THE STANDING COMMITTEE ON INTERNAL ECONOMY, BUDGETS AND ADMINISTRATION
OTTAWA, Thursday, February 6, 2020
The Standing Committee on Internal Economy, Budgets and Administration met this day at 8:30 a.m., in public and in camera, pursuant to rule 12-7(1), for consideration of financial and administrative matters.
Senator Sabi Marwah (Chair) in the chair.
The Chair: Good morning, everyone. Welcome to this meeting of the Senate Standing Committee on Internal Economy, Budgets and Administration. My name is Sabi Marwah, and I have the privilege of serving as chair of the committee.
I will ask each of the senators to introduce themselves.
Senator Munson: Jim Munson, Ontario, deputy chair.
Senator Loffreda: Tony Loffreda, Quebec.
Senator Forest: Éric Forest representing the Gulf division in Quebec.
Senator Dean: Tony Dean, Ontario.
Senator LaBoucane-Benson: Patti LaBoucane-Benson, Alberta, Treaty 6 territory.
Senator Saint-Germain: Raymonde Saint-Germain from Quebec.
Senator Moncion: Lucie Moncion from Ontario.
Senator Dalphond: Pierre Dalphond from De Lorimier, Quebec.
Senator Verner: Josée Verner from Quebec.
Senator Dupuis: Renée Dupuis representing The Laurentides division in Quebec.
Senator Boehm: Peter Boehm, Ontario.
Senator Tannas: Scott Tannas, Alberta.
Senator Carignan: Claude Carignan from Quebec.
Senator Seidman: Judith Seidman from Montreal, Quebec.
Senator Frum: Linda Frum, Ontario.
Senator Plett: Don Plett, Manitoba.
Senator Marshall: Elizabeth Marshall, Newfoundland and Labrador.
Senator Tkachuk: David Tkachuk, Saskatchewan.
The Chair: Thank you everyone. Honourable senators, a copy of the public minutes from December 12, 2019, is in your package. Are there any questions or changes?
Can I have a motion to adopt the minutes? It is moved by Senator Munson to adopt the minutes. Agreed?
Hon. Senators: Agreed.
The Chair: Carried. Item No. 2. Colleagues, pursuant to section 1.6.2 of the Senators’ Office Management Policy, the Subcommittee on Agenda and Procedure is required to report biannually on the exception requests it has received and the corresponding decisions. Accordingly, the eighteenth report of the subcommittee is tabled, which outlines these exemption requests and the corresponding decisions since May 9, 2019.
The report is placed before you for your information. Are there any questions? If not, we’ll move on to the next item.
Item No. 3 is a draft report containing the expenses incurred by the committee during the First Session of the Forty-second Parliament.
Pursuant to rule 12-26(2), a subcommittee should table a report within 15 sitting days of the commencement of each session on any special expenses occurred during the previous session. A copy of the report and a briefing note have been distributed in your package. As you will note, there are only two small expenses for witnesses for $776 and $3,370, for a total of $4,146. Are there any questions? I suspect we are probably the lowest among most committees.
Can I have a mover for the following motion: That the committee adopt the draft second report prepared in accordance with rule 12-26(2), and that the report is tabled in the Senate? Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
The Chair: Carried. The next item on the agenda is the order to access the in camera minutes.
Senate Administration has received a request from the appointed auditors, Ernst & Young, to consult the in camera minutes of CIBA, the Subcommittee on Agenda and Procedure, and the Audit Subcommittee for the purpose of the annual audit of the Senate financial statements.
Consistent with Canadian auditing standards and requirements, and consistent with past practice, the Subcommittee on Agenda and Procedure recommends the adoption by the committee of the following motion to grant the requested access to the auditors. A copy of the proposed motion has been circulated previously. Are there any questions?
Senator Batters: Thank you very much. I would like you to confirm for me, for those on this committee and for the public that this is consistent with what has been done in past with this particular committee, that it’s not something new.
The Chair: Yes. I mentioned that in my note already. It is consistent with past practice.
Senator Batters: Okay.
The Chair: Can I have a mover for the following motion: That a representative from the appointed auditor be authorized access to the in camera minutes of proceedings from the Standing Committee on Internal Economy, Budgets and Administration, the Subcommittee on Agenda and Procedure, and the Subcommittee on Audit for the purpose of the annual audit of the Senate financial statements; that the consultation of minutes be done on site under the supervision of a staff member from the CIBA Secretariat; and that the official representative of the appointed auditor be allowed to take notes?
It is moved by Senator Marshall. Is it agreed to adopt the motion?
Hon. Senators: Yes.
The Chair: Carried. The next item is a report from the Subcommittee on Human Resources on the draft policy on the prevention and resolution of harassment in the Senate workplace. This is further to the recommendations made in the second report that was adopted by the Senate in March 2019. This continues the committee’s efforts in modernizing the harassment policies in the workplace.
With that, I shall hand it over to Senator Saint-Germain, who is the chair of the Subcommittee on Human Resources.
Senator Saint-Germain: Thank you, chair.
On December 7, 2017, your subcommittee was given a mandate by the Standing Senate Committee on Internal Economy, Budgets and Administration to review the Senate Policy on the Prevention and Resolution of Harassment in the Workplace and matters involving human resources at the Senate.
Accordingly, further to its third report, your subcommittee presents, with unanimous consent, the draft Policy on the Prevention and Resolution of Harassment in the Senate Workplace.
By way of background, in its first report, presented on June 14, 2018, the subcommittee recommended mandatory training on the prevention of harassment in the workplace.
When it tabled its third report on May 9, 2019, the subcommittee reported that 96 % of active employees, 100 % of Senate Administration executives and 98 % of senators had taken this adapted training.
In addition, the Chief Human Resources Officer has scheduled training sessions for 46 employees and 12 managers before March 31, 2020.
An additional session will be held for new senators appointed between the summer of 2019 and the spring of 2020.
Your subcommittee then undertook a detailed review of the policy in force, entitled the Senate Policy on the Prevention and Resolution of Harassment in the Workplace.
It heard 19 witnesses, including senators, Senate employee representatives, academics and other experts in the fields of workplace harassment and workplace health and safety.
In February 2019, in its second report, entitled Modernizing the Senate’s Anti-Harassment Policy: Together let’s protect our healthy worklife, adopted by both the Standing Committee on Internal Economy, Budgets and Administration and the Senate on March 21, 2019, your subcommittee made 28 recommendations.
The draft policy we are submitting to you today is further to these recommendations. It also reflects the provisions of the Canada Labour Code dealing with harassment that are set to come into force in 2020.
Regulatory measures will also be introduced to accompany the coming into force of the code’s provisions. The policy will therefore need to be reviewed to ensure full compliance with the code and the prescribed regulations.
I now have a few words on improvements to the current policy.
The draft policy replaces, improves and modernizes the current policy in force since 2009. Your subcommittee would like to highlight the following improvements: the impartiality of the complaint process through the appointment of an impartial third party; the broader updated definition of harassment covering more types and forms of harassment; the protection from reprisal for victims and witnesses of harassment; the implementation of remedial, corrective or disciplinary measures; mandatory training on the various types of harassment for all senators and Senate employees; a new process for filing a harassment complaint; an improved decision-making matrix that takes into account the positions held by the complainants and respondents; and the use of positive vocabulary, removing allusions to bad faith, conflict, severity and circumstances and context, with the objective of encouraging victims of harassment to bring forward their complaints.
The draft policy also reflects the provisions of the Canada Labour Code dealing with harassment that are set to come into force in 2020. Those provisions are as follows: Right of former employees to file a complaint. The act to amend the Canada Labour Code stipulates that the Senate’s anti-harassment policy must apply to former employees who experienced harassment or violence within a specified time frame that will be prescribed by regulation.
Point 1.2, regarding application of the policy, states that former employees of the Senate may make a formal complaint under this policy, provided that the last alleged incident occurred within 12 months of their last day of employment with the Senate, and the complaint is made no later than 3 months after the date of that former employee’s departure.
For the definition of “harassment,” the policy uses the expressions “harassment” and “workplace violence,” modelled on the definitions in the act. Bullying and mobbing and violence in the workplace are also included under the definition of “harassment.”
For stronger privacy protections, the Act to amend the Canada Labour Code prohibits the disclosure of any information likely to reveal an affected person’s identity without their consent. This obligation is implemented in the draft policy. Confidentiality, respect for the privacy of all involved, is paramount in any harassment-related matter. All matters under this policy — for example, inquiries, complaints, mediation, investigations, et cetera — are to be treated confidentially. Information in relation to matters under this policy may only be disclosed in accordance with this policy or as required by law. Unauthorized disclosure of information may be subject to disciplinary action.
Finally, disclosure of any information that is likely to reveal the identity of a person involved in a complaint, parties or witnesses outside of the complaint resolution process and without that person’s written consent is prohibited unless required by law.
Now I have a few words on some budget implications.
One of the subcommittee’s observations further to its consultations was that modernizing the harassment policy would require strengthening the credibility of those involved in the complaint management process. This strengthening was essential, as employee representatives were unanimous in sharing their concerns about the impartiality of the current process.
That is why the committee recommends that all complaint processes be overseen by a specialized third party. To that end, the Chief Human Resources Officer would be allocated $174,550 in additional resources, beyond the existing budget. This budget request will be made directly to the Standing Committee on Internal Economy, Budgets and Administration once the existing resources allocated to the Human Resources Directorate for the policy have been fully utilized.
Once the draft policy has been approved by the Standing Committee on Internal Economy, Budgets and Administration, the chair will table it in the Senate in a committee report, including two orders of reference, to the Standing Senate Committee on Ethics and Conflict of Interest for Senators and to the Standing Senate Committee on Rules, Procedures and the Rights of Parliament, respectively.
Reasons for referring this report to CONF, after it is adopted by the Senate, are as follows: No later than April 30, 2020, this committee shall report to the Senate on the amendments it recommends be made to the Ethics and Conflict of Interest Code for Senators, so the policy can come into force. These amendments would address the Senate Ethics Officer’s additional role in recommending remedial, corrective or disciplinary measures when the respondent is a senator, and the investigation concludes the senator committed harassment under the definition of the policy; and the additional mandate granted to the committee, including provisions on workplace harassment and violence in the code of ethics.
Reasons for referring to the Rules Committee, RPRD, are as follows: No later than April 30, 2020, this committee shall also report to the Senate on amendments it considers appropriate to the Rules of the Senate. These amendments may include clarifications regarding the complementarity of provisions of the current policy in the Rules of the Senate and the relevance in clarifying the application and limits of parliamentary privilege in the application of this policy.
In giving its Subcommittee on Human Resources a mandate to review the Senate policy on the prevention and resolution of harassment in the workplace, the Standing Senate Committee on Internal Economy, Budgets and Administration, as part of its duty as an employer, showed its commitment to providing all Senate employees and senators a work environment free from harassment, a workplace that is healthy and fulfilling and that is conducive to professional, individual and collective growth.
The members of the subcommittee are of the opinion that the Senate in adopting this policy, and taking every measure necessary to ensure it is respected, will show itself to be an exemplary employer as regards the quality of the work environment. Members of the subcommittee also believe that the draft policy before you, if adopted, will not only meet the Senate’s legal obligations regarding labour relations but also underscore its commitment.
For these reasons, your subcommittee recommends that the committee recommend to the Senate that the revised policy on the prevention and resolution of harassment in the Senate workplace appended to this report be adopted; and that the committee recommend to the Senate that the Standing Committee on Rules, Procedures and the Rights of Parliament be authorized to examine and report on the appropriate consequential amendments to the Rules of the Senate; and that the committee present its report to the Senate no later than April 30, 2020.
That committee recommends to the Senate that the Standing Committee on Ethics and Conflict of Interest for Senators be authorized to examine and report on the appropriate consequential amendments to the Ethics and Conflict of Interest Code for Senators, and that the committee present its report to the Senate no later than April 30, 2020; that the revised policy on the prevention and resolution of harassment in the Senate come into force on the first day after the day on which the Senate has adopted both the report of the Standing Committee on Rules, Procedures and the Rights of Parliament referred to in paragraph (b), and the report of the Standing Committee on Ethics and Conflict of Interest for Senators referred to in paragraph (c); and finally that the committee report to the Senate that, for greater certainty, the Senate’s policy on the prevention and resolution of harassment in the workplace from 2009 and the interim process for the handling of harassment complaints currently in effect are both rescinded and repealed at the time the revised policy comes into force; however, any complaints in progress at that time continue as if the revised policy never came into force, so respectfully submitted on behalf of all the members of the subcommittee.
Senator Batters: First of all, thank you very much to all of you who are on this particular subcommittee. I know there was a lot of hard work put in over many months and it’s a very important topic. It’s important that we get this correct, so I appreciate all of your work.
I have a number of questions, but I’ll start out by saying that in the background for a portion of the fourth report, it talks about the provisions of the new Canada Labour Code amendments that are coming into force in 2020, and then it says the policy — meaning this particular draft harassment policy — will therefore need to be reviewed to ensure full compliance with the code and the prescribed regulations.
I can understand the prescribed regulations, which probably you don’t have yet, but you do have the code. Could you please confirm, Senator Saint-Germain — or perhaps there is a Senate administration person that can confirm this — that the draft policy has been reviewed by senior Senate administration to ensure compliance with that Labour Code.
Senator Saint-Germain: The answer is yes.
Senator Batters: Great. All right. Then in the confidentiality section, I’m wondering about the way it’s worded. Say that there is a case where the complainant involved in a case wants to reveal their own identity, other than in writing. For example, say they decide to do a media interview about the harassment that they may have been subjected to, would that be allowed? It seems to me to be contrary to the policy because it would not be in writing.
Senator Saint-Germain: You’re right. It wouldn’t be allowed because of the privacy and confidentiality for the complainant, witnesses as well the alleged harasser. So no, it would be prohibited unless there is an agreement between all parties.
Senator Batters: The complainant and the person alleged to have harassed both have to agree in writing, so somebody couldn’t do a media interview. If they did, they would be found to be in breach of this.
Senator Saint-Germain: It would be a breach of this policy.
Senator Batters: Okay. The next step, after CIBA adopts the policy, is that part of it will go to the Ethics Committee to be studied and part of it will go to the Rules Committee. So after CIBA passes it, it won’t come into force then; it will, first of all, have to go to those other two committees and probably then to the Senate as a whole before the whole policy can be considered to be in effect. Is that correct?
Senator Saint-Germain: Actually, when CIBA approves the draft policy, it will be tabled in the Senate and then the Senate will have to approve the two reference motions to both committees. After that, both committees will report to the Senate, then the Senate will approve, with or without amendment, the draft policy. Then it will come into force, and the current policy and interim process for harassment complaints will be repealed.
Senator Batters: Okay. Great. Just to let people know, we don’t have our committees struck yet. Hopefully that will be in the near future, but it’s not going to happen instantaneously anyway.
Senator Saint-Germain: If I may comment on that, you’re right. There is a provision. The deadline that is given to both committees is given with the possibility of the committees to say that they have specific circumstances that impede them from respecting the deadline. And as you know, there is a regular procedure for any committee to ask the Senate for a delay in tabling a report.
Senator Batters: Right. In preparing this particular policy, was the House of Commons harassment policy one of the things that was looked at? I am particularly wondering about parts that were looked at about the cyberharassment section or the social media part.
Senator Saint-Germain: Exactly. We have studied many policies, including those and the website, and we have met with people in the other place, yes.
Senator Batters: So the House of Commons does have a harassment policy that pertains to social media?
Senator Saint-Germain: As far as I know, yes. We have seen on the website —
Senator Batters: Philippe, do you happen to know that?
Philippe Hallée, Law Clerk and Parliamentary Counsel, Senate of Canada: No, I wouldn’t know. I might ask HR if they have a sense of it. I don’t know personally whether they have that.
Senator Batters: Could someone in HR let us know?
Vanessa Bastos, Lead, People, Culture and Inclusion, Human Resources Directorate, Senate of Canada: Yes, senator. We did look at the House of Commons policy. I can’t necessarily recall if they have a social media element to it, but they have two policies that we did consult in terms of the procedure to ensure we are addressing some of the same concerns that surface in the dealing with harassment issues.
Senator Batters: I think that’s kind of an important question for us to note because some of my questions pertaining to definitions and that sort of thing. It’s important to know just where these definitions came from because we’re dealing with political institutions that have some unique challenges.
Senator Saint-Germain: I will answer that as well. If you have read our second report, it was one of the recommendations. It was also recommended by the expert that subcommittee members consulted with for drafting this second report, and it’s part of the best practices. Because when you speak about the workplace now, it can be a website, it can be Twitter, it can be media that is part of the workplace and on which there is some type of harassment that is committed.
If I may, regarding the House of Commons, I was very impressed by what is posted on their website regarding their harassment prevention and management policy. It’s very well done, and if we go further than the other place, I think we should all be very proud of that because we want to be exemplary.
Senator Batters: Absolutely. We also want to make sure that we have definitions that are proper and tight enough to ensure everyone knows exactly what they are dealing with. So then I will move on to those particular definitions, or parts of it.
On the draft policy statements, so under section 1.4, the definition section, page 2 of the document that I have, under the harassment definition, I note that the definition says that by an individual that is “directed at and is offensive to another person.” Sounds like kind of a subjective definition there. And then it goes on to say that “the individual knew or ought reasonably to have known would cause offence or be unwelcome.” So “cause offence” is one thing, but “be unwelcome” sets a lower bar for that particular behaviour.
And then I further note that in the second paragraph, when it talks about a further illustration of that, it says, “demeans, belittles or causes personal humiliation or embarrassment to a person.” Again, the “embarrassment” part would be a lower bar than other types of things. And for those two particular parts, “be unwelcome” and “embarrassment,” I’m certainly all for those. I definitely want to make sure we have a very safe workplace in the Senate, but I am a little concerned that those two particular parts of the definition could lead to situations where some things might be unwelcome to someone but, objectively, really not be an offensive thing or could be embarrassing to somebody but frankly might be an appropriate criticism, for example.
And particularly when we’re dealing with something like social media, a tweet could be critical of, for example, somebody’s vote on a controversial issue. That might be embarrassing to the person who cast that vote; however, we’re in a political institution, and should that be properly considered the subject of potentially a harassment claim?
Senator Saint-Germain: You’re right, there are different levels of importance and impact in this definition. This is a definition that is recognized and is inspired, notably, by the Labour Code. All of this will be taken into account when the independent third party has to examine a complaint. Will it be eligible? There will be an investigation.
Every complaint won’t be deemed substantiated. And if it is substantiated, we have a level of impact and various levels of, I would say, measures that would follow. You can have a corrective measure, which is only apologies, confidential apologies, explanations. We have corrective measures and we have disciplinary measures, which is another level. And for disciplinary measures, you need to have done something that is not at the lowest level of the definition. So it’s a definition agreed on by all experts. It’s in the Canada Labour Code. We will have to make the needed nuances. The experts, the independent third party that studies the case will be in a position to do that.
Senator Batters: But in the manner that they do that, the independent third party will be looking to the definition that is contained in the very policy. I don’t see in this particular provision, specifically set out, that if it’s unwelcome or embarrassing behaviour, as far as this, it would meet the policy definition. So it would be up to these different people to decide. That would potentially, under the definition, fit the definition of harassment, even if it’s not meant to.
What we really want to concentrate on is maintaining a safe workplace, but at the same time, we don’t want to be concentrating on behaviour that just might not be intended to fit what the definition is, so we want to be very careful about the definitions that we put in.
When you’re saying that it comes from the Labour Code, does the Labour Code contain the language of “embarrassing” and “unwelcome” in there, for example? Is that where it comes from?
Senator Saint-Germain: I will require, perhaps with your permission, Mr. Chair, the advice of the law clerk because we work closely with them, and they are the experts regarding the laws, the code and so on.
Mr. Hallée: With the information that I do have, because I came very late in the process of development of this policy, I think it was the consultant that had been hired to provide the basis, the root of this policy. When I look at the amendments to the code, from what I can see here, I don’t see the word “embarrassment.” I see “offence,” that could cause offence to a person, which seems to be close to the notion of embarrassment, I think.
Senator Batters: This one has both. It says, “cause offence or embarrassment.”
Mr. Hallée: We would have to actually follow up and see where the word “embarrassment” came from originally.
Senator Batters: Right. What about “unwelcome?” Is that in the code?
Mr. Hallée: I would have to get back to you on this one.
Senator Batters: Yes, that would be important because to me, it doesn’t seem to be the type of technical, legal language that I would usually see in this sort of thing. The other point I want to concentrate on just briefly are the few lines dealing with cyberharassment and cyberbullying. It talks about email, instant messaging, social networking sites or text messages to harass, threaten, embarrass, or target another person through denigrating or humiliating comments, spreading rumours, circulating inappropriate pictures, et cetera.
That’s quite a broad definition as it is defined. I want to include “embarrass or target another person.” Again, we want to make sure that we are targeting the particular behaviour that we want to really be focusing on here. We don’t want to be dealing with situations where perhaps — again, we are in a political institution — there may be criticism going back and forth on social media about votes, about that sort of thing. “Embarrassing or targeting” is a subjective element. The fact it says “et cetera” at the end, when we’re dealing with a definition, makes me a little nervous because it leaves it very wide open. I’m wondering where that particular definition of cyberharassment or cyberbullying comes from.
Senator Saint-Germain: It comes from the experts we consulted and from other policies that we have studied. So it is important and it is part of the occasions that any member of the Senate or employee has to intimidate or to harass. Once again, if there is a complaint, this will have to be deemed eligible by the independent third party. It will be appreciated with regard to the content, to the elements, so it will be case by case. We cannot appreciate it now and say “embarrassment” is too strong, we can include it or not. It will depend.
Once again, not all complaints are substantiated after an investigation. We need to make sure all possible occasions for harassing or intimidating are included in the policy and they will be investigated if there is a need for that and if it is eligible.
Senator Batters: Yes, but it could be eligible if it meets the definition in the policy, which, as I’m pointing out, could mean a wide variety of behaviour. I want to make sure that the resources we are putting towards this are used to make sure that substantial harassing behaviour does not happen in the Senate ever. That’s not acceptable. I agree that cyberharassment is definitely part of the whole situation.
At the same time, we currently have had a situation that has been well reported in the media about a former senator and his harassing behaviour towards his former employees. Completely unacceptable. We want to make sure that situations like that are covered very well under this policy and that tweets, which might be critical, don’t become the focus. I see later when we’re talking about the number of potential complaints that could be expected, according to the backgrounder provided here, it can go up very quickly if we get into a situation where the intent is not made very clear by the people that are addressing this at this committee. So if there is any background that I could receive about where those definitions came from, it would be very helpful.
Senator Saint-Germain: With pleasure. I want to comment on your statement regarding this individual who was a senator and whose behaviour was reported in the media. This policy wasn’t drafted only to address these situations, and this type of situation should be addressed very soon. The bar is higher for having our workplace be a safer environment and, I would say, a positive workplace environment.
When you speak about the votes, senator, it is normal in our environment that a senator votes one way, another the other way, and I don’t believe that would be part of a complaint under this policy. A vote is a vote. We are all free to vote the way we like. It’s not about that. It is about behaviours that are not positive, that have a detrimental impact on other people in the Senate and on our workplace in general. So this former senator is not the reason this policy was drafted.
The Chair: Senator Tkachuk, you had a point on this particular issue?
Senator Tkachuk: As you know, I’m on the subcommittee and I’m fully supportive of the policy we presented. The thing about Senator Batters is that she definitely can pick out little problems that cause me a problem. What she importantly points out is that when our words are not clear, especially in the environment we live in — and I have some experience on that with Internal Economy, so I hope Internal Economy takes that into account — there can be an audit. The steering committee referring the senator to an audit is supposed to be confidential. It leaked like a sieve. Right? So here we are with headlines about someone being audited. As soon as the media write about someone being audited, you’re done. It doesn’t matter if the audit comes out saying you are totally clean, because they never print that. No, they don’t. That’s the way it is when we’re public figures. That’s where the problem is.
We were talking about this, but I know, Senator St. Germain, you say, “Well, it will be investigated and it’s confidential.” I guarantee you, if it is about a senator, it won’t be any time at all and it will be in the paper. So a senator being investigated for harassment will be in the paper. Even if the investigation finds that that tweet was nonsense, it doesn’t matter anyway.
I say to protect yourself, we should find a way to tighten up those two words so this does not happen, because everything will leak. It always does, it always has in the past and it always will.
Senator Saint-Germain: Senator, you are right. We have discussed that and, I would say, very interestingly. This is why it is important to refer to an impartial third party outside of the Senate. This is also why we refer to CONF. Let’s suppose the complaint is against a senator and it is deemed substantiated, we have three levels. It may only be something that would require remedial or corrective measure. For instance, coaching or a meeting or a kind of get-together with experts. This won’t go public because this would then be referred to a subcommittee of CIBA and this would be confidential. All parties, including the witnesses, the complainants and the alleged harassers are linked with confidentiality. They can have disciplinary measures and it can be very strong. This is why we insisted — and I insisted — on our report about that. This is really important and it is a matter of fairness, and you are right.
The Chair: Senator Batters, if you have any further questions, could you wait until round two?
Senator Batters: Of course, yes.
The Chair: There are others in line.
Senator Tannas: I wanted to get clarity on a couple of things, first of all on what we just talked about. You can imagine how difficult it is. If there is a tweet, “You are an idiot,” and it is senator to senator, it’s going to get treated one way. A senator to a staff member, a staff member to a senator, a staff member to a staff member, all of those things have different connotations. We will need expert third parties in confidence to make sure that those are handled with common sense. They all have different weight.
The question I have, Senator St. Germain, is around the references to the Rules Committee and the Ethics Committee. Am I to understand that we’re asking them, or we would ask the Senate to ask them to report on the required rule changes that they need or changes to the ethics code to accommodate this policy? We’re not asking them for their opinions and suggestions on how we ought to change this policy. Is that correct?
Senator Saint-Germain: It is correct.
Senator Tannas: Thank you.
Senator Moncion: I wanted to add to the comment on the definition. It is meant to be inclusive and it is also meant to change behaviours, so that people think before they tweet, text or post. So there’s a second side to that definition, where we hope that, in time, behaviours will change or people will think before they act on different things and also the way they act toward each other. So it is a broad definition.
Senator Dean: First of all, I applaud the many people who have worked on this policy. It’s a terrific policy. There is no doubt that policies can be tweaked. It’s important. It’s way beyond its due date, and I certainly wouldn’t want to see any undue delay applied in getting this thing finalized. People have been hurt in this institution. They have been bullied; they have been harassed. We know that. They have not had the protections that have been afforded to employees in other institutions. They’ve not had access to due process. I’m very pleased to see this instrument come to a conclusion and I want to thank everybody who has worked on it.
One of the important things about this policy and the importance of the definitions — and I think we all agree on this — is that political institutions, and certainly the Senate of Canada does not get a pass, in any way, shape or form, on harassment, discrimination and bullying, through any medium. And that includes social media.
So, yes, we have to be very clear about definitions, but the time is now to get this important protection in place. I don’t think it’s time to revisit the importance of the inclusion of social media. We’ve had that discussion here on several occasions, and I recall myself and Senator Plett being absolutely on point with this.
Those of us who have been involved in developing workplace harassment policies before will know that we always reach the point we are at today, where we are a little bit worried about some definitions.
I would just say, as my closing point, that one of the purposes of these sorts of policies is to stop and make us think. The importance of words in policies is to stop and make us think about how we act, what we say, how we treat others, that late-night tweet or email. That can be a little bit uncomfortable, and I’m sensing a little bit of discomfort here about sort of what might go wrong. That’s the point. This policy should make us uncomfortable in thinking about our behaviour. That is one of the points of it.
I’m happy to revisit a word here or there, but let’s get this done. Let’s accept that this is something that is overdue, that we owe to one another, that we owe to our staff and colleagues in this institution, and let’s move on with it.
Senator Plett: I cannot disagree with probably 95 % of what Senator Dean just said. This is overdue. We know it’s overdue. I want to thank the subcommittee for working on this as well. But to infer that our debating this and not approving it at the first meeting where we are actually discussing it is undue delay, I have a problem with. Delay is not always necessarily undue.
We got this document on Friday, a week ago tomorrow. This is the first week back. Most of us have been fairly busy this week with other things, getting started in the chamber. Last week, Friday, many of us were still on vacation and probably didn’t spend a lot of time looking at this.
Then we come to a meeting. Senator Tkachuk, who is on the subcommittee, says he all of a sudden feels a little uncomfortable with some things because of the points Senator Batters raised. I also feel a little uncomfortable with some of the things Senator Batters raised, especially when we put words like “et cetera” in definitions. My word; what does “et cetera” mean? That’s an unacceptable word in the definitions. At the very least, something like that has to be struck from the definition. If we want to have definitions, let’s define something. “Et cetera” is not defining anything.
Colleagues, I’m not going to vote for delaying this, but let’s be sure we have the best possible document we can get. And is this the best we can do? Yes, we put our trust in a group of very knowledgeable people, who have obviously spent a lot of time, more than the last week, looking at a document. I do not want to belittle any of the work they’ve done, but when we want to accept a document that has in its definitions the word “et cetera,” it sounds to me like, “Well, this is the eleventh hour and we just can’t go on anymore. We have to do this, so let’s put in the word “et cetera” and that will cover anything else that we’ve forgotten to cover.”
I’m sorry; I have a problem with that. Again, waiting until a week from next Thursday to approve a document is not undue delay if we were, in fact, to do that. That’s using common sense and saying let’s get something right.
Senator Saint-Germain: We gave examples, and we should have perhaps written — it is easy to amend — for example, because it was recommended by the experts that the policy be very pedagogical and clear. So we can work on this. But I want to tell you, senator, it is a light week here in the Senate. We don’t have —
Senator Plett: Not for all of us, it isn’t.
Senator Saint-Germain: I’m working very hard as well. But we sent it last Friday. First, it is not 100 pages. Second, we will have other opportunities to comment and amend. First it will be tabled in the chamber. After the chamber, if it is adopted, the order of reference to two committees will bring this discussion back to the chamber.
So I do believe that adopting this report today is not the last step for commenting on it. This is why the subcommittee recommends the adoption of the draft policy, for the other steps to move forward.
Senator Seidman: I would like to, of course, second all the people around the table who have said we can agree — the policy is long overdue — and to thank the subcommittee for all the hours and serious thought they’ve given to this. It’s much appreciated.
I would like to just ask a question for more detail on 1.6, the impartial third party on page 4. And I’d just like a little more information because what we say here is that the impartial third party will be an external firm retained by the Senate to manage all aspects of complaints under this policy. First, is this an ongoing contract so that we retain an impartial third party for the eventuality that there will be complaints? Second, should we describe, in some way, particular requirements this impartial third party would have? Should there be something more descriptive around the kind of firm that we’re thinking of hiring for this?
Senator Saint-Germain: This is a very good question, and we’ve thought about that. First, there is no ongoing contract related to this draft policy, but there is an ongoing contract with an external investigator under the interim investigation process that this committee has decided.
Your question is related to the type of contract that would be provided. It’s a contract related to professional services, which is very important, and you will have noticed that CIBA will have to approve this contract in order for us to make sure that we receive the required services at the best possible price, with the experts that we need, and that we are in control of the billing. I happen to know, personally, the independent expert that has been consulted by the HR directorate. I wasn’t aware that this expert would be consulted. And I also spoke with her. I can assure you that the numbers that we have, the estimates, are realistic. And it is very important — we have to insist on it — that the first goal of this policy is to prevent. So we will have prevention activities. We have had some and we will have others. These activities will be in-house. I’m sure that the HR directorate will work very closely with our communications directorate. They are excellent, very creative and not very expensive. So this committee will not only approve the contract, but we will be able to influence the request of the Senate and to control the fees that we will have to pay.
Senator Seidman: Just so I’m clear that I’m understanding your explanation, senator, we will only look for a contract to an external firm when we receive a complaint. Is that what I’m hearing?
Senator Saint-Germain: No. Before that, we will need an external firm when we receive a complaint, but we will have to be ready, when we receive this complaint, to have access to this firm. However, currently, the HR directorate has a contract with a firm. And when there are complaints, they refer to this firm. But it will be a different one.
Senator Seidman: That answers my first question, which was whether we had an ongoing contract. We do; it is a retainer.
Senator Saint-Germain: We do, but under the current policy, if I may say that.
Senator Seidman: And this new policy would perpetuate that.
Senator Saint-Germain: It will be a different one. CIBA will have to decide on the content and what type of services we would like, because some services will be provided by the independent third party, which are not provided now by a third party.
Senator Seidman: Okay. Thank you.
Senator Dupuis: I have something to say about the definitions. As we study the definitions in the policy, we need to keep something in mind. Section 1.4 refers to the Canadian Human Rights Act, and rightfully so. When we talk about harassment, then, we take a position on discrimination. The Canada Labour Code imposed certain requirements on Parliament, not just the government. Parliament is subject to them as well. Members of Parliament have more stringent requirements than senators do. Whether it’s people who work for the Senate or the general public, which funds the Senate, we need to ensure everyone understands that the policy we are adopting is clear enough to convey that discrimination and harassment of any kind is unacceptable in this chamber. I think it’s extremely important to say so.
I have no issue with removing “et cetera” and replacing “such as” with “including” in English or “notamment” in French, as we often see. I think that the actual spirit has to be sufficiently clear and that the reference to the Canada Human Rights Act is fundamental. After all, no matter what your intention was, if you did something that offended someone, whether you tweeted it or said it out loud, the effect it had on the person in question is central to the definition.
Senator Forest: I’d like to commend all the members of the subcommittee. This work is outstanding. We are engaged in a process that respects our institution and its authorities. Let’s not forget this is a policy on the prevention and resolution of harassment. Let’s hope that, going forward, the policy will bring us to the forefront of prevention and reduce the need for resolution. I think that’s the idea behind the policy, and the effort to make that a reality is highly commendable. Of course, we can improve certain things along the way, but we must adopt the policy today. This is a first step for the Committee on Internal Economy, Budgets and Administration. Next, the Senate will refer the draft policy to the Standing Committee on Ethics and Conflict of Interest for Senators for analysis, after which, it will come back to the Senate, so there are still a number of steps to go. The senators who were entrusted with this have done an outstanding job.
Senator Dalphond: Harassment of any kind is a very serious matter. Everyone has the right to a safe and healthy workplace. That must be the reality in every workplace, including the Senate. In fact, the Senate should lead by example.
I am glad to see that we have before us a very comprehensive report that aims at providing measures to prevent harassment and to improve the workplace environment, such as mandatory training. This should always be the priority. Information, education, training and clear policies are key to a safe and healthy workplace.
Nevertheless, if misconduct occurs, we need a process that is efficient, fair and trustworthy. I’m glad to see that the draft provides for a process managed by an independent third party with clear steps and short delays. There might be some adjustments to make, at least to a definition or two, or another step here or there. But that can be done at a later stage, and I welcome this excellent draft and wish that we adopt it and send it to the Senate for consideration.
The last thing I’d like to say is that the Senate has failed in the past to provide a safe and healthy working environment. Let us not forget that. Our work will not be done until the Senate — both at the committee level and more broadly — has made the necessary changes to rectify situations in which people’s right to a safe and healthy workplace was violated. Thank you.
Senator Boehm: First, I’d like to say that I very much support this draft policy and applaud the work of the Human Resources Subcommittee in developing it. It’s important, as other colleagues have said, to demonstrate that the Senate is working to be — and more importantly, is willing to be — a modern workplace committed to providing a safe, respectful work environment for everyone who works here, senators and employees. And I think we also owe a renewed policy to our staff and all Senate employees, especially given the hierarchical environment in which we work. It’s just a fact of life.
I am pleased there was significant consultation with staff on this new policy and that their concerns were taken into account. For example, on page 3, in the background document, the credibility of people involved in the complaints management process was a concern for staff. The subcommittee heard that and staff were involved in sharing their concerns about the impartiality of the current process. I think this, of course, leads to the specialized third party recommendation as well. In any modern organization, you have to listen to staff, you have to engage. And that’s at all levels; certainly with bargaining units as they exist but with others as well.
As to the definitional aspects that have been raised, I do think that’s important as well and, as Senator Dean said, I think we can get into some of the “wordsmithing.” I notice that on page 2 the entire section on definition says “harassment includes,” so with “harassment includes” and with a strategic placement of “such as” or “for example,” we can get rid of an “et cetera” or something like that. These are little precisions. I agree they are important, but I don’t think that should derail us from moving forward to approve the draft document.
The Chair: Any further questions?
Senator Batters: For example, on the point that Senator Dupuis raised and that Senator Boehm briefly commented on, under the “harassment” definition on page 2, there are two paragraphs that refer to those unwelcome and embarrassing words that I referred to before, but it’s the third paragraph under the “harassment” part that says “it also includes harassment based on the prohibited grounds of discrimination under the Canadian Human Rights Act.” Then it sets out the different prohibited grounds. It’s not giving what is the only part that can constitute harassment. All of those other things fall before that, and then it just adds to that, so I wanted to make that particular point.
One thing I noticed, and one of my colleagues also noticed when looking at this policy earlier, was the time limit to file a complaint. For example, if it’s a former employee of the Senate, the incident would have to occur within 12 months of their last day of employment with the Senate. Then that complaint would have to be made not later than three months after the day the employee leaves the Senate.
As a result of this draft policy, Senator Saint-Germain was saying earlier that it was not based on the situation of former Senator Meredith, but in fact this particular draft policy would not even potentially apply to those former employees because they left Senator Meredith’s office long before this particular thing. Was that kind of situation taken into account, that sometimes it may take people who have been victimized in a particular office longer than three months after they leave the Senate to even be able to make that sort of a complaint?
Senator Saint-Germain: Well, the current policy applies, but this policy will be a new one and it is taken into account because the importance for the employer and the employees to have an intervention in a timely manner is something very significant. The experts we consulted deemed that these time frames are appropriate, so I don’t see any issue with that. Currently, this new policy, when adopted, won’t apply to former employees who were not employed in the Senate in the last year before the approval of this policy.
Senator Batters: I was using it more of an example. Hopefully nothing like that ever happens again, and I know that this policy is a part of the process to make sure that it doesn’t happen again, but if it did, that would only be giving employees three months after they leave the Senate to be able to make those sorts of complaints so I just bring that up.
Also, there is a part in the report that refers to the Senate Ethics Officer having an additional role in recommending measures if a senator is involved — if the respondent, the person being complained against, is a senator. So that additional role the Senate Ethics Officer is being given under this could potentially end up being an onerous responsibility.
Is it being proposed that the Senate Ethics Officer would receive additional budget or increase in the current situation where the role of SEO for the Senate is basically a half-time position? Some of these situations can take a lengthy period of time to resolve and we’ve seen some very lengthy times that we’ve waited for reports from the Senate Ethics Officer in recent days and we want to make sure that these situations are dealt with, as you say, in a timely manner.
Senator Saint-Germain: It will be up to the Senate Ethics Committee to discuss that. However, we have talked about that, and you will remember, senator, that in his report on June 28, 2019, the Senate Ethics Officer was recommending to CIBA, as an employer, to take into account the code of ethics and to make all necessary recommendations for this code to be amended with regard to the new policy in order to include harassment.
As for the financial impacts, the Senate Ethics Officer won’t be the investigator, so I do not believe that it will be so important as a financial impact. But, once again, the Ethics Committee will have to think about that.
Senator Batters: On page 3 of the policy, under the definition section again, 1.4 talks about the definitions of “bullying” and “mobbing.” “Mobbing” is defined, “bullying” isn’t specifically. But I’m wondering if that very first sentence, which says, “using force, threats or coercion to accuse, intimidate or dominate others,” is supposed to be the definition of “bullying?”
Senator Saint-Germain: It’s the definition we have received from the expert. It is a recognized one in the —
Senator Batters: I’m wondering how it might be better worded so it’s a little clearer to say “bullying means,” just to add in those two words so it’s clear that that’s the definition of “bullying.”
Senator Saint-Germain: We can make an addition on that.
Senator Batters: And earlier, when someone was asking about the role of the impartial third party — I think it was Senator Seidman — and asking about the ongoing involvement of the impartial third party, I just point out on page 4 that one of the different duties of the impartial third party is to manage an anonymous harassment prevention hotline for all persons working at the Senate. So that would be something where we would therefore need to have an impartial third party in place at all times and under contract so they could manage this hotline, correct?
Senator Saint-Germain: Yes, that’s correct. It has been taken into account in the estimates.
Senator Batters: Okay. Then on page 13, it’s talking about the different authorities, who the decision-making authorities are, who the notified authorities are and who the appeal authorities are for each of these different situations. In situations in this part and later on, I think the decision was made — for the notified authorities parts dealing with senators and senator’s staff — that it would be the leader of each particular recognized party or recognized parliamentary group. I’m wondering why the leader was chosen rather than the whip role, which is more traditional?
Senator Saint-Germain: It’s written “the leader or his designate.”
Senator Batters: I see, okay, so that was taken into account.
Senator Saint-Germain: They are also bound by the confidentiality.
Senator Batters: I’m sorry, could you repeat that?
Senator Saint-Germain: They are also bound by confidentiality. It’s confidential at their level as well.
Senator Batters: Yes, and hopefully everyone takes that very seriously but, as Senator Tkachuk was rightly pointing out, unfortunately sometimes that doesn’t happen.
In the additional information, near the back of this particular document, under the second page of that part — it’s not numbered, but it’s the second page of the additional information near the back — under the “Parliamentary Privilege Considerations for the Senate,” there is a part in there that some of these things will get referred to the Rules Committee. However, given that the very brief interim policy that was put into place to wait for this draft policy and to finalize that policy — it’s just a few paragraphs long — one of the things that interim policy did not address, as I have discussed at this committee before and that steering then had to deal with as a separate portion of that, is the consideration that parliamentary privilege has on these types of activities.
Would it perhaps be better to include more in the actual policy to set out those very things that steering had to include in the interim policy that because of parliamentary privilege, like things dealing with the Senate Chamber need to go to that particular body, that committee needs to go to that particular body because of parliamentary privilege considerations? Shouldn’t that be somewhere in the policy rather than just a document that is not attached to it at all?
Senator Saint-Germain: The goal is to refer it to the Rules Committee to complete the policy regarding that. It’s about time that the Senate states when parliamentary privilege applies and when it doesn’t apply.
You will notice as well, senator, that we don’t want to have competing investigations or competing processes, so some issues are left to the Speaker of the Senate to address, to tackle and to manage, for instance, decorum in the chamber and other issues under this policy. It has to be very clear where parliamentary privilege applies and where it doesn’t. But it’s for the Rules Committee to make its recommendations to the Senate. You are right that it will have to be included in the final policy.
Senator Batters: So your intention is that the Rules Committee will deal with this and get the appropriate wording; it will not only deal with it as part of their report but will include something in the actual harassment policy?
Senator Saint-Germain: The Rules Committee will recommend in its report to the Senate if and where parliamentary privilege applies. So it will be clarified. Then we will have to make the decision. Normally it will be included in the policy as well as the recommendations of the Ethics Committee.
Senator Batters: I think that’s a good idea. Because then people can go to one place, know exactly what they are dealing with, rather than looking at a policy or a rules report and that sort of thing. Thank you very much.
Senator Munson: I do want to applaud the architects of this new report and proposal. It’s modern. It’s really attached to the reality in which we live.
I need a point of clarification. It’s becoming increasingly evident that people are using the word “non-recognized.” It has been recognizable here this morning on the notified authorities — how does this work towards those of us who are non-affiliated? How does the apparatus work in terms of whom reports to whom? For example, in the non-affiliated progressive group, we have a leader, we have a deputy leader, we have a liaison and we have three of us following. If there is a serious complaint, what takes place? In here it talks about “notified authorities,” and there is no notified authority if the respondent senator is unaffiliated. It almost feels like you’re a non-entity in part and parcel of what is taking place here.
We have staff, we have senators, and we feel that a senator is a senator is a senator. How does this new harassment policy affect those of us who are non-recognized or non-affiliated?
Senator Saint-Germain: This is my personal answer because I have not consulted the subcommittee on that. Let’s suppose that the policy is in place. Common sense would lead someone to inform their leader. Common sense would lead to that. You have a leader and, as you say, you don’t want harassment and you want all issues to be fairly treated, so your leader or a designate would be informed.
Senator Munson: I understand that. But why wouldn’t it be written into the proposed harassment policy that the leader or the designate of the senator’s recognized party or recognized parliamentary group or the non-affiliated senators — why wouldn’t that be written in?
Senator Saint-Germain: I would suggest that we ask the Rules Committee to give us advice on that.
Senator Munson: I think it’s important. I’m not going to hold this up. I really support this. As I said, I applaud the tremendous work, but I think there may be a little loophole here that can be put in stone when we debate this in the Senate.
Senator Saint-Germain: Yes, we’ll ask the Rules Committee to give us advice.
The Chair: I think we have come to the end of questions. I would like to make a few closing comments. Having heard the debate from all sides, it’s virtually impossible, in my view, to cover off every situation of harassment that can arise in the future. It’s impossible to do that. I suspect there will always be one or two words in every policy that are objectionable to someone. Senator Tannas has rightfully laid out that in the end, common sense must apply. Hopefully we can have common sense when we apply this.
There will be many more opportunities to amend words and change words. This is not the end. There will be other opportunities in the Ethics Committee, Rules Committee or even in the Senate. So I would suggest that a new policy is long overdue and, rather than further delay this, we move forward, we approve the policy at table, hopefully unanimously, and then carry on with the process.
With that, do I have an agreement that we table the report in the Senate?
Some Hon. Senators: Agreed.
The Chair: All agreed?
Senator Batters: On division.
The Chair: Motion carried, on division.
Honourable senators, do we have any other public business? I believe there are two other items and other matters.
Senator Munson: I have a brief point, chair.
I move that the Honourable Senator Munson replace the Honourable Senator Dawson as a member of the Audit Subcommittee for a meeting scheduled to take place at 11:30 today.
The Chair: We are having difficulty getting a quorum at the Audit Subcommittee, so we need Senator Munson there. I hope everyone is agreeable.
An Hon. Senator: His expert financial acumen is needed.
Senator Plett: We should take that under consideration. I think we should vote next week.
Senator Munson: I recognize that.
The Chair: Can I take it that we are all agreed?
Hon. Senators: Agreed.
The Chair: Carried.
Senator Saint-Germain: I have another motion.
I move that Senator Omidvar replace Senator Plett as co-chair of the Joint Interparliamentary Council beginning immediately.
Senator Plett: I find it extremely troubling that you would bring that here without talking to me about it. So I am definitely opposed to that.
Senator Saint-Germain: I thought it had been agreed.
Senator Plett: No, it was not by any stretch of the imagination.
Senator Saint-Germain: It was not? So I will withdraw this motion.
Senator Carignan: Now you know that’s coming.
The Chair: With that, we will move in camera. That ends the public portion of the minutes.