Proceedings of the Standing Senate Committee on
Human Rights
Issue 1 - Evidence, December 3, 2007
OTTAWA, Monday, December 3, 2007
The Standing Senate Committee on Human Rights met this day at 4:05 p.m. to examine cases of alleged discrimination in the hiring and promotion practices of the Federal Public Service and to study the extent to which targets to achieve employment equity for minority groups are being met.
Senator A. Raynell Andreychuk (Chair) in the chair.
[English]
The Chair: Honourable senators, the committee is continuing its examination of alleged discrimination in the hiring and promotion practices of the federal public service and its study of the extent to which targets to achieve employment equity for minority groups are being met.
Our first panel is the Public Service Commission of Canada. In that regard, we welcome Maria Barrados, President of the Public Service Commission of Canada. I thank you for coming out on a very cold and difficult day, as well as for continuing to support our work, to bring us the updates and to give us your opinions as to the progress toward the four target groups.
With Ms. Barrados are Joanne Lalonde and Paula Green.
I welcome all three participants of this panel.
We are interested in an opening statement, following which we will go to questions. As you know, we produced a report in which we put forward certain recommendations of what we thought would be helpful and necessary to attempt to finally meet all target groups. We had particular concerns vis-à-vis the visible minorities and the difficulties in achieving the targets for this group. However, we were equally concerned that there are problems in the other three areas that still need addressing.
With your opening statements today, I trust that you will be addressing these ongoing concerns.
Maria Barrados, President, Public Service Commission of Canada: Madam Chair, thank you for inviting me again to this committee to discuss employment equity in the federal public service.
[Translation]
On November 13, the Public Service Commission tabled its 2006-2007 annual report in Parliament. The report covered the first full year of operation under the modernized Public Service Employment Act.
We have distributed a handout which has two extracts from the report; they provide more recent statistics on the representation of employment equity groups in the federal public service as well as trends in the recruitment of designated groups over the past five years.
[English]
While three of four employment equity groups are represented, a gap persists for visible minorities. We have seen an overall increase in hiring in the public service, but we have not seen an increase in the hiring of visible minorities. While overall recruitment rose by 9 per cent, the recruitment for visible minorities dropped from 9.8 to 8.7 per cent. This means that the gap we now have will only continue to widen.
We have been studying why this gap persists. We know that visible minorities continue to be interested in joining the federal public service. In 2006-07, visible minorities accounted for 21 per cent of applicants in external recruitment processes. We know that visible minority applicants met the posted qualifications that they have post-secondary education proportionately more than other applicants. As well, visible minority applicants are not being eliminated at the first screening and are completing the application forms correctly.
To get a better sense of what is happening, we are taking a number of actions in our continuing research on this issue. We have launched a survey in March 2007 to gauge applicants' views and experiences on the different steps of the recruitment process. This result will be released in our next annual report.
The PSC will also be tracking the performance of employment equity group members in screening assessment and selection stages of the recruitment process.
Specific information will be collected and analyzed from departments and agencies using a sampling methodology, starting in March 2008.
The results from the various research streams and data sources will be integrated and analyzed to determine patterns with respect to the performance of employment equity groups, in particular visible minorities in external recruitment. We expect to release our report at the end of 2008-09.
We have also engaged Statistics Canada to conduct a study to determine the annual recruitment rates of visible minorities, including the ones into the executive category, which would be required to achieve a representative public service within a reasonable time frame. We expect this study to be completed by March 2008.
[Translation]
The PSC knows that the Public Service Employment Act provides opportunities to improve representation. As we noted in our annual report, most organizations have not yet developed the staffing strategies needed to effectively make use of the new definition of merit, such as current and future operational requirements and needs, including employment equity. These identified needs form the basis for staffing strategies that would address gaps in representation. Without cohesive strategies, planning information is largely focused on individual staffing actions. This is not sufficient to support the new definition of merit. To date, only 12 departments and agencies have developed staffing strategies that include a plan to address gaps in employment equity representation. A list of those organizations is appended to my remarks.
Under our fully delegated staffing system, the PSC monitors how departments and agencies exercise their responsibilities under the PSEA, including employment equity. We also review our policies and guidelines to ensure that we are providing organizations with the support they need. In October 2007, I sent a note to all deputy heads providing concrete guidance on using the enabling provisions of the PSEA and applying our policy on employment equity in the appointment process.
[English]
This brings me to the benefits of a concerted approach. We have found that focused collective staffing initiatives, combined with strong leadership, can result in significant progress in improving employment equity representation.
The PSC led a government-wide effort to increase the representation of visible minorities in the executive group. We successfully established a pool of 41 pre-qualified candidates at the EX-01 level. To date, departments have made 27 appointments from this pool, resulting in a significant increase in visible minorities entering into the EX group.
Our first pool of pre-qualified candidates expires in February 2008. We are developing plans to put a second pool in place.
The PSC also collaborated with the Canada Public Service Agency and the Human Resources Council in a collective recruitment for personnel administration, the PE group. We have distributed a chart that illustrates the steps involved in this post-secondary recruitment process for PE-01 and PE-02. Employment equity considerations were integrated into the process. The results were impressive. Visible minorities made up 21.4 per cent of appointments.
I am encouraged by the creation of the Visible Minority Champions Committee, under the leadership of Morris Rosenberg, the Deputy Minister of Health. I believe this kind of senior leadership is essential.
We will continue to work with departments to provide advice, assessment, tools and resources. We continue to stress the importance of developing employment equity strategies that encourage delegated managers to show leadership by thinking longer term rather than looking to meet their short-term needs only. We want to see concrete results.
I will be pleased to answer your questions.
The Chair: Thank you, Ms. Barrados, for the introduction.
In our report, we indicated that encouraging managers appeared to be a problem. While you can set your targets, if people do not understand that they will be accountable for them and judged and appraised by what they deliver, we will not make inroads. We recommended that any raises or incremental pay for senior management be tied to the concept of how they fared in establishing policies, practices and implementing employment equity targets. Are you going so far as that? I read here encouragement, not consequences.
Ms. Barrados: Thank you for the question. The Public Service Commission has a very clear statutory role, and our role is set clearly for staffing and assessment and non-partisanship in the public service. We do not have a role in terms of providing performance pay to deputies or to managers. We do, however, provide feedback to deputy ministers on how well they are doing on their staffing and how well they are doing in terms of closing the gap on employment equity. We do write to the Clerk of the Privy Council with our assessment of areas that are doing better than others. We are encouraged by the move that has been taken by the clerk to ask all departments to post their plans on the website. There is now a concerted effort to have staffing driven by planning, which is a very essential step in ensuring that everyone in an organization understands what is expected.
The Chair: I note you have 12 organizations that have provided staffing strategies. Is there a time limit set for the strategies to be implemented and completed?
Just for information, I note you list the Office of the Commissioner for Federal Judicial Affairs, but I take it the Department of Justice has yet to comply?
Ms. Barrados: The list provides the staffing strategies that dealt with employment equity. We are in a new world, and our first requirement for departments was that they have a plan, which happily they have made significant process on. Eighty-eight per cent have plans, and the rest of them were in the process of developing them.
The next set of requirements relates to having staffing strategies that fall out underneath those plans. This is where we expect to see employment equity considerations. This is where the number on the list is rather short. We have 12 that had employment equity as part of their strategies.
Our bar for those strategies was not very high this first time around; we were requiring some evidence that there were some strategies in place. This is a new regime. It will take a little bit of time to have all the pieces in place. We are encouraged by the fact that the plans were there. There has to be more effort given to these strategies, and particularly the employment equity portions of it.
The Chair: Are you aware of their time frames? Nothing sharpens anyone as much as a deadline. If they knew they had to put in a strategy by a certain time, one wonders if we would have a better result than the 12. My question again is this: Are there time limits set on these development plans?
Ms. Barrados: The clerk expects those plans posted by the end of this fiscal year. I expect to see better strategies, including employment equity, in the next round of evaluations.
Senator Munson: Welcome to our committee again. I think I asked this question the last time. Just echoing the chair's reference to only 12, we have a list of the 12. Why are the other departments not able to get up to speed, so to speak, on developing these staffing strategies?
Ms. Barrados: That is a good question. It is a new requirement, but if these strategies are not developed, then departments and agencies will not be able to really maximize on the flexibilities in the new act. We have only had one complete fiscal year under this new act, so I am prepared to give it a little bit more time — not a lot, but some more time.
Senator Munson: The issue of bilingualism in terms of hiring practices seems to be an employment barrier to visible minorities. Can you tell us your perspective on the issue of employment barriers to recent immigrants?
Ms. Barrados: In the numbers we have been looking at, we have been asking whether people who were screened out right at the very beginning of a process were Canadian citizens or not, because there is a preference for Canadian citizenship in the statute. The percentage of people that were screened out was small. It is obviously a barrier, because it is a statutory barrier that is there, but it has not given rise to a problem in terms of not having enough members from employment equity groups interested in public service employment.
Senator Munson: What adequate language training is being given to address this issue?
Ms. Barrados: Language training is a function of the kind of job that people are looking for. Not all jobs require bilingualism. The percentage of jobs that require fluency in both official languages is around 30. Those are the jobs that require bilingualism for supervision and that require bilingualism 1 for service to the public. Many jobs do not require both official languages.
At this point, we have not run into problems not getting adequate numbers of people to fill the required jobs. There is often a concern for people, and particularly in visible minority group members, who have several languages. They often come into the public service for an entry-level job that does not require bilingualism; however, in order to develop their careers and for them to achieve higher positions they do have to become bilingual. There are pressures on the amount of training that is available to people who are not in a job that has the immediate requirements for their getting the language, the non-imperative kind of situations.
Senator Munson: In terms of the post-secondary recruitment program, we have heard the word "shocking" some time ago. I believe it was when the President of the Treasury Board was before us in December 2004. Why has the post-secondary recruitment program not yet proven able to change the under-representation of visible minorities in the public federal service since that time?
Ms. Barrados: The situation that perplexes me somewhat in many of these things is that where there has been a centralized or a focused effort that has strong leadership, you do get the numbers of visible minorities and the visible minority hires. You do not get the same kind of representation out of the individual processes.
When I look at things like the management training program, which is a special initiative to get management trainees into the federal government, representation for that program is good. When I look at decentralized individual case hiring, the representation is not good enough.
Where there is special effort and leadership, we get the numbers; where there is not, we do not.
Senator Munson: What more are you doing?
Ms. Barrados: I am talking a lot about it. I am drawing it to people's attention. We are at the Public Service Commission encouraging the creation of special pools and special initiatives, which we are supporting. When those things do take place — like that PE-01 and PE-02 recruitment initiative — we get good results. However, we are in a system now that is a delegated system, so we are making this part of the delegation, and we want managers to take this up.
Senator Oliver: Welcome, Ms. Barrados. Thank you for all the work you have done to help the four target groups; and, in particular, as a visible minority myself, I say thank you for the work and the push that you and the Public Service Commission have put on to try to equalize the opportunity in the public service for visible minorities.
In your report today, like your report to the Standing Senate Committee on National Finance two weeks ago, you gave us these distressing statistics that overall recruitment to the public service increased by 9.5 per cent but that recruitment for visible minorities dropped from 9.8 to 8.7. That is shocking. It is alarming, distressing and depressing. That is the conclusion that the Standing Senate Committee on National Finance reached as well.
My question to you is about these distressing numbers. Why is it so difficult to move the yardsticks so that visible minorities can, in fact, get into the executive ranks of the Public Service of Canada? What is blocking the institutional change that it takes to make this happen? Is it racism? Is there leadership from the top? Is the Clerk of the Privy Council putting the pressure on the deputy ministers to make the institutional change take place? What is the factor that is making you come here today with these distressing statistics, and you even say this means that the gap we now have will only continue to widen. In other words, the case of visible minorities in the Canadian public service is going to get worse.
What is the essential intrinsic reason for this?
Ms. Barrados: I, too, was upset about the number because being by nature somewhat optimistic and seeing pockets of good progress, I had said, I believe, in my testimony before the committee when I was here the last time, that with the increased recruitment we saw going on in the public service I was optimistic we could close the gaps more rapidly. What I had not expected was that downturn, and that is quite a significant downturn. It is not just a little bit in the number. It means that we have reached a level that we seem to be getting into the public service, and we are not going beyond that, because all of our recruitment is going up and the proportion is not going up.
What do I think is the fundamental problem? The fundamental problem is that our approach to staffing overall is not sufficiently strategic. Departments and agencies are not taking seriously their obligation to do the planning for their organizations and looking at what their organizational needs will be in the longer term. I do not mean long, long term but over the next five to 10 years. The departments are not looking at employment equity and representativeness in their departments, which is essential for the public service and for any organization to be able to do its work. If that exercise were genuinely being done, there would be concerted efforts and strategies, and where the effort is put in we get the results.
I am not seeing the effort being put in sufficiently. To me, it is a problem with leadership and with engaging the new legislation, putting in place those plans and strategies and getting on with it, because when we do, we have good results, but we do not have enough of them.
Regarding the executives, again, where we put in the effort, we had a 70 per cent increase. Many of them were from the public service and had not had the opportunity to be put into executive positions. When the effort was put into it, they were given the screening and testing. We worked with them to find positions. We had a 70 per cent increase. Was it one in five? No, it is still not good enough, but we did get a significant increase, again, with leadership and effort.
Senator Oliver: Why is there no strategic approach to staffing? What is the reason for that? There has to be a reason.
Ms. Barrados: I think it is because it is a new requirement. We have gone from a previous legislative regime where things were done on an individual case-by-case basis. We did not have the pressures we have now on the system, where we do have one generation — a big block — of people moving through the system. Now people realize that we have to take this planning seriously because of the increasing retirements that we will see — and I put on the agenda, whenever this discussion is taking place, that it is not only demographics but also representativeness. In a way, the turnover is a tremendous opportunity because it is the opportunity for us to get it right, but then we do not expect to see this kind of number on the visible minority side.
Senator Oliver: You mentioned Morris Rosenberg. I have met with him and he is excellent. He is in charge of the Visible Minorities Champions Committee. What happened to Embracing Change, the one-in-five benchmark that we were supposed to meet? Tens of millions of dollars were spent on the Embracing Change directive. Why did it fail?
Ms. Barrados: There have been a number of evaluations, but I have not really seen a clear answer. We went to a lot of work and we did a lot of work in the commission to find pools of interested people. We asked: Do visible minorities really want to come and work in the public service? Are they aware of public service jobs? Well, we went through that as part of the Embracing Change program. Yes, they are interested, there are large numbers of them, and they certainly seem to be a very talented group of people.
I believe Embracing Change lost some of its momentum. We had a number of key people who changed that were involved in that, and I do not hear a great deal of discussion about that any more. Hence, my initiative at the commission is to start reworking those targets. We will be getting new census numbers, so I have asked for targets with the old census numbers and with the new census numbers to give us a sense of what it is — is it one in five? What parts of government are involved? What do we need to do and, with different kinds of targets, what would it look like and how long would it take?
I am trying to get that discussion going again.
Senator Munson: I have a supplementary on Senator Oliver's first question. When you talk about how disappointed you were about seeing the numbers of visible minorities dropping from 9.8 to 8.7 per cent, is it about attitudes in the public service, older attitudes? When you talk about boomers leaving now, how did managers get away with, in your words, not taking their role seriously? How do you deal with that kind of attitude? If they are not taking it seriously, then there is systemic racism of some sort.
Ms. Barrados: We have a pattern of hiring that worries me in the public service — and in other parts of the annual report I talked about that. We looked over a six-year period at how the permanent workforce was hired. Of the people that were hired permanently, 80 per cent had had experience in government before, so they had either worked as terms, they had worked as casuals, or they had some other form of federal government experience. Seventy-five per cent of them had been terms and casuals, which means the entry into the permanent workforce is through that term, casual route — that is, short-term hiring and hiring for your immediate needs. It is hiring that tends to be much more local, it is much more short term, and it is hiring through connections. Therefore, the broader search is not taking place; you are not going to the big population centres where you have many more visible minorities.
Fundamentally, our pattern of hiring, which is short term and meeting short-term individual needs, works against a corporate kind of target — one that says no, no, you may want that particular thing that might help you today, in the short term, but it will not help the public service in the longer term. That is what has to change.
I harp a lot on planning, and it sounds rather obscure and abstract. However, that really means that a lot of that individual hiring, just looking at people who are around you, is changed, that there is a much better approach to hiring that does do the broader search and that does provide the opportunities on a permanent basis. If you go entirely short term, a lot of the people who are your talent are not necessarily going to want to go casual term to get a permanent job in the public service, nor should they. The clerk is actually sympathetic with that, and he set a target for 3,000 new hires from post-secondary students next year, 2008, by the end of the fiscal year.
Senator Munson: Is there anything to be learned from the private sector, the corporate sector, in terms of hiring programs for visible minorities?
Ms. Barrados: In some sectors I think they have done better, have they not, Paula?
Paula Green, Director General, Equity and Diversity, Public Service Commission of Canada: Yes, in the banking sector.
Senator Munson: How have they done that?
Ms. Barrados: They are quite strategic. They know the population they are serving, they have defined their needs, and they go out and meet those needs. I have met with one of the banks and they spent a full day explaining how they were doing their staffing and their recruitment. It is very similar to what we say needs to be done, but they are making sure they are following through in terms of defining needs, developing those strategies and going out and getting the people.
Senator Dallaire: I have a few the points, if I may. Do you have data on the demographics that will affect the recruitment out to, let us say, 2015 or so, in regard to these four elements of the recruiting base and, in particular, visible minorities in this country? Has any such projection been done? There is also the question relating to what sort of percentages you anticipate will be coming down the road for these different groups.
I do not think the women one, because that one will remain reasonably stable, but certainly the three others, as an example, the Aboriginal youth are the fastest growing youth population in the country.
Ms. Barrados: There are two pieces of work ongoing. The Canada Public Service Agency, my counterpart for a lot of the human resource policies and programs, has a responsibility for demographic analysis and projection overall for the public service workforce. They are doing that work. However, we have also commissioned work from Statistics Canada to get a better handle on what we expect in projecting the overall public service population and then what we expect with what the Canadian population will be looking like, to give us a better handle on where that gap is going to go and how big that will go. My intention then is to start talking about the kinds of targets you need to meet to narrow the representative gap.
When we look at the numbers, the visible minority ones are the most worrisome. In terms of persons with disabilities, the recruitment has dropped off, but our representation is still quite high, and that is because we have an older workforce and they are becoming more disabled in the workforce. We have not got that representative problem but we are not giving opportunities to others. With respect to Aboriginal people, I think that workforce availability number could well change.
Senator Dallaire: That data is available. In other words, we could have someone tell us that although the target is 9.9, let us say, for visible minorities now, we can expect that, by 2012, the figures should be 15 — not only trying to meet today's needs but a separate team and a separate effort being prepared to launch that requirement.
Ms. Barrados: I should have my numbers from Statistics Canada by March 2008. They will do different projections for me.
Senator Dallaire: It would be most useful for us to have a look at that.
Does the commission have any outstanding Human Rights Commission complaints that have been levelled against it?
Ms. Barrados: I would have to get back to you, because I probably do. I probably do because any issue with assessment or staffing overall can be against the Public Service Commission, so I well could. I will have to come back to the committee with that.
Senator Dallaire: Something more than pay equity, which we know about.
Ms. Barrados: No; lack of accommodation on some of our tests is an area that is of concern or unfair treatment during a selection process. Usually the Public Service Commission is named. I have a team of people who work on those things. As to whether I have some outstanding, I probably do, but I will have to come back to you with that.
Senator Dallaire: What would happen if you established a recruitment policy that recruited visible minorities from outside before you hire from inside? As an example, you brought statistics that 21 per cent of those who applied were visible minorities, on jobs that were offered outside, but many of the jobs are in-house. In fact, if I go back to my CIDA days, people moved faster than you could change their business cards. As one of the priority elements that you use in hiring, could you establish that visible minorities will be hired first, before you do internal shifting of people, in order to fill some jobs?
Ms. Barrados: It is an interesting question, and I agree with you, senator. I make observations in the annual report that we are seeing an increasing movement in the public service. It has gone up by 5 per cent every year over the last three years. On average, we are at 40 per cent now. In some particular groups, it is higher. The executives are over 50. The PEs of the human resource management people are in the 70s. We do have an issue with movement.
As to the suggestion about working the inside and the outside, under the previous legislation, there was a requirement that you had to look inside before you went outside. That has been removed; that requirement is no longer there. We have been telling people that every manager should decide whether he or she has a sufficient pool. Is there a sufficient group of people who would meet their requirements before they determine where they go?
Hence, if you are looking for visible minorities, and I would hope your plan identifies that you need to do that, then you well should be going outside. If you have a sufficient pool inside, I would say then go inside.
I would be careful in that we have many public servants who are visible minorities who feel their career opportunities have been blocked. I would be reluctant to deny them the opportunity for some of the more senior positions by not allowing them to compete.
The EX-01 process we ran was external, but about 70 per cent of them were from inside government but applied to these external processes.
Senator Dallaire: Turbulence at all levels is disruptive, to say the least, particularly at the higher EXs. If they shift around every year, there is no consistency. Has there not been a policy of trying to reduce that? At one point, you could not get a civil servant out of a job. Now you cannot keep them in a job, because they are all shifting because of career patterns and things like that. It is worse than in the army. We actually stopped that; we reduced it to people having been at least three to fire years in a job. We do not see any of that now. Can you actually have a policy of recruitment from outside or meeting some of these complex demands if everyone is playing musical chairs every year? Forty per cent is absolutely incredible. There should be a policy against that.
Ms. Barrados: I am also very concerned about that number. I have been having discussions internally as to what we can do. Again, I am the recruitment person. There are other elements of this at play here. I am having a bit of trouble getting a consensus as to the best thing to do. One of the responses I am getting is that for years and years we had problems getting some mobility between departments, and we wanted to diversify the experience that people have, and now you have diversity and you are complaining.
As well, the movement is within government, not people leaving government.
Senator Dallaire: That is even worse. You are getting expertise and, yes, you are improving the overall depth of the civil servant, but you are providing no continuity within the different organizations because they are now moving in all departments. They are not even staying in-house.
I should like one day to have the HR grand pooh-bah come and tell us how the overarching HR policies are manoeuvred.
I wonder if you can tell me the links or trends that you have seen between recruitment and language. Specifically, with visible minorities, are there links between Franco-visible minorities — Caribbean and so on — and their ability to get into the public service because perhaps they are not bilingual or are only francophone and there are not enough French-speaking jobs out there for them? What about people of East Indian descent? Are the language factors becoming a problem? Are you proactive?
As an example, in the forces, unilingual persons were sent to a language course and then moved into whatever job. Is there a similar policy in the public service, or is it simply that you come with what you have to offer and we will see if we want you?
Ms. Barrados: Each job is designated as to whether both official languages are required, or whether the job does not require both official languages, and what language level the job requires, and this is the job of the manager. The musts in the system are this: If you are providing service to the public or if you are supervising staff, you must have bilingualism. If you are an executive, it must be at the CBC level.
There can be discussions about whether these designations are appropriate. I have observed that we used to have an ABC level, A being the lowest and C being the highest. The A level has pretty well disappeared. There seems to have been an increase in the use of the designations over time. I am not sure why that occurs, because managers are making the determination of what is required. There is always the possibility to staff non-imperatively under certain sets of circumstances where you give people the opportunity to get training. That system appears to be working, and non-imperative is used appropriately. People are given the training. There is a possibility for them to get extensions.
The issues arise when you have people who are in unilingual positions and do not have the same access to training because it is not needed to do their job, but then it affects their potential for promotion. That is more of an issue in terms of one's career opportunities.
We have not really run into huge difficulties in not being able to get sufficient pools of people, except for some of the specialty areas.
Senator Dallaire: So there are no problems of language and visible minorities because there are enough Franco-jobs out there to absorb the 8 or 9 or 10 per cent of visible minorities you would need in the public service, or are there any areas where you think that, because of the language skill, they just cannot get to first base?
Ms. Barrados: It is the specialty areas where we have problems. Right now, we are short in some of the financial areas. We are short in some of the medical areas. That can be a real problem because even if you staff non-imperatively, giving people two years to get the language, you need the person there right away, but you have to send them on training so you are without the person for two years. In those areas, we are having more difficulties.
Senator Dallaire: Madam Chair, we are continuously getting word that there is racism in regards to hiring practices in this country in regards to visible minorities. I hear it in Quebec and Montreal all the time. Yet, we do not seem to be able to fill the numbers. I do not understand the disconnect that exists between having many people and many jobs available, but the recruiting not being linked. At DND, which is different, they discovered they had to hire a whole bunch of Haitians.
The Chair: As you know, our terms of reference are alleged discrimination. I think that you have used the term "racism." We did put in our report that we thought there was systemic racism, which is a definition according to the courts, so we do not use that term loosely or lightly.
On one hand, we want to make sure there is no overt racism; on the other hand, we do not want to unfairly target people within the Public Service Commission and say they are racist when in fact they are not. We have this in our report and I urge people listening to the committee to read our report on that issue.
I think we will be calling more witnesses and will continue to deal with this issue. However, we have to continue.
Senator, as you know, we have been on this issue and we do not intend to give up. We have asked for and received an extension of our mandate. If anything else, we will be persistent and consistent in our dogging of this issue and trying to find some answers rather than just identifying the problems again.
Whether it is within Ms. Barrados' area or elsewhere, the question is "How do we get all of the players to take this seriously and to make a change?" If I interpret what Ms. Barrados is saying, she is doing what she can in her area, and it has had some limited results. However, the overall picture, for visible minorities, for example, is not a good one; it is going the other way. Obviously, we have to do something differently.
I have heard this contract issue being spoken of most dramatically. Anyone who gets a post-secondary education is thinking along career lines. If someone is sitting in Vancouver, will he or she come here on a short-term contract to get to know someone so that you might have a chance of getting a job? That is not how the world works. People have obligations, a family, perhaps; there are other issues. A person will not go and work on a short-term contract in the hope of getting a job; an individual will hang in where he or she is and see if a permanent position can be found. This is particularly true for younger people, given that they have less experience, et cetera.
Those are the issues we will be looking at. At this point, we are not saying we have the answers, although we did recommend some suggestions of accountability for key civil servants, and we will continue to look at that. I welcome any new recommendations for our next report from senators collectively or individually.
Senator Oliver: I was going to ask you to go through this collective staffing initiative, because I do not understand it, but there is not time to go through it. The chair has referred on a couple of occasions to a report by this committee, and the first recommendation was for bonuses.
The second recommendation says — and I quote:
The Committee recommends that the federal public service develop concrete means to implement its plan of action in order to ensure equal access to executive level positions and all occupational categories for each of the designated four groups.
I have discussed this recommendation with several visible minority groups in Canada, and they find it general. However, I want to know what you think it means and what steps you recommend.
Ms. Barrados: The only purpose with this complicated chart was to show that, if there is a concerted effort, if it involves many players and if it has many steps, you get a good result. If you leave it to individual decisions, you will not get that result. The only point is that it takes effort and if a lot of people are working on these things you will get the results. We know how to do it, if we only turn our minds to doing it.
In terms of getting the concrete results, I come back to some of my comments about planning. There has to be a recognition on the part of the individual managers that they all play an important role in getting a more representative public service and that there is a commitment in those plans to improve the particular areas where they fall short. We have some departments that are actually doing quite well on diverse representation. The overall number is not very good, which means that if some are doing well, some are doing very poorly. Those individual plans are vital.
Following that, people such as me have to really watch the situation. We need to be proactive and get after them, saying "How are you doing? This is how you could do it better." Hence, the other thing we are doing is giving a lot of information on how to do it better and providing good examples.
Once those plans are out there, I would expect the system would hold people accountable for their plans. Accountability is important because the plan should be concrete. If the plan is not concrete, there are good questions to ask the people who author the plans. Once the plans are out there, then it is those strategies that have to come into play. A plan that you do not intend to deliver on is not a useful plan.
Senator Oliver: I would like to go to Mr. Rosenberg, with whom I have met and spoken to regarding some of the work he does. Could you tell us some of the things that the Visible Minority Champions Committee does? Who is it and what do they do?
Ms. Barrados: They are a committee of the government, and Mr. Rosenberg is the chair of the committee. Paula Green is very active in that. Perhaps she could give you specifics on what they do.
Ms. Green: These champions in each department are connected to the visible minority network within the department. So far, the group has had two meetings, and the enthusiasm is there amongst the champions to do something.
Priorities must be set; it is not sufficient to only define the issues. What must happen is that priorities must be set and a strategic plan of action must be produced. It will be implemented across the government. The committee is at the initial stages of formulating that plan.
Senator Oliver: Are these champions at a high level? Are they at the deputy minister or assistant deputy minister level?
Ms. Green: Morris Rosenberg is a deputy minister. The majority of them are assistant deputy ministers, while some are regional directors general and others are directors general. I do not think there is anyone below that level.
Senator Oliver: How long ago was the last meeting?
Ms. Green: The last meeting was a couple of weeks ago.
Senator Oliver: Ms. Barrados, in your role as head of the Public Service Commission, do you have a regular opportunity to meet with the Clerk of the Privy Council to discuss these issues, or is there a forum for you to discuss them?
Ms. Barrados: I meet with the associate clerk regularly. I meet with the clerk, whenever I have a set of reports or specific sets of issues, but I tend to meet more regularly with the associate clerk. I participate in a number of deputy forums where I do raise these issues.
Senator Oliver: In the past, Alex Himelfarb, a former clerk, has appeared before this committee on these issues. It may be a good idea for the current clerk to appear as well to address these issues. It might be useful.
Ms. Barrados: The clerk is the titular head of the public service.
The Chair: Senator, it is our intention to call him, so we will have an opportunity. I think Senator Munson had a short intervention.
Senator Munson: I was curious about the word "accountable." In the private sector, if a manager is held accountable, things can happen to him or her if he or she does not account for following the direction that is given. What do you mean by the word "accountable" for such strategic plans? How accountable does a person have to be? Does that person have to deliver target numbers and, if not, what happens to that person if there is a failure in the public service?
Ms. Barrados: The accountabilities work in different ways. My part of the accountabilities, which is the staffing and recruitment, requires reports; we monitor what happens, we write back reports. If there are serious problems, we will go in and do more work in those areas. If we cannot correct them, we will actually remove some of the delegations, or put conditions on them.
We have a range of things we can do, and we do them.
Senator Munson: What does "conditions on the delegations" mean?
Ms. Barrados: The delegation involves the authority to make an appointment to sit with the commission. If that is not working well, the commission can actually remove it and put a department or agency under receivership, if you like. They are actually doing the appointments. Otherwise, we can impose conditions or can make recommendations that have power associated with them because of this ability.
On the overall management, that is the relationship that goes within a department, and it is hierarchical. It is then the relationship between the deputy minister and the minister and the clerk.
Senator Munson: I do not know if we had mentioned the reference in your report about the decline in the percentage of appointments of women in the public service. It was in 2006-07, 56.9 to 55.6 from 2005-06 to 2006-07. What is the driving force behind that decline?
Ms. Barrados: I did not see that as one that merited too much worry on my part because of the fact that it is above the workforce availability.
Senator Munson: I see.
Ms. Barrados: I usually get the opposite question, namely, why we have so few men. It is in large part a function of the kinds of occupations that are being staffed.
The Chair: Thank you for appearing before us again. You are patiently but persistently continuing to change the face of the public service to more truly represent Canadians. What you have said is that there are sufficient Canadians in all pools that could avail themselves of a position in the public service if we changed our methodology of reaching them and our persistence in providing opportunities for them.
I can assure you that our patience on the committee is a little less than yours. We will be changing some of our recommendations from generalities to more specific comments to ensure that there is follow up simply because of what you say, that there are many players. We want to bring them together to say what we are doing now is not satisfactory. We can do better as a country and as a public service. Your dedication to this issue and your availability is very much appreciated by the committee.
We have before us now Mr. Fo Niemi, Director General, Center for Research-Action on Race Relations, and Dr. Igho Natufe, President of the National Council of Visible Minorities in the Federal Public Service. The third member at the table is Adelaidea Bustamante.
Igho Natufe, President, National Council of Visible Minorities in the Federal Public Service: She will intervene. She is the chief ethical officer of the NCVM.
The Chair: Welcome. Again, if there are opening statements, we would ask you to make some comments, and then we would like to go to questioning. I know you sat in for part of the last witnesses. We do want to leave time for senators' questions on our studies.
Mr. Natufe: Thank you very much, honourable senators. I thank you for inviting us to appear before this committee to hear our position on the subject matter.
The National Council of Visible Minorities was established in 1999, arising from the initiative of three departments with networks in the civil service. Over the years, we have been articulating the interests and concerns of the VM community in the civil service and noticing a consistent pattern of under-representation of the community in all ranks in the civil service, particularly at the middle senior ranks in the civil service.
This evening, I will provide a brief outlook of the organization and the challenges we are facing and also recommend what we believe are practical steps for this committee to consider.
We held our last conference just two months ago. The first one was in 1999, where we had over 200 participants. At the last conference, we had close to 500 participants from across the country, from across federal departments and agencies.
Our mission is to play a catalytic role in the federal civil service to promote visible minorities across departments and agencies to ensure that we are fully represented in the Canadian mosaic.
Our mission is to be the voice of visible minorities in the federal public service. We do that by engaging in dialogue around federal government decision-making tables on how to build a representative federal public service that enhances service to the Canadian public while promoting the democratic values of the Canadian society.
The NCVM is a non-union, not-for-profit, voluntary organization that represents all federal public servants who are in the VM category group as defined in the Employment Equity Act. Our membership also includes retired visible minority civil servants and non-visible minorities who agree with the terms of reference of the organization, and they can be appointed to serve on advisory capacities.
We have six regional councils or executives in the country: Atlantic, Quebec, NCR, Ontario, central, and the West. The governance structure basically revolves around the national executive, elected at our national annual general meeting, with five members on the council, and then the six regional directors are elected at their own regional general meetings.
We also have departmental agency networks or committees. Currently, we have established committees in departments and agencies for about 25 federal agencies and departments.
Part of the governance structure is also an advisory committee, which is composed of senior visible minority civil servants who have managerial and policy background. They provide advice for us in the council.
In looking at the issue of representation of visible minorities, we are confronted with a question of whether or not there is discrimination. We will look at this from two perspectives: The question of representation, and the corporate culture within which we operate within the system, how this impacts on the hiring process.
With regards to representation, we notice that, in the demographics some 40 years ago, visible minorities made up about 2 per cent of the Canadian population. That has changed dramatically over the years. In fact, by the year 2017, it is estimated that one in five Canadians will be a member of a visible minority group, which is a substantial increase from 40 years ago.
Why include visible minorities in civil service representation? We believe that there is a strong business case to make because visible minorities from all communities that we represent bring to this country vast knowledge and various training and, of course, a vast linguistic profile.
All this, we believe, will help to improve our process of attracting the best and brightest, which we feel will enhance the civil service of Canada, and of course to provide a diverse base in our decision-making process and to enhance Canada's competitiveness in the global marketplace. As we all know, as the world becomes so increasingly globalized and small, key knowledge in particular areas becomes very important in international trade, commerce, and diplomacy. This is one tangible element that members of the visible minority group bring to the Canadian mosaic.
We are here because of a legislative imperative, the Employment Equity Act, with which we are all familiar. The act by itself was put in place to assure equality in the workplace, so that no person shall be denied employment opportunities based on reasons unrelated to his or her ability, and to correct the conditions of disadvantage in employment experienced by women, Aboriginals, persons with disabilities and persons from visible minority communities.
Two imperatives come to mind when we look at the EE Act. One is the recognition that there has been or there are still discriminatory hiring practices that disadvantage these four EE groups. This imperative of the act is that departments and agencies should implement special measures to address these anomalies.
Over the years, while women, Aboriginal persons, and persons with disabilities are well represented in the federal civil service, visible minorities remain under-represented. In the recent report by the Public Service Commission, which we acknowledge, it was said that the persistent under-representation of visible minorities in the public service, if not checked, if not addressed properly, could become seriously aggravated. In fact, we notice a drop from 9.8 in 2005-06 to 8.7 in 2006-07.
When we compare the public service to the private sector, we find that the private sector has been doing much better. Therefore, the question that we constantly ask, which we want this honourable committee to help us find answers to, is why the other three groups have gained representation while visible minorities have not. In the private sector, it is recognized that in Canadian society racial discrimination continues to be a major factor in the distribution of opportunities.
I am referring to a study that was done here, and in a recent study done by Catalyst, where it is recognized that almost 47 per cent of visible minorities report that they were held to a higher standard of performance than their peers. We frequently hear some jokes in the corridors that you have to have a master's degree as a visible minority to be accepted to do what a non-visible minority with a high school degree would do.
In the course of looking at how we can bring change and inclusion to the federal public service, we also have to recognize some of the obstacles that are in the way. Here I quote the Deputy Minister Champion, Mr. Morris Rosenberg, who said:
There is much more to be done as demonstrated by the result of two consecutive Public Service Employee Surveys showing more than one third of visible minorities have felt discrimination — twice the overall rate.
Again, I refer to the Public Service Commission Annual Report of 2006-07 — and I quote:
Preliminary findings showed that visible minorities applied in a rate of twice their availability in the Canadian workforce and, on average, submitted eight applications per applicant. Among all applicants, visible minorities were the most educated, with over half of them having completed bachelor's or higher degrees.
Visible minorities fully support the merit principle. We welcome the clerk's renewal policy, which calls for the hiring of the best and the brightest, but we wonder if we are included in the category of the "best and the brightest," even though we are recognized to be the most educated and the most qualified of the four groups.
We also wonder about the tremendous improvement of women in the civil service, which we applaud, by the way, we welcome, and we feel it is the right thing to do. We feel it is the right thing to do because it has to be done, but unfortunately, by implication, the progress made by women excludes visible minority women. Therefore, visible minority women face what we call a double jeopardy.
We also applaud the improvement on the increase in numbers of persons with disabilities and Aboriginals, but we wonder why this does not extend to our community.
We, the NCVM, are trying to engage deputy ministers, beginning with our DM Champion and other senior management, in the process of providing leadership in the civil service that will make these agencies and departments adhere to the imperatives of the EE Act. We regard the question of employment equity as a human rights issue.
We are also working with network chairs to engage managers of their various departments and organizations to see that these issues are addressed. We recognize that over the years there has been some progress made with the appointment of visible minorities to the senior level. We are engaging those in the EX category, the VM community, in the work of the NCVM and to also seek their advice and counsel, and also for them to come as mentors to visible minorities in the middle and lower ranks of the hierarchy.
What has been done in the past to address this issue? One of the instruments was the report Embracing Change. In June 2000, it gave itself a strategic benchmark to increase visible minority representation in the civil service. It set a benchmark of one in five in recruitment acting appointments and EX appointments in the civil service. The progress report has been very modest, with a net gain of close to 6,000 employed over the years, and those in the EA category have seen an increase from 100 in 2000 to 220 in 2005.
Overall, however, the evaluation of the Embracing Change can be said to be a retrogressive because instead of one in five we have one in 10 of all new hires. In fact, the Public Service Commission, in its employment equity report of 2004-05, said:
To keep pace with the changing demographic of the Canadian workforce, it will be necessary to intensify and re-energize measures to make the public service more representative.
We come to you this evening with five recommendations for your consideration. First, we ask that Parliament appoint a commissioner of employment equity, with full legislative power and authority to ensure that federal departments and agencies comply with the EE Act by addressing the under-representation of visible minorities in the federal public service, and ensuring that the recruitment and promotion processes are based on fairness, equity, openness and transparency. Visible minorities do not want to be denied that. We want to take part in the process, but we want it to be fair and transparent too. Second, we recommend that Parliament review the EE Act with strict compliance regulations that are results oriented. Third, we believe there should be new special measures similar to Embracing Change but with stronger enforcement and accountability to bring credibility to the system. Fourth, departments and agencies should incorporate employment equity in the human resources portfolios. Finally, we recommend that departments and agencies be compelled to offer suitable employment to qualified visible minority graduates currently stuck at entry-levels well below their qualifications and skills.
The Chair: Thank you, Mr. Natufe.
I shall now turn to Mr. Niemi. We have the benefit of written presentations; I am hoping that you can present short introductory remarks to leave us time for questions. I do not know if that would be unfair, Mr. Niemi; I know that you have a five- or six-page document. If there is a way to hit the high points of it, I assure you that the members will read the full text.
[Translation]
Fo Niemi, Executive Director, Centre for Research-Action on Race Relations: Thank you, Madam Chair. I am going to summarize my presentation and I will make my remarks in both official languages.
We are from Montreal. We are a non-profit organization working in the area of employment equity since 1983. We do so on several levels: research, education, consultation, training for employers and unions. Since 2000-2001, we have increasingly provided a service to assist and support victims of discrimination based on race, religion and ethnicity, as well as other grounds such as gender and disability.
With this service, we have been able, in recent years, to develop perspectives and expertise not only on employment equity, but also on the effectiveness of our mechanisms that protect human rights. I emphasize our mechanisms, because we work in a federal system at both federal and provincial levels, and the Canadian system for the protection of human rights comprises a number of organizations, including the Canadian Human Rights Commission.
We have had a caseload of about 400 active files in recent years. Currently, we have, I believe, a dozen or so cases before the Canadian Human Rights Commission and other administrative bodies, not only in Montreal, but also in Vancouver and Toronto. In federal jurisdiction, we are able to assist people with their dealings and communications with administrative mechanisms of recourse.
As to employment equity, discrimination and equality in the public service, our involvement can be summed up as follows: we believe first and foremost that another dimension must perhaps be added to the debate on employment equity. It is more than a matter of economic equity and equality of opportunity in the public service. For us, employment equity in Canada means respect and the fulfilment of a commitment, a promise, a social contract that binds the Canadian crown with its citizens and its new permanent residents from visible minorities.
[English]
We believe that the public debate on employment equity in the public service too often focuses on data as well as legal and administrative technicalities and not enough on the broader principles of full citizenship and participation of people to all sectors of society, particularly minorities. Looking at the broader principles will hopefully re-engage the whole notion of the need of Canadians of visible minorities to feel a sense of belonging, of engagement between Crown and country, and a sense of loyalty to this concept and dream called Canada. It would be very hard for both young and old people of visible minorities to know that they cannot get a fair shot at a job in the public service even if they are competent. In this age of globalization and the fluid movement of people, capital and service, you can imagine that facing this wall of discrimination and resistance to integration in the federal public service can lead to alienation, division, tension and migration.
We suggest what former prime minister of France, Lionel Jospin, said: We have to tackle and eliminate this "entorse à la démocratie" when the state does not reflect and provide equal opportunity to the citizens of the state within its own apparatus. We believe we should calibrate the discussion of employment equity along that line, as well.
Second, we believe we do not need more employment equity laws and policy but rather more effective implementation of these laws. I believe this committee's report, the previous preliminary report, has emphasized this point. What we would like to bring to the discussion today and in the coming months is a different way of looking at the implementation of employment equity. We have observed that the actions, staffing decisions, hiring, selection, advancement, promotion or even termination usually happens a lot at the regional and local levels in the key cities but not in Ottawa. In cities like Montreal, Toronto and Vancouver, where there is a sizable population of visible minorities, the numbers should be examined and focused. We need access to data from the Public Service Commission, in a detailed manner, in order to know exactly where the movement is and where progress is taking place. Additionally, we need to know where the stumbling blocks are at every level of the federal public service, not only at the national federal level but also at the regional and local levels. Those data would help better track the progress or lack thereof and can also provide additional and effective tools for litigation, particularly when we have to consider increasingly the resort to class action as a way to combat systemic discrimination in the workplace.
We also wish to bring before you the need for political as well as ministerial accountability in the first place when talking about managerial and administrative accountability. Ultimately, in a parliamentary system, ministers, not deputy ministers, are responsible for the department and agencies. We suggest there must be a more enhanced manner in which to hold ministers accountable for the employment equity record of performance of their respective departments and agencies. This is especially necessary when it comes to an annual review of the budget credit allocation and other policies within the department and agencies.
Our next point is in regards to the fact that employment equity cannot take place without effective civil rights protections for victims of discrimination and harassment in the federal public service. To this end, we have three points we should like to make.
We need urgent reform to the federal human rights protection regime, especially the Canadian Human Rights Commission. This is not due to the lack of commitment of commission staff; the vast majority of commission staff is very dedicated and committed to human rights. However, there is something broken and ineffective in the way the human rights structure exists right now. We are very dismayed that after seven years, the La Forest report on revamping the Canadian human rights system has not been acted upon. If the members of the committee have to accompany a victim of discrimination, to walk that person throughout the human rights system at the federal level, they will understand how complex, discouraging and even how demeaning the process can be. There is an average wait of three to four years before one can actually get a decision from the commission — that is, if the commission exercises its powers and authority to take in the complaint. That individual might then wait for another year or two before the case can be brought to the Canadian Human Rights Tribunal, at the complainant's expense. If the individual loses at the end of the five years, he or she may have to pay for the tribunal costs of the respondent. In most cases, the respondents are the Attorney General of Canada or big federal institutions, and opposite them is the lone individual. We do not believe the system is fair, and we feel that many of the recommendations set out in the La Forest report need to be acted upon.
Second, we would like to address the fact that the recommendations of the Harry Arthurs report on revamping the Canadian Labour Code also need to be implemented, especially the parts dealing with the integration of human rights standards with the labour standards. At the present time, the Canadian Labour Code only addresses sexual harassment. In so doing, it ghettoizes the issue of discrimination and harassment along gender lines, restricts along gender lines and tends to create a system whereby harassment based on other prohibited grounds of discrimination is not addressed fairly.
We would also like to recommend strongly that in the review of the Employment Equity Act and in the assessment of progress of employment equity in the federal public service that this committee examine not only the employers but also the unions. As you know, in any unionized workplace, one cannot dance without the other. Especially for victims of discrimination and harassment, based on our experience, they have to persuade even threaten a labour union with filing a grievance because most unions at the local or ground level are not accustomed to dealing with race-based claims or complaints; there are extraordinary difficulties in filing grievances dealing with racial discrimination and harassment.
Hence, to talk about effective protection for victim discrimination, we recommend that the committee look at what the unions are doing, how the unions are representing those claims, how they are representative of the changing workforce and Canadian society, and what kind of concrete procedures, whether it is a grievance before the Public Service Labour Relations Board or other grievance procedures, are working, especially when it comes to systemic discrimination. We are very concerned that in most cases before the Human Rights Commission, and even in the grievance arbitration process, systemic discrimination cases are often de-systematized, reduced to an individual level and, therefore, the systemic barriers are obliterated in the process.
[Translation]
So we would like to thank you once more for having given us the opportunity to make a presentation to your committee. We are now ready to answer your questions.
[English]
The Chair: I thank both presenters. You have certainly given us a lot of new information and substantiated some of the points we have heard from other witnesses.
Senator Dallaire: I do not understand visible minority women not being part of that 50 per cent. Is being a visible minority an overriding factor on gender?
Mr. Natufe: You are not alone in not understanding this. We have also been perplexed. I will give you a specific department, which is mine, to illustrate what I am about to say. I worked with the Department of Natural Resources. Between 1998 to 2001, the department increased its population of women EXs from 14 to 29. There was not one visible minority woman, whereas there were many visible minority women occupying key managerial positions in both areas of my department, that is, science and policy. Most of these 15 appointments were made through acting, through promotion without competition, or what they call in the civil service "reclassification." It is replicated from department to department. I am not saying you will not find a visible minority woman in an EX position. Ms. Green, who just left here, is one, but when you think about the increase of women, the progress made by women, by definition, does not include visible minority women.
Senator Dallaire: It is interesting. You could be Machiavellian and think there is a cabal by the males by fiddling in this figure. It would be to the advantage all around if, in fact, in the proportion of women, specific numbers be identified within the women in regards to the initiatives of bringing more women on board.
When we launched it at DND, there was a specific component in there that ensured so many French Canadians, so many visible minorities and so on, so they were quantified. In this case, it is as if it is pejorative on all sides. It makes no sense.
[Translation]
As for your research, are your projections based on previous data on abuse affecting visible minorities or do you just deal with data provided to you?
Mr. Niemi: A little of both. We must rely on the cases brought to us in order to determine, amongst other things, the nature and, more and more, the practices of things we observe, whether that be with the victims or the employers' practices or even the practices of the unions involved.
That leads us to the following observation: in a number of cases where the workplace is unionized, even when there are employment equity programs in place, it is still difficult for unions to provide protection such as mediation for people who are being discriminated against.
Senator Dallaire: But do you not offer solutions to unions as a matter of course?
Mr. Niemi: Yes, we try to encourage them to provide better training for their officers who look after grievances so that they can better understand racial harassment in the workplace and how to come to reasonable accommodation based on religion or culture. We also develop tools so that people know how to provide that training. We make a clear distinction between training about diversity and training on human rights and issues of discrimination.
[English]
Senator Dallaire: I recently attended an event where Louise Arbour — she is the UN High Commissioner for Human Rights — and other previous UN human rights commissioners were in attendance, Max Yalden was there, and they were slapping themselves on the back for having achieved great successes in getting rid of the backlog of complaints and so on. They were sort of leaping ahead and possibly even going overseas.
Your statement is worthy of us looking at the process of how they got rid of that backlog and what they are doing, on one side, and whether they have instituted new methodologies for streamlining actual cases on the other. I thank you specifically for that.
Mr. Niemi: I should like to add one comment to that. In your study, you have to make a distinction between complaints of discrimination based on section 7 of the act, which deals with individual discrimination, and section 10, which deals with systemic discrimination. We do not recall in recent memory any cases of systemic discrimination that have gone to the tribunal.
Senator Dallaire: Made it through or gone to?
Mr. Niemi: Referred by the commission to the tribunal, especially when it comes to racial discrimination.
Senator Oliver: First, I should like to say thank you to you both for two excellent presentations. It has been very useful and helpful and gives us a lot of food for thought.
I have a question for each of you relating to the Human Rights Commission. I will start with the NCVM. Your first recommendation is that Parliament appoint a commissioner of employment equity with legislative power and authority to ensure, et cetera. That recommendation has made before. The classic response from the bureaucracy is this: Why do you need another commissioner when you have the Human Rights Commission that can do it?
I should like to have your response to that, particularly in view of what we have learned today from Mr. Niemi.
Mr. Natufe: You will recall the policies of the 1960s that gave birth to bilingualism and multiculturalism, in Canada, which led to the Official Languages Act and which led to having a Commissioner of Official Languages, which was one part of the equation, but there was not a commissioner for multiculturalism that talks about employment equity as a diversity element. All we are asking is for equity to ensure that positive results are attained. We have the Status of Women, which looks after a specific agenda of society. The Commissioner of Official Languages looks after a specific agenda. We believe that in order to give credence to the intention of Parliament to address this issue of employment equity, we must have a commissioner with the same powers as his or her counterparts to enforce compliance with the act.
For the past 20 years, since 1987, 1995, 2001 and 2006, we have not seen progress with the EE Act that we can say is positive, meaningful progress.
Senator Oliver: Mr. Niemi, you have told us that one of the problems with the human rights files, and you personally have 12 files before them now, is that it is badly broken and complex and discouraging. If it were applied to something like a commissioner for employment equity or a commissioner for diversity, it would mean, in its present form, at least, that if a person had a complaint in hiring or promotion within the public service, they might have to wait four years for a result, four years or more. What does that do to a career path?
Mr. Niemi: The Human Rights Commission is only effective and credible if they have the powers and the speed and the resources with which to carry out their mandate, and we do not believe that the commission at the present time has some of those fundamental ingredients to carry its mandate effectively. Just the fact that the La Forest report to revamp the federal system has not been acted upon in the last seven years begs the question: Are we avoiding something that is really essential to the achievement of the notion of equality in the federal workplace?
Senator Oliver: What are some of the essential things that the La Forest report recommends be done to change the Human Rights Commission?
Mr. Niemi: One is to have adequate resources. Another is basically to revamp the whole investigative process. Right now, in many cases, the complainant does not even see the investigator. Everything is done over the phone. The regional offices of the Human Rights Commission do not have enough resources to do the job. The moment we file a complaint, we have to wait, and I think the most recent case is more than a year now, in order to see who the investigator is. The wait just to see who will be doing the investigation takes a year. That is quite long, and people would certainly get discouraged. We do have one particular case against a federal agency where the complainant decided to abandon the complaint in acceptance of a lesser settlement.
Senator Oliver: Given the fact that you have 12 files before the Human Rights Commission now, why would you bother, given the potential risk of costs, and why would you bother, given the delays you have outlined today?
Mr. Niemi: Those who feel they have been discriminated against have no choice. They have to go through the system. First, they cannot retain counsel on their own because they do not have the money, most of the time. They may have been suspended.
We have three cases with Health Canada right now. One is going before the tribunal, one is going before the Public Service Labour Relations Board, and we have another case that just gone before the Human Rights Commission in Quebec and in Ontario. People have no recourse but to go there because they are caught in a labyrinth. They have to go there. They know that, very likely, eventually, it may not go very far, but it is better than nothing. This is why additional support from outside can help, because cutting through the bureaucracy is very difficult.
In general, some civil servants may even ask themselves whether their union is really fulfilling the duty of fair representation properly.
Senator Oliver: Do you know whether any complaints have been taken to the courts under the Charter because of these delays?
Mr. Niemi: Not at the federal level per se. I believe the only case that went to Supreme Court was the Blencoe v. British Columbia (Human Rights Commission) case, involving a former cabinet minister in B.C. In Quebec, a delay of over five or six years led the Quebec human rights tribunal to throw out a case because of the unfairness caused to the alleged respondent, due to what they called excessive and unreasonable delay in the investigation. We have to be, as policy-makers, very careful with the consequence of the delay because it can violate the Charter of Rights and Freedoms of the respondents.
Senator Munson: Thank you for being here. You spent a great deal of time taking to task the managers and their roles and attitude and past attitudes in terms of dealing with discrimination. It does not look very good in some respects in many departments. You raised an interesting point, Mr. Niemi, on unions. You obviously have some serious concerns, and you mention wondering whether the union is fulfilling its role.
Do you feel the unions are fulfilling their role in protecting and/or encouraging the hiring of visible minorities in the public service?
Mr. Niemi: Organically, at the top, the labour leadership is committed to employment equity, at least in this course. In terms of actuality, the trickling down of their commitment to employment equity and how the unions in specific workplaces play a role, you may find, if you decide to examine the situation, a rather inconsistent picture. It depends on which union it is about. It depends on the infrastructure of the union, and it is also depends, as a rule, on the representation of the various equity designated groups inside the union structure, and especially at the union executive level. Again, this varies substantially.
Senator Munson: Do you have a specific union in mind that is not doing its job properly?
Mr. Niemi: I do not believe that I am here to point fingers. I am here to raise the fact that I believe the Canadian union movement, which has been at the forefront of many social battles, should be encouraged or invited by the committee to take on, in a more proactive manner, the fight for greater equality in the workplace.
Senator Munson: They should do that.
Dr. Natufe, I am curious about the third recommendation, new special measures similar to embracing change, meaning the government-wide action program of 2000, the five year strategy, but with stronger enforcement and accountability. What is stronger enforcement and what is accountability in this case?
Mr. Natufe: Embracing Change was accepted, and the Treasury Board had the secretariat to manage it across the system, but even though managers were "accountable," there was not any instrument to determine the penalty for non-accountability. To be accountable means you are responsible for a particular project, failure of which you would be visited by X, Y, Z. Even though accountability is used so frequently, we have not seen corresponding measures to hold managers or deputy ministers accountable or to demonstrate accountability if they fail to comply. What we are asking for here is stringent measures, punishment, if you will, to ensure that those who fail to comply will be punished.
Senator Munson: What kind of punishment?
Mr. Natufe: Well, Senator Munson, I hope you do not want me to say that to you.
Senator Munson: We use this word around here, everyone talks about accountability — I am accountable, you are not accountable, we are accountable — and when you say accountability I want to know what kind of action you would recommend.
Mr. Natufe: It is a valid question, I must concede. To give you an example, if I were to constantly violate traffic regulations on Rideau Street going through a red light with my car, I think the police would be doing justice to throw me in jail, if I constantly break that traffic regulation. Where managers have consistently failed to comply with the EE Act and there is no punishment, would I recommend, say, for punishment, losing their job, for example? I do not know, but something very severe. Thrown in jail for six months? I do not know. It is for senators to determine, but they must be punished. There must be a punishment for a crime. It is like the book by Dostoyevsky, Crime and Punishment.
Senator Munson: Thank you for that. I am sorry; I just could not help myself. I thought I was a reporter again and I just had to get an answer.
Senator Baker: Thank you for the excellent presentations. I just have one question. It relates to the Centre for Research-Action on Race Relations dealing with Charter research and litigation on racial equality issues. During your presentation, sir, you mentioned that there are Attorneys General in Canada. I distinctly heard you say "Attorney General," who would be demanding costs at the end of a process. Did you mean the federal Attorney General or the Attorney General of a province? What Attorney General would demand costs to an appellant who is merely exercising their rights under the law? Who would be that Attorney General? Can you give us an example of who this person is, since this is being televised and perhaps the Attorneys General are watching?
The Chair: Could you also tell us, is it the human rights tribunal you were speaking to or appeals to courts?
Mr. Niemi: It is appeals to court. If you wish, I could provide you with the information in writing. This is a case involving the Attorney General of Canada, yes.
Senator Baker: Attorney General of Canada. Are you informing the committee that the Attorney General of Canada asked for costs and received costs for an action that someone brought that it was their right to bring and the Attorney General of Canada demanded costs? Madam Chair knows what costs are, she is a former judge, and Senator Oliver knows exactly what costs are at the end of the process. In other words, you are asking for the cost of the defence or prosecution, in other words, the costs of the lawyer being there. I cannot understand that.
Mr. Niemi: It is on the record. We can provide you with clear information on that case. My colleague worked on that.
Senator Baker: Would that not be the biggest bar to someone, even to contemplate appealing anything before a court, if there would be the danger of being subjected to costs if they lost their appeal?
Mr. Niemi: That is always the risk. To go beyond the question of that case, what we suggest is that in looking at the question of discrimination in the federal public service, it would be interesting for — obviously the Auditor General has not looked into it but sometimes in some departments that come before Human Rights Commission, or tribunal, the courts often — Canadians to know how much money is spent for a department or the Attorney General of Canada to defend a department or respondent in a case or in a particular case. Some cases go on for years, for example, Grover v. Canada (National Research Council). Some of these cases go for 10 years. We never know how much money is spent on the government's side to fight these individuals because these individuals say they have to spend all their life savings to seek justice.
It is interesting to know. For example, we assisted a case of a Black RCMP officer who felt he was unjustly harassed and terminated. That man went through 53 days of hearing before the human rights tribunal in three different cities, because he was from Montreal and the incident took place in Burnaby. At the end it cost him $30,000 in legal fees from his own pocket.
Senator Baker: Yes, but that is different though. I understand that. However, you are saying that the costs you referred to were the costs at the end of the process that the Attorney General would ask the loser of the case to provide to them for the payment of the court proceedings.
Mr. Niemi: Yes. I could provide you with that information.
Senator Baker: That is incredible, because, Madam Chair, as you know, the Attorney General has his or her lawyers on staff. They will be paid anyway. Yet, the Attorney General can turn around under this system and demand costs of their lawyers appearing when an appellate is following through. I think, Madam Chair, that is a most disgusting thing, and perhaps the committee should look into it further.
However, I want to congratulate the witnesses on their excellent presentations. I was not aware of this business of costs.
The Chair: We would appreciate receiving those cases, because we need to look into where the cases originated. Was it the Human Rights Commission? Was it through complaints, through RCMP complaints? We have various systems for complaints, and then we have various appeals to our courts. One would have wondered whether you get costs because you have unduly acted in some frivolous manner, et cetera. Some judge would have had to make some assessments before the costs. I must say that this is a whole new area we have not looked at and I am pleased we are discussing it. When we have talked about costs, we have often talked about emotional costs and time, and said that going to court is expensive, but we are now delineating that further. It would be helpful if we got the cases and perhaps we can get some witnesses to follow up perhaps from the Department of Justice Canada.
Senator Baker: To my knowledge, from what I know of these particular cases, the judge and the court are not under any obligation to actually hear a case if it is frivolous. In fact, a notice of application to be heard is normally the process. That is why I cannot understand why an Attorney General would have the audacity to ask for costs.
The Chair: Before I do the fundamental error that a judge would do, I want to hear all the evidence on all sides before I make a decision whether it is audacious or not in a particular case. I think we want to look at whether there is this trend of costs and how you end up in that situation. We would want to look at whether it leaves discretion for anyone and whether it should be there in the first place. What we have been looking at in the past and brought to our attention is how long it takes and how difficult it is emotionally to have to present a case in a department and then seek to continue to work there or elsewhere.
There is one glaring case in Saskatchewan: You go through many levels with very little support and you keep winning, winning, winning, and then are you not taken back into the job that you ultimately wanted to do in the first place. You get something in lieu of. Then you start another whole process as to whether the job in lieu of is equal to what you had, and then you are on the treadmill again. We have looked at that.
Cost is one particular issue that we have not looked at, so we will wait to get more evidence on that. Counsel, I am sure you will agree with me — eminent counsel I should say — and the professor and judge will just stand back.
I had only one question. We have used the term "visible minorities." Dr. Natufe, you pointed out that women seem to receive double discrimination by being women of a visible minority.
When we say "visible minorities," this is identified in different places and in different ways. I think, Mr. Niemi, you said that unions have their own particular definitions. Is there one particular group in Canada, beyond women, that has been identified either geographically, by location or by country of origin, that has more difficulties than others, or are we properly designating visible minorities? It may be too complex a question.
Mr. Natufe: It is a valid question, one which we have grappled with at various fora. First and foremost, we did not define ourselves. The act defines us. The act defined visible minorities as non-white, non-Caucasian, non-Aboriginal, which means that anyone of Asian, Middle East, African, Caribbean or Black descent, or whatever, is a visible minority. In this big pot, you have Blacks, Indians, Chinese, Malaysians, Filipinos, Japanese, what have you. Each group in this big pot experiences discrimination differently across the country, whether it is a Black experience in Halifax, Toronto or Montreal, a Pakistani experience in Mississauga, or a Sikh experience in Toronto or Vancouver. I am not here to say that one group is more important than another, but they all experience varying degrees of discrimination across the country. This is also reflected in their intake into the civil service.
With regard to visible minority women, as I said earlier on, they face a double jeopardy, because they have not been factored, the well-calculated progress made by women, which is fantastic. I applaud that. I recall years ago when that was not the case in this country.
Perhaps my colleague will shed some light on that.
Adelaida Bustamante, Chief Executive Officer, National Council of Visible Minorities in the Federal Public Service: Perhaps with further research I would find out something more, but right now I do not think that more definition needs to be done for "visible minority."
The Chair: Where I was leading is that if we say "visible minorities" and we want to attract more, there are always minorities within minorities, and differences, which you quite rightly pointed out. Are we missing the point when we do not identify that in our recruitment? If we are in Mississauga, do we recruit differently than in Montreal? Should we be looking at more regional or local variations in advertising whatever support systems because of the variation within the minority group?
Mr. Niemi: Could I make a suggestion? I believe that the data collection process, both by Statistics Canada and under the EEA, or even what private employers do, is practical and, in general, detailed enough to allow for an employer to look at where the subgroup under-representation is. Whether from a business common sense viewpoint or from a question of fairness viewpoint, one does have the tools in order to determine in which subgroup the under-representation takes place and needs to be corrected.
For example, we should stick with the term "visible minorities," but in the implementation of that, one should always look out for where specific subgroups may encounter certain special barriers and act accordingly. If visible minority women have more problems than men in being recruited or moving up the ladder, then corrective action needs to be taken.
One example is that in Montreal we have an employment equity program to get more visible minorities into the police service and even the police training programs at the academy level. It has been brought to our attention that visible minorities are enrolling in greater numbers. However, the one group that tends to fail at the admission level is the Black group, and they tend to fail the swimming proficiency test. We have enough subgroup data to determine why Black applicants tend to fail the swimming proficiency tests, in order to come up with either changes or corrective action.
Senator Oliver: The specific question that the chair asked does have an answer, and the answer is that the definition of "visible minorities" is so broad that there are many groups within it. There is one group that is more discriminated against than the other. This has been scientifically tested by a number of professors in Canada and the United States.
One of the best studies is done by Professor Hum at the University of Manitoba. That study shows that Black men from Africa, the West Indies, the United States and Canada should be taken out of the definition of visible minorities because they, more than any other group in the world, are more heavily discriminated against than any other. Hum, in his research — and many other professors — has demonstrated that with a series of very persuasive data. There are a number of people in Canada, in the public service in Canada, who have said that they agree that the largest barriers to the advancement of visible minorities in the Public Service of Canada are against Black men. Those studies are worth bringing before the committee. There is no other category — Chinese, Japanese, Filipino — that has the same degree of systemic discrimination against it as Black men.
Mr. Niemi: We also need to know why, in this case Black men, or any subgroup, experience such-and-such form of discrimination, in order to have a more detailed understanding of the situation.
The Chair: We are over our time now. I want to thank both of our presenters. You have certainly opened up new avenues for us to consider. If there is any further information, any report or data that you wish to file, I would very much appreciate your contacting the clerk.
Our study is not over. We have pressed you for answers. We will join in common cause in continuing to try to overcome the barriers that appear to be in the way of all Canadians having a fair and equal chance before the public service to serve other Canadians.
I want to underscore that merit is an issue that should have no colour, no barrier and no gender. Merit should stand on its own as the test within the public service. We continue to hear that we are some distance from that. We hope that our study brings forth some recommendations that bear fruit. You have certainly helped us in that study and we thank you.
We will adjourn at this point to allow the witnesses to leave the table. We have some budgets to pass, if we wish to continue our studies.
We have before you all of the budgets. They are the pro forma small budgets for our ongoing studies. The only budget that is of some significance, although not as large as others that we have had in the past, is the last one of your pile, if they are in the same order as mine.
The special study on Canada's international and national human rights obligations is budgeted for $171,050. This has been put through the steering committee. Basically, this is the budget that we had approved previously for the Human Rights Committee before prorogation. We had thought that we would be able to finish our study this fall. It included an activity of travel and other issues. We should now like to continue the study in the coming months. It is on the Human Rights Council, to remind senators.
If there are any questions on that budget — since it is the largest budget. If there is no comment, do I have a mover?
Senator Oliver: I so move.
The Chair: Thank you. Is it agreed?
Hon. Senators: Agreed.
The Chair: Carried.
There are four other budgets. They are the ones that have been approved by both the Senate and this committee. They are for $3,200 for the usual professional services, working meals, postage, books, and so on.
Senator Oliver: I see under A Hard Bed to lie in: Matrimonial Real Property on Reserve, you have five meals. That is for five meetings. What if you needed six meetings? Under this system, is it possible, if you need a meal for another meeting, to take it from one of your other budgets?
The Chair: I think we can seek approval again for that.
Senator Oliver: You have to go back to Internal Economy again?
Jessica Richardson, Clerk of the Committee: Yes, or ask to transfer money between categories. Say, perhaps, we had not used the money for books and promotional materials. We could then ask for permission to transfer the money between categories.
Senator Oliver: On that basis, I move that item.
The Chair: Thank you. Agreement?
Hon. Senators: Agreed.
The Chair: Carried.
The committee adjourned.