to women. Ms. Radhakrishnan, you talked about cultural, racial and all kinds of things but we also have a tendency to say something is not really that serious; I can put up with it.
Ms. Beavers, you spoke about the social norm change. We talked yesterday at our meetings about the cultural change.
How do we go about making these changes? Legislation is not enough. People have to come forward so that it is okay to come forward. You are not being trivial and this is a serious matter. How do we create that environment or those environments in our workplaces?
Ms. Gatchalian, you are the lawyer. You get it when it has reached the point where parties can’t agree. You are beyond the first stage of what I am talking about. Perhaps you could comment on what happens when it comes before the law. What do we do?
Ms. Gatchalian: If I may, senator, I think you are asking what recourse, other than through complaint and investigation mechanisms, we can look to to create the societal and workplace culture change that is needed.
I think there is a lot of promise in bystander intervention training. I was involved in a Canadian Bar Association women’s forum podcast called “Not Just a Bystander” that was launched in March 2017. The idea there, drawing on the last speaker’s comments, is the burden of disclosing workplace misconduct should not fall on the direct targets or victims of that misconduct, because they are the most vulnerable and unlikely to complain.
We need to make it clear through public education, policies and in workplace training that even in the absence of a formal complaint — and this, of course, accords with best practices in workplaces — if the employer becomes aware there is a problem with harassment, whether it is sexual harassment or other harassment in the workplace, they are obligated to inquire into and investigate that complaint.
Also, it should be made clear in training, in public education and in policies that witnesses to harassment and violence — that is, bystanders — are entitled to complain and they are victims of poisoned work environments as well when they witness violence and harassment perpetrated against their coworkers.
I think we have a lot more work to do on the subject of bystander intervention training.
Senator Cordy: Anyone else?
The Chair: I think we have to move on after this response.
Ms. Joe: What I see in the Indigenous community is there are questions and no one to answer those questions for the Indigenous employees. We need to have proper education. That education has to be shared from the very grassroots to the chief and council. It needs to be a community-based education system. As non-community members come into the community, they need to be held to those same standards that the community has set out.
The Chair: Thank you. We have about 10 minutes left and three senators on the list.
Senator Pate: Thank you so all of you for being here. My apologies for being late. I had another meeting. If I have missed something, tell me to move along and I will read the transcript.
I am curious in particular, Ms. Beavers, Ms. Levesque and all of you, given the evidence you put forth in the other place and also here and in your submissions, there has been lots of talk about the need to have some particular amendments. Particularly at this time of year, there is huge pressure to not make those amendments and just get this legislation through because it is better than nothing. Sometimes that can hamper what we do.
From your perspective, if strong observations were made by this committee, how would that hamper the ability to move forward or would that be sufficient? Would you have faith we would see the types of regulations and changes we need to see?
Second, in terms of the bystander, particularly on the Hill, one of the observations that a number of us have made is the need for education for people to even know what harassment is.
I have observed many young women in particular being what I would describe as preyed upon. They perceive it as complimentary behaviour by senior men in positions of power and then they end up in a situation that doesn’t feel so great later on.
What kind of education modules do you see that could be available? Are there some already in existence we could be making part of the recommendations or is that something that should be in the regulations? Do you have any recommendations? Thank you very much.
Ms. Beavers: Thank you, Senator Pate.
I would start with a reflection on the timelines. We are very supportive of this initiative. It has been a long time coming. The importance of having a strong legal framework in place cannot be understated. However, that doesn’t mean the time should not be taken to make any amendments that are truly’ critical to ensuring the content of the bill is as strong as it could be and the implementation is going to be effective and appropriate.
There are a range of the particulars we discussed today that could appropriately be dealt with in the regulations. We know those consultations are ongoing. We feel there are some key amendments that should also be made to the act itself. Those are the ones we put forward this morning.
The second point is on education modules. Education comes in a range of different forms. There needs to be some good thought given to what the process is. It needs to be ongoing, financed, mandatory, culturally sensitive and to always have a gender lens. All those things need to be part of the process put in place for education to go alongside this act.
I also want to talk about the educative value of the act itself. Having a robust definition section of the act is critical. Ensuring the interface with the other remedies and resources available, for instance under the Canadian Human Rights Act, remain important.
Ms. Radhakrishnan: I agree with Ms. Beavers. I think having a strong definition, talking about the effects of the harassing behaviours and how it will impact the workplace will avoid ambiguity that this is hostile, impeding the worker and unsafe. That will help a lot in what is this harassment and violence we are talking about.
Senator Pate: Thank you.
Senator Martin: My apologies for being late as well.
I am hearing three key recommendations in terms of the role of bystanders and bystander intervention training. I think that is an important place. It was interesting to hear you talk about bystanders who could also be facing trauma and yet they can be part of the problem. I think that is a very important area.
With the education models, I was listening to Ms. Joe thinking about how things have to be so culturally specific. We can have this framework but there has to be a whole range of modules.
When you talk about this needing to be definitions or clauses that are inclusive and yet really specific to avoid ambiguity. I am having some difficulty. I am trying to understand this. This bill, as it is with its shortcomings and gaps — because there are so many specific exceptions and considerations to be made — it is not perfect. Would you agree this is an important step and these concerns you raise can be addressed through the regulatory process?
I know we will be going to clause-by-clause consideration. I am wrestling with wanting to make it more specific and improved with all the recommendations considered. We are under a tight timeline and I can see the days running down to its end. I want to get those assurances from you that this is an important bill for us to take that step and consider all the issues you raised as we prepare to implement the bill.
Ms. Joe: I was happy to hear a lot of the suggestions my colleagues working in the legal and training area came up with. Coming from a very nepotism-filled work environment that Indigenous people all seem to follow, I think we need to see how this bill will be applying to our First Nations and to the band work environment and what resources will be available.
Concerning the bystander issue, I have been a bystander and have lost my job because of being a bystander and making a report. There were no supports for me. The issue was sexual harassment for another friend: it took her almost two years of going through the harassment process. The mental fatigue she faced was enormous. At the end of the day she was fired.
This is a good first step. We need to have those educational resources and supports for our Indigenous women and all of our women who are facing these issues on a day-to-day basis. Otherwise, they walk away rather than fighting for their jobs and that is just not right. Thank you.
The Chair: We have just a few minutes left.
Senator Andreychuk: I very much appreciate the last intervention. It reminds me of working in some of the same areas. My experiences are about the same. I appreciate that, on the record.
If I understand correctly, the two amendments that might be the most facilitating would be the definition section, where we would change the word “means” to the word “includes” in 0.1, and we would remove the word “other.” That might be a first step in a workable definition. I have forgotten who proposed it.
Senator Hartling: I think it was Ms. Gatchalian.
Ms. Gatchalian: In my opinion, the removal of the word “other” is the most crucial amendment required at this point if you were to move forward with the bill.
Senator Andreychuk: I haven’t looked at it from this perspective and unfortunately missed one session due to the chamber sitting. The other would be adding a clause to make it clear that nothing in this bill takes away from the rights in the Human Rights Commission and the process.
Those would be the two issues that you would put top priority on to start. The others seem more process that might involve regulation and might need more testing, but those two popped out from a legal perspective. Do you care to comment?
Ms. Beavers: If I could suggest one additional amendment, that is the inclusion of specific language about the purpose of the act being to ensure human rights and women’s rights, particularly women who face intersectional discrimination in the workplace. The two pieces are to acknowledge the right to a workplace free of violence, harassment and sexual harassment and to include, in the purposes of the act, advancing gender equality and women’s empowerment. That is for women in all their diversities and recognizing intersectional discrimination.
Senator Andreychuk: I need clarification. When you talked about domestic violence and how it translates into the workplace, I didn’t quite understand. I think you have to be sensitive to what people live at home when they bring it to the office and vice versa. I wasn’t quite sure where you were heading.
Ms. Levesque: Under the Ontario Occupational Health and Safety Act, there is a positive obligation on employers to respond when they become aware or ought to reasonably become aware that domestic violence is occurring — that it is likely to expose a worker to physical injury in the workplace. There is a duty for the employer to respond.
Senator Andreychuk: Okay.
Ms. Levesque: As a feminist organization, we think it is a positive development in the law in recognizing the public/private dichotomy that often shields domestic violence from scrutiny.
It recognizes the form of violence to which women are most commonly exposed.
Regarding how domestic violence can impact a worker in the workplace, the employer cannot just turn a blind eye to that and has a positive obligation to respond. That would be a very positive addition to the legislation and make it more inclusive of women’s experiences.
Senator Andreychuk: Thank you.
The Chair: Thank you all very much. I wish we had more time for this panel, but we don’t. I want to thank you all for your time this morning. We have heard what you’ve shared.
(The committee continued in camera.)