THE STANDING SENATE COMMITTEE ON HUMAN RIGHTS
EVIDENCE
OTTAWA, Monday, May 15, 2023
The Standing Senate Committee on Human Rights met with videoconference this day at 4:02 p.m. [ET] to examine such issues as may arise from time to time relating to human rights generally; and, in camera, to examine such issues as may arise from time to time relating to human rights generally.
[Editor’s note: Please note that this transcript may contain strong language and addresses sensitive matters that may be difficult to read.]
Senator Salma Ataullahjan (Chair) in the chair.
[English]
The Chair: Honourable senators, I am Salma Ataullahjan, chair of the committee. Today we are conducting a public hearing of the Standing Senate Committee on Human Rights. I will let the members of the committee who are participating in this meeting introduce themselves starting with the deputy chair.
Senator Bernard: Wanda Thomas Bernard, Nova Scotia.
Senator Hartling: Nancy Hartling, New Brunswick.
Senator Arnot: David M. Arnot, Saskatchewan.
[Translation]
Senator Gerba: I am Amina Gerba from Quebec.
[English]
Senator Jaffer: Mobina Jaffer, British Columbia.
The Chair: Today our committee will continue its study of anti-Black racism, sexism and systemic discrimination in the Canadian Human Rights Commission, or the CHRC, under its general order of reference. In recent years, allegations of anti‑Black racism have raised concerns about the CHRC’s treatment of its own employees as well as its decision-making processes when dealing with complaints.
Let me provide some details about our meeting today. This afternoon, we shall have four panels. In each panel, we shall hear from the witnesses, and then the senators will have a question and answer session.
Now I shall introduce our first panel of witnesses. Our witnesses have been asked to make an opening statement of five minutes. We shall hear from the witnesses and then turn to the questions from the senators. I wish to welcome our first witnesses who are with us via video conference today. We have Kasari Govender, Human Rights Commissioner, British Columbia’s Office of the Human Rights Commissioner; and Dominique Clément, Professor of Sociology, Faculty of Arts, University of Alberta.
I now invite Ms. Govender to make her presentation followed by Professor Clément.
Kasari Govender, Human Rights Commissioner, British Columbia’s Office of the Human Rights Commissioner: Thank you to the chair, deputy chair, and members of the committee for inviting me to be here with you today. I am joining you virtually from the unceded and traditional homelands of the Musqueam, Squamish and Tsleil-Waututh nations here in what is now known as Vancouver. I join you in the spirit of our continual work to decolonize Canada and our gratitude for those who have cared for these lands and these waters for so many generations.
I appreciate being asked to speak with you today about the benefits and drawbacks of a direct access model to human rights commissions as compared to the model of commission screening where the commission plays a role in screening. I thought it might be useful to start with the description of our model here in B.C., which is unique in Canada. I will then turn to a few lessons that I have learned since being in this role. I have learned about the benefits and drawbacks of this model and conclude my opening remarks with my overall perspective on direct access models like ours.
In B.C., we were without a Human Rights Commission between 2002 and 2019. There are a few key points to make about the development of our office. In 2017 and 2018, the government engaged in a consultation process, which resulted in a report entitled A Human Rights Commission for the 21st century: British Columbians talk about Human Rights. That was a report and recommendations to the attorney general, but it was made public. They spoke to many community organizations and leaders in British Columbia and came up with the model that was developed based on those recommendations. They adopted all the recommendations for the structure from that report.
One of the recommendations was the office be established with the human rights commissioner as an independent officer of the legislature, much like the ombudsperson or the Auditor General. This makes my role the ninth officer of the legislature here in British Columbia. I was appointed in September 2019, so we’re still very fresh and my perspective belongs in that context of only having been in this role for three and a half years, but also having been responsible for building the model that was on paper in the human rights code into something meaningful that could take action on human rights.
There are three features of the B.C. model, and the combination of these features makes us unique. One is the independence from government set up as an independent officer of the legislature. The Northwest Territories has this officer of the legislature model too, but because their political system is different, it’s an apples-and-oranges type of comparison.
We also have an entirely systemic model. We do not have any interaction with the complaints process of the tribunal beyond potentially intervening in complaints at the tribunal. We have some communication mechanisms with the tribunal, but we play no role in triaging complaints and no role in the settlement or anything like that. We don’t represent people at the tribunal. There is only one other model in Canada that is similar to that piece, which is the Ontario model, that doesn’t have any interaction with the complaint process.
The third piece that makes us unique is that we have the mandate under the legislation to promote compliance with international human rights law, and that really is unique in Canada. The Canadian Human Rights Commission has some specific interactions with international human rights law, but not the kind of broad mandate that we have.
In my view, B.C.’s model is most in alignment with the international document, the Principles relating to the Status of National Institutions, also referred to as the Paris Principles, which really focus on the independence of the commissions from government.
As you heard from Professor Bhabha in a previous hearing, removing the gatekeeper role for the commission does not solve delay at the tribunal, in my view, but it does address the efficacy of the commission itself. As a second-generation commission — that is, one that doesn’t have a role to play in the acceptance or resolution of complaints beyond that of an intervener on occasion — we are able to focus solely on systemic issues, as I mentioned. There is no competition for our resources between immediate conflict resolution and long-term systemic change. There are no conflicts of interest that can arise between the work on an individual file and work to reform systems because all of our efforts are directed at the latter.
The primary complaints about first-generation commissions that I hear are twofold. First is that commissions can cause delay in the complaint process, and the second is that commissions either don’t have the mandate or the resources to effectively address systemic human rights issues. They have a limited ability to tackle human rights issues upstream because a lot of the resources go to the complaint process if they are involved there.
Where those two issues are intertwined is where funding is concerned. Adequate funding will solve delay issues and, to some extent, the systemic concerns by building capacity within the commission. That piece has very little to do with structural change. However, obstacles to systemic advocacy also lie in these structural questions. When the process is as intertwined in the Canadian Human Rights Commission context, conflicts of interest can arise. If a commission is working on addressing an issue with a federal body in the context of a complaint against that body — that is, a complaint around a federal body — they may not be able to address that issue from any other angle such as advocacy, community engagement or public communications. In my view, these are serious limitations on any human rights commission but especially at the federal one as it acts as Canada’s national human rights institution as accredited by the Global Alliance of National Human Rights Institutions.
I don’t think that a structural shift alone will solve any systemic racism that has been identified in the commission nor does it guarantee better outcomes in the complaint process. What it could do is be a fresh start, one in which the mandate is renewed and the culture is rebuilt. It can also, very importantly, make much-needed room for the commission to take more leadership on changing the federal laws, policies and practices where systemic inequality is embedded.
Those are my opening comments. I very much look forward to your questions and the discussion to follow. Thank you.
The Chair: Thank you. I will now turn to Professor Clément to make his remarks.
Dominique Clément, Professor of Sociology, Faculty of Arts, University of Alberta, as an individual: Thank you. It’s an honour to be speaking with you today.
I’m here in my capacity as an academic in the social sciences who has spent almost 20 years studying human rights laws in Canada. In addition to having consulted and collaborated with several human rights commissions across the country, including the CHRC, I have studied several human rights institutions around the world. My area of expertise is mainly around how people experience the law, how the law and institutions are perceived by the public and the broader social significance of human rights institutions. I would like to focus my comments today on three particular issues, the first of which will complement the preceding comments.
First, this proposal, which has been mentioned several times in these hearings as a possible solution, namely, that the federal government should shift to a direct access model. While I am deeply sympathetic to frustrations expressed about the commission’s gatekeeper role, I would urge the committee to be cautious in considering such a proposal. Our research shows that the direct access model is rife with delays, that there is likely to be only a modest increase in the number of cases to reach a hearing, that there can be an increase in backlogged cases and that complainants are less likely to succeed in their cases under a direct access system. There is a reason why the commission model remains the norm across Canada.
Now, to be sure, in this particular situation, where there is evidence of systemic discrimination within the CHRC, it profoundly undermines its role as a gatekeeper. Yet people using the direct access system face extensive delays are much more likely to appear at a hearing without legal representation and lack the resources and support to investigate a complaint among other issues. If a tribunal model were to be recommended by the committee, as the La Forest report recommended in 2000, it would be essential to have publicly funded legal assistance.
Second, the committee might consider how the current crisis facing the CHRC impacts its reputation in Canada and abroad. In 20 years, I have yet to encounter an anti-discrimination legal regime that is superior to Canada’s. We really are a global leader in human rights law. Most countries’ human rights institutions date to the 1990s, whereas Canada’s system dates to the 1960s if not the 1940s. My colleagues in Europe, for example, often express envy at the way the Canadian system functions. I say this in no way to dismiss the need to address the systemic discrimination within the CHRC. Far from it. I want to stress the symbolic significance of human rights institutions. Their power lies in public perception. People take comfort from the existence of this legal regime even if they don’t engage with it themselves. The current crisis is a crisis of confidence in public perception and addressing this issue must be part of the solution.
Finally, in addition to the solutions suggested by previous speakers, the committee should consider recommendation to strengthen the CHRC’s education mandate. One of the most unfortunate trends among human rights institutions across the country since the 1990s has been a shift of resources away from education toward processing complaints. Yet these institutions were never designed to be primarily complaints-driven. A fundamental feature of the remit of every human rights institution in Canada is to create a culture of rights as a preventative strategy. Of the dozen or so government-sponsored investigations into provincial and federal human rights laws since 1983 — the most recent being in 2017 — each one has emphasized the essential feature of education. Education means funding and staff to produce training tools for employers and unions; providing public speakers to community or educational gatherings; engaging youth on social media and much, much more. Yet resources have been so badly reduced that, for all intents and purposes, human rights institutions have largely abandoned their education mandate in Canada.
In considering solutions and strategies for moving forward, the Senate might even consider recommending a formal review of the statute. It has, after all, been almost a quarter-century since the last one. Still, I focus my recommendations on education because education has the potential to change culture within institutions, including within the CHRC. In revitalizing the commission’s education mandate, it would, among other solutions proposed during the hearings, foster a culture of rights within the CHRC that could function as a preventative strategy rather than a current process of focusing on reaction and dealing with discrimination after it occurs. Thank you very much.
The Chair: Thank you very much. Before asking and answering questions, I would like to ask committee members and witnesses in the room for the duration of this meeting to please refrain from leaning in too close to the microphone or remove your earpiece when doing so. This will avoid any sound feedback that could negatively impact committee staff in the room.
We will now proceed to questions from the senators. I would like to remind each senator that you have five minutes including question and answer. We will start with Deputy Chair Bernard.
Senator Bernard: Thank you, chair. Let me put myself on the second round now because I know I’ll need more than five minutes with these two witnesses.
Thank you both for your testimony today. We appreciate you taking the time to be here. I think I’ll start with Professor Clément. You talked about Canada’s place on the world stage with regard to how human rights are seen around the world, and you have been studying human rights law for 20 years. I would like your opinion on this: How did we get here? How did we get to a place in Canada where there is a whole question of confidence in our federal Human Rights Commission because of the finding of systemic discrimination and racism? How did we get here? What is your research showing us?
Mr. Clément: Thank you for that question. What is happening at the CHRC, unfortunately, is simply, in some ways, a reflection of Canadian society. Unconscious bias, systemic inequality and systemic discrimination remains pervasive in this country.
I teach an introduction to sociology course on social problems. When we look at, in this case the situation facing Black Canadians, statistically, they face immense challenges and structural barriers to equality in our society. Part of my answer is that it is a reflection of the broader society.
The second part of my answer is that one of the strengths of the Canadian system has always been, as I mentioned, education, but we have shifted away from that. These institutions — and it’s not only federally, it’s across the board in the provinces as well — have essentially become complaint systems. In some ways, our complaint system is one of the best in the world. Compared to Europe and the United States, ours is one of the best. However, because the focus has been on complaints, we have lost that focus on developing a culture of rights, which is really the only way that we can address systemic inequality. We got here, despite having a world-class system, because of the focus on resources on complaints rather than education. It has allowed these types of developments to occur within these institutions. Thank you.
Senator Bernard: What evidence is there that a focus on education would really make a difference with regards to a culture of rights in this broader context of anti-Black racism which we know to be quite rampant in Canada?
Mr. Clément: In terms of evidence, it’s theoretical in the sense that education is the only way we can ever hope. We need a preventive strategy. We need a strategy that is not reactive; it has to be preventive. In that sense, an education is our best option, and making a preventive strategy rather than simply a reactive one.
In terms of evidence, I would also point out that we do, for example, interviews with people who have been involved in these processes in Alberta and other places in Canada. It is remarkable, the lack of awareness that people have about how the system operates. Because of that lack of awareness, they are vulnerable to pressure, bias and abuse by staff in human rights commissions.
The hope would be, in terms of evidence — seeing the evidence, given that people are unaware of how the system operates — education would hopefully make Canadians more empowered to use these institutions. Thank you.
Senator Bernard: Ms. Govender, you talked about the fact that a structural shift alone is not likely to make changes and a focus solely on systemic issues limits one’s ability to deal with more of the upstream issues, the kind of prevention work that our other witness is talking about.
Can you say more about how your office is addressing those specific issues? What recommendations would you have around addressing the systemic nature of anti-Black racism itself?
Ms. Govender: If I could clarify, my comments were that a focus on taking away the complaint function — moving it to this second-generation model, or a direct-access model, whichever one you call it — in my view, would increase the ability of a commission; in fact, it necessarily will change the ability of the commission to do the systemic work, including but not limited to education.
In our office, our mandate is entirely to protect and promote human rights, again, divorced from the complaint structure for the most part, except intervening in cases that have a systemic component.
We do work that is intervening in cases — I’ll start there, since I already mentioned it — getting involved as a third party in ongoing litigation, either before the courts or the tribunal.
We have the ability to launch public inquiries. We wrapped up a large public inquiry into the rise of hate during COVID and made recommendations to government for change.
We have a mandate around education. We run big public awareness campaigns as well as more targeted workshops, for example, to help people have that kind of understanding that you heard about from my fellow panel member here around the role of one-to-one education, helping people to understand what is human rights law? What are my obligations and rights?
We do large research projects and work on law and policy reform. We do a lot of communications and engagement to engage people in our work. That’s the range of systemic work that we do. It could be set up differently. It could be a different range. That’s the way that we have breathed life into the human rights code construction of the commission.
Senator Arnot: Thank you, witnesses.
Professor Clément, I endorse what you are saying. I believe in the power of education. I believe that we need to build a culture in Canada that respects human rights. The way to change the culture of the community is to change the culture of the education system.
Do you think it would be a good idea for educators in Canada, from grades K to 12, to focus on the rights and the responsibilities of citizenship in Canada; to focus on respect for every citizen without exception; to use the five essential competencies of Canadian citizenship — the five E’s — that students should be ethical, enlightened, engaged, empowered and empathetic; that we should be studying six big social context issues that are apparent today: Racism, discrimination on the basis of gender, discrimination on the basis of mental health and addictions and the discrimination on disabilities?
I ask that in this sense: There is a set of resources that was built by the Saskatchewan Human Rights Commission that does exactly this. It is now owned by the Concentus Citizenship Education Foundation. It intentionally and explicitly teaches Canadians the values of Canadian citizenship, particularly democracy. That emphasis would be a way that we could build a culture of rights in this country.
Do you have any comments on that, sir? Are you aware of those resources? If you are not, I commend them to you. If you wrote anything in a follow-up to this committee about this, it would be quite helpful.
Mr. Clément: Absolutely. I am aware of those resources. Saskatchewan, in many ways, has been a leader in producing educational materials.
We are currently doing a survey of human rights commissions’ educational content across Canada. What we’re finding is many commissions’ resources date back to 2012–2017. That becomes problematic, especially around gender identity, which is now commonly a ground of discrimination across Canada. The language around this has changed dramatically in the last five to ten years. You have to update those resources. Many commissions haven’t done that.
The La Forest report in 2000 strongly recommended that the commissions work together to avoid overlap and to take advantage of what Saskatchewan was doing and use that. It hasn’t really happened. That’s a leadership role that the Canadian Human Rights Commission could play in terms of mobilizing resources across Canada and avoiding overlap.
Your point about K-to-12 education is essential. This is where the commission should play a role. There is great work being done by NGOs in Canada. I work at the John Humphrey Centre for Peace and Human Rights. They are in the schools with the kids and the teachers. They are doing fantastic work while working on shoestring budgets. They try to work with the commissions. The commissions have very few resources for education. I completely agree with what you have just said. I do think more can be done in a leadership role for the CHRC.
Remember that human rights law in Canada is non-partisan. Every political party has supported and advocated for human rights. This should be an education issue, and it’s a non-partisan one we can all embrace. Thank you.
Senator Arnot: This question is directed to Ms. Govender, the Human Rights Commissioner of British Columbia.
I agree that it’s a mistake to fully embrace an open system, in my opinion, because we are making a number of assumptions. From the evidence that I can see, Ontario currently has a backlog of 9,000 cases. In 2022, British Columbia had a significant backlog; they were unable to meet the service standards expected of them. This is the tribunal, not your commission. The tribunal had, on average, a wait time of between four and a half and seven years before there is a hearing.
In Alberta, about three years ago, there was a wait time of six years before you could get a mediation hearing.
In Manitoba, there is a backlog of 400 cases. It takes two years before an investigator is assigned.
Before people embrace a tribunal model, you are getting, in my opinion, access to delay, not access to justice. The evidence is overwhelming about this. Do you agree?
Here’s a broad question for both witnesses: Do you think that this committee should look at creating a study on the human rights regime in Canada, its strengths and weaknesses? For instance, we don’t have a universal human rights code in Canada. In the provinces and territories, what is protected is not the same. We need to have a robust examination.
The common denominator in issues facing all the human rights commissions in Canada, including this federal Canadian one, is chronic underfunding. They are completely underfunded. They can’t do their work. The evidence is overwhelming.
Do you agree that this committee should consider studying an in-depth review of the human rights regime in this country?
Ms. Govender: Well, if I can just start with the beginning, I would like to clarify that I am not against creating a direct access model. In fact, I think our model here in B.C. is working well from a commission perspective.
The delay has remained. Again, I think that is due to a lack of funding, which is separate from the issue of whether it is set up as a direct access model. It is: Are commissions and human rights institutions in this country properly supported? I think the answer to that is. No. That’s the root of massive delays, in my view. I totally agree with those massive delays. I agree it’s a huge problem of access to justice. But it is distinct from the question of whether it should be direct access. It has often been confused, and I think the experience for us is that it makes no difference whether there is a commission involved or not. It’s about properly funding the system to be able to meet those complaints.
B.C. has announced a major influx of funding for the tribunal. We’ll see what happens there in terms of being able to address the delay. That was very recent; I believe that was in March.
Senator Arnot: Ms. Govender, is there any evidence that Black Canadians’ complaints about racism and discrimination have been treated in a more fair and equitable manner for a fair and equitable outcome in British Columbia using the direct access model of the tribunal?
Ms. Govender: I don’t have that at my fingertips. Also, I don’t think it would be helpful. For 17 years, we had only a tribunal. We were the only jurisdiction in the country without a commission. We had nobody doing that triage, access to justice model, except a non-profit doing support for folks. But no public body was charged with doing that support that a commission plays in this more traditional first-generation model, nor did we have a public body looking at systemic change. We have had only the last three and a half years to go by, so not enough time yet to see how that change plays out.
In my view, again, the experience of starting this organization and running it is that there are a huge number of issues on our plate, and a lot of efficacy in having that separated from the complaint process because we’re able to have the resources to address it and also to ensure that we’re not conflicted out of working on systemic issues, which is the message I often get from my colleagues across the country.
Senator Arnot: I didn’t get an answer to my second question from either of the two witnesses.
The Chair: Can we put it on second round?
Senator Arnot: I want it done before the end of this panel. Thank you.
The Chair: Before I turn to Senator Jaffer, I want to acknowledge that Senator Kim Pate has joined us. Welcome, Senator Pate.
Senator Pate: Thank you very much.
The Chair: You represent the Province of Ontario, for anyone watching and wondering.
Senator Jaffer: Thank you very much to both of you for being here. To have Ms. Govender, the commissioner, from B.C., is a real pleasure. Her mom and I worked together for many years. I know of your work in B.C., so it’s an absolute pleasure to have you here.
I’m glad that you are here, because I’m struggling. Up to now, I believe we have been skirting this. The real reason that this study is being done is because of racism, mainly in the Canadian Human Rights Commission, and we have had employees speak about this. People who work in the commission are speaking about how they are being treated, let alone what happens to people who come in front of the commission.
Ms. Govender, does the Canadian Human Rights Commission have to start again? Does it need to completely change? If someone who is working in the commission is saying, “I’m being treated unfairly,” how can a Black person with a complaint go to the commission?
Ms. Govender: Two questions are embedded there. One is: Do we need a complete change in order to create change in the commission? The other is: Do we need a complete change so Canadians will see there is a new commission that they can trust? It goes to Professor Clément’s comment around credibility of the commission.
I don’t think I can answer the first question to any satisfaction; none of us can, in a crystal ball sense. A new structure could be set up for all kinds of other good reasons as well. There are other good motivations for working toward an independent model that is more systemic in focus, can be bold on actions and has the mandate to address a systemic issue — not just tinkering around the edges but getting at the heart of issues. That kind of commission, from our experience, is held to a very high standard by our staff, communities and the public for very good reason. They see us as the ones who need to be leading the way, and they are holding us to that high standard. We get a lot of feedback, both good and bad, to help move us to a better place.
That would be my experience on that question. The credibility piece is key. It is important to show Canadians that real action is being taken, and that Black and other racialized people in Canada can see this as a real avenue for change.
That kind of change would be useful in that way as well.
Senator Jaffer: My colleague Senator Arnot and Professor Clément talked about delays, but delays are in everything, including the court system. It’s not just the Human Rights Commission or the direct access. Delays exist everywhere because of resource issues. This is not to do with the commission in particular but to answer what my colleague was saying. Not that I’m supposed to answer here, but I think the delays are inbred in all our processes.
You started with decolonization. For the last few weeks, we have been hearing, “Well, that exists in society.” I think Professor Clement also spoke about this. That exists in society. But I thought you go to the Human Rights Commission to get redress. I’m confused. I can’t accept that by saying it exists in society that it then exists in the commission. Can you comment on that?
Ms. Govender: The independence that we have as a commission has helped us to name clearly that one of the five strategic priorities during my term is decolonization work, and that it has allowed us to be bold in what we see as that. I’m not holding us out to be a perfect standard because I think that would be wrong. We are formed by colonial statutes and led by a non‑Indigenous person. I am non-indigenous. I think we need to be humble about our place in decolonization for that reason. I also think that the independence allows us to be entirely separate from how government may define “decolonization” and to walk that path necessarily with government, to be bolder, and how we do that.
Also, I can speak as a newly set-up commission. We needed to imagine what we could be in the world. Part of setting up a new organization is to create that vision. We were able to think through how we do the things we do — not just what we do, but how do we do the things we do a bit differently? How do we put relationships at the centre of that? Reconciliation, relationships, respect, reciprocity — with these goals of decolonization, how do we build our organization from the ground up, not how do we reform the organization, which is a different question to ask?
Senator Jaffer: Thank you.
[Translation]
Senator Gerba: Welcome to the witnesses.
According to our two witnesses, it’s a difficult issue and a direct access model requires careful consideration.
I realize that many of the witnesses who have appeared before the committee are divided on whether to adopt a direct access model. I do have questions about the system in place. For instance, Ms. Govender, can you describe how you handle complaints in British Columbia so that the burden of proof isn’t on the complainant? One of the causes of the delays seems to be that, not only are the complaints being dismissed, but also, when they do have to be addressed, they aren’t being dealt with fairly.
Given the way you work in British Columbia, do you always address the complaint taking into account that the complainant — so in this case, a member of the Black community — bears the burden of proof? Discrimination is a very pernicious thing. It’s hard to prove that the person responsible for the discriminatory behaviour is really racist. If the complainant has to prove that, it can result in delays.
How does it work in British Columbia? Should we look to your model to reduce or remove the burden of proof?
[English]
Ms. Govender: Thank you for the question. I wanted to also start with a clarification, which is that I am urging caution with the new model only insofar as it is seen as a complete answer to the problem. I am supportive of the model we have here in B.C., which is that we are entirely separate from the complaint process. We don’t triage complaints. We don’t deal with whether complaints make it through their various hurdles to resolution. We are totally separate from that. And our mandate is entirely on the systemic side, on law, policy reforms and education and so on.
I think that model actually works very well, but I would be cautious that if the Senate committee here is approaching it as a full answer to the problems of systemic racism. I don’t think those two things necessarily go hand in hand, and changing the structure won’t necessarily address the problems of racism that have been identified.
On the question of onus, the legal standard of proof is embedded in the law, so it isn’t up to the tribunals or commissions to be able to change that onus of proof on a complainant to be able to show that they have experienced prima facie discrimination. On the surface, have they experienced disadvantage on the basis of one of the grounds of discrimination as described in the various human rights codes, which are largely similar with some key differences. Then upon hearing the onus will switch to the employer in that context, or the duty bearer to say, was that discrimination justified.
So the Supreme Court of Canada would have to weigh in or the legislature would have to weigh in to change the way that the structure of the test works.
But I will say that the obstacles to dealing with complaints are somewhat alleviated by having this very separate model, the commission, that is separated from the complaint process, and that’s because we don’t have to deal with the structure of the law in the way it’s written in the human rights code. Our purview is much broader than that. We can work on issues of discrimination, which is the bread and butter of what we do, separate from the formal legal test as I have just described it.
That legal test is what all tribunals and courts must do upon a judicial review of those decisions. We are not bound within the same constraints, because we don’t deal with individual complaints. We can identify, for example, that racism is a problem in our communities, and we ran a public campaign province-wide on bus shelters, internet spots and libraries across the province to talk about racism, to get people to start asking themselves questions. It was the “Am I racist?” campaign. Big billboards asking, “Am I racist?” Then we asked some additional questions to help people start to be self-reflective. That’s just one example of the anti-racism work we have done. We have also done a large study into systemic racism in policing, for example.
We have been able to do that entirely separate from an onus on an individual that need to prove something. That’s why I’m suggesting the model we have here is so useful to address human rights in the province because we are empowered to do that work.
The Chair: I will ask a brief question of Professor Clément. You talk about education through the culture at the institution; you shifted away from education. These are the people who are in a certain position one hopes because they have an ability to understand why it’s wrong to be racist and why people would come to them to lodge a complaint. So what kind of education are you suggesting for them, because one would presume they already had that education? I mean, anyone I think, even an elementary schoolchild would know that racism is wrong. So here are people who are supposed to be protecting marginalized communities.
Mr. Clément: Thank you, senator. The challenge here is that often we’re talking about perhaps unconscious bias, the attitudes or beliefs that people have lived with their entire lives.
You talk about young children knowing about these issues; how can people professionally trained not? In part, let’s remember human rights laws barely go back two generations, and it has still not been that long of a time that we have actually been endeavouring to educate and talk about these particular issues. That’s part of the challenge there as well too.
At risk of repeating myself, I go back to the point of I think the reason why it’s able to develop and evolve in these institutions is because they have become so focused on the complaints process, I think sometimes we lose sight of the broader issues. I recall, for example, speaking with staff at the CHRC years ago when I consulted with the institution. I was shocked at the level of demoralization within the institution because they were so exhausted by the process of dealing with individual complaints. They want to focus on more systemic issues.
So your point is very well taken. It is surprising that in all institutions that we should see anti-Black systemic racism, partly reflects, I think, the way the institution is functioning. I also think it reflects the fact that we simply have very far to go to continue addressing these issues.
The Chair: Thank you, professor.
Senator Bernard: I have a few questions I want to ask. I think first I would like to ask Professor Clément, you just mentioned in your response to our chair that you consulted with the Canadian Human Rights Commission some years ago. Have you consulted with them more recently? Have you consulted with them around this particular issue?
Mr. Clément: Thank you, senator. No, the last time I consulted was when the previous commissioner was appointed and she had a group of experts together to do a consultation on advice for leading the commission forward during her term. But not in recent issues.
In fact, I can say that during that conversation, where there were multiple experts speaking to the commissioner about moving forward, I do not recall this issue coming up at all. This was five or six years ago.
Senator Bernard: You anticipated my question, because I was going to ask if the issue of anti-Black racism came up during that consultation, and if some of those experts around that table were people who had expertise in addressing anti-Black racism.
Mr. Clément: Thank you, senator. In truth, I don’t recall every single person who was on that discussion. If there was somebody who had expertise, it would have been only one. But I don’t recall. What I do recall from my notes, from having reviewed them in preparation for today, was being surprised that the issue was not raised. It wasn’t raised by the experts in the group, and it wasn’t raised by the people leading the conversation.
Senator Bernard: Interesting. Very interesting.
I want to unpack a bit this issue of delays and backlogs, and certainly one of the things that we have heard from some of our witnesses who actually tried to go through processes with human rights is that complainants face delays twice if they have to go through two systems. If you’re going through the commission and then you’re going through a tribunal, you’re actually going through the processes twice. Is that a duplication of services in a sense?
Also, if a complainant is going through those processes twice, how much of a burden is that for the person? Especially those who are not in a position to afford legal counsel and are going through these systems on their own.
Mr. Clément: Thank you, senator. One of the things that is so disturbing about the statistics that Senator Arnot mentioned is Canada uses administrative tribunals rather than the United States, for example, where courts are more common. The point was to make them more accessible. The point was to reduce delays. It’s a disturbing irony that with a system designed to be more accessible and faster that we have delays that we associate with the criminal justice system, which should not be the case with administrative tribunals.
Quickly, they are facing a burden twice. When talking about the tribunal system, I think it’s worth remembering that the vast majority of cases are settled through mediation and settlement, not through hearings. In most jurisdictions less than 10% of cases go to a hearing. We have interviewed and talked to many people who feel bullied, intimidated and forced at the mediation stage.
In some jurisdictions like B.C., they do it twice. They do mediation with a commission and potentially with a tribunal as well. So it is duplication. At that informal stage, we see concerning trends that can discourage people from either continuing a complaint or from settling in something — with a settlement they do not want.
The Chair: Senator Arnot, I think you already asked your question. Do you want to quickly say it again?
Senator Arnot: Do you think that this study that we have embarked on has exposed a large issue here and that we need to do a robust review of the human rights mechanisms in this country based on chronic under funding, non-universal protected rights in this country and the delays that were unbelievably exceptional and outrageous actually? Should we be looking at that as a separate study based on what we heard here and not take away from what our work is? That’s my question. We need to have a review of this whole system.
The Chair: The question is directed at both witnesses but if you can be brief in your answers, we would appreciate that.
Ms. Govender: I can start out. First, I wanted to clarify something. I think Professor Clement said, “In jurisdictions like B.C. people have to go through twice.” I wanted to clarify that B.C. does not have a system where you have to go through twice. This is a direct access model here in B.C.
In terms of the senator’s question, I think your big concern there would be jurisdictional issues. There are definitely very different processes across the country. However, given that the provinces have jurisdiction to legislate around human rights violations committed by people within provincial jurisdiction, they have the ability to create the human rights system that they want. I think you would run into obstacles in doing a federally instigated study on this when it’s a federalist kind of issue. It’s different jurisdictions taking responsibility for this.
That would be my comment on the issue. However, if that were to happen, I would bring the commissions and the tribunals together to have this conversation which could be very useful.
Mr. Clément: Thank you. I didn’t mean to say B.C. It’s not B.C., it’s the other jurisdictions. There is a desperate need for research in the field, certainly from the academic point of view. There are about four or six people in the country who have actually spent the better part of their careers studying human rights laws. There are surprisingly few experts. There are quite a few in the legal realm, but not many outside of that.
I was asked earlier about providing specific evidence. In earlier hearings, I’ve heard senators asking people for evidence, but the problem is that it’s not there. There is a desperate lack of research in this area. We definitely need more work on it.
The Chair: Thank you.
Senator Arnot: I didn’t get an answer to my question.
The Chair: Maybe you could submit a written brief with an answer to Senator Arnot’s question? He feels he didn’t get an answer and we have a time crunch. Let’s see if we have a couple of minutes afterwards. We have Senator Bernard and Senator Arnot who want to be, possibly, on the third round.
Senator Arnot: Correct.
Senator Jaffer: I want to thank both of you for being here. Professor Clément, the way you spoke about our Canadian Human Rights Commission, how excellent it is around the world, and so on, I have to admit that’s how I felt too until this study. I felt that you have not addressed the issue that you came to tell us about, namely, racism in the Canadian Human Rights Commission. Please forgive me for saying that — I don’t mean to be rude. You have talked about other issues, but you’ve not dealt with what is happening in the Canadian Human Rights Commission. Can you please explain that?
Mr. Clément: Thank you, senator. In focusing on education, I had hoped to offer recommendations for how to move forward to deal with the specific issues of anti-Black systemic racism currently occurring within the commission. In part, that was because I have heard recommendations that a complete transformation of the commission is the way to move forward.
I think we would lose the multiple generations of development evolution — that is one of the great strengths of the Canadian system — if we were to reset so to speak. My recommendation to dealing with this specific issue of anti-Black systemic racism is to try to focus on changing the culture within the commission rather than necessarily the structure of the commission.
While I would not recommend a complete redrawing of the commission, I would agree with your earlier point that a reboot is necessary. Something transformational is required at this stage.
Senator Jaffer: Thank you for that clarification. I heard you carefully and was frustrated because you didn’t deal with what was in front of us. Thank you both for being here.
[Translation]
Senator Gerba: I’d actually like to follow up on Professor Clément’s recommendations, specifically the idea that an ounce of prevention is worth a pound of cure.
On the whole, that’s what I took from your recommendation on education, because you talked about how the commission deals with discrimination after it occurs. How do we go about ensuring that the federal regime returns to its role when it comes to prevention and education? Does it have to be through statutory reform?
[English]
Mr. Clément: Thank you, senator. Potentially an overhaul of the statute, but approaching this less as a legal expert and more as a sociologist who studies how the law operates in practice, where the real change has to be in the way in which the resources are allocated and the priorities are determined by the commission. I’ll offer one example.
About 30 or 40 years ago, if you looked at budgets for human rights commissions, they would have had an explicit line for education. This is the amount of money we spend on education. This is our focus. Now, none of them do. There is not a single commission in Canada, including the federal one, that has a specific line item directed for education. For most of them, the funding is almost entirely toward staff.
My colleague who was speaking about the B.C. system provided an excellent example. One of the things B.C. does exceedingly well is having a budget and an organization committed to education. That is how we develop strategy, namely, by dedicating resources whose sole purpose is on education. Thank you.
Senator Gerba: Thank you.
The Chair: Senator Bernard, you can ask your question. Senator Arnot already asked his. We have three minutes, I think?
Senator Bernard: In the three minutes, Professor Clément, could I pick up on a comment you made in response to another question of one of my colleagues? You talked about some of your research and your participants’ stories of their experiences going through human rights commissions. Have you done any specific study with participants who have gone through the Canadian Human Rights Commission or tribunal? If you have, could you share highlights of what some of those participants have shared with you?
Mr. Clément: Thank you, senator. There is very little research across Canada, but some of the best work being done is in Alberta right now, with the John Humphrey Centre for Peace and Human Rights. Along with us, and others, they have done interviews with staff at human rights commissions, with experts and with people who have gone through the process.
We’re hearing that the mediation process is deeply flawed. People feel bullied and pressured. We’re hearing second-hand comments from staff who are saying things to people pursuing complaints that are not consistent with either the law or the statute. That seems to dismiss the investigatory function. For example, several people who were interviewed told us that during the informal process, human rights investigators were telling them, “You don’t have a case. You don’t have a chance for moving forward. You should just give it up now.” That is entirely inconsistent with their case.
We are hearing things like that. We are hearing about people who, after four or five years, simply give up on the system and don’t want to use it again. Part of it is what they are hearing from the people who work in the commissions; part of it is with the system itself and a lack of awareness on it.
I’ll wrap up by saying that generally, the theme we’re hearing from people is that the human rights system should be inspiring. It should encourage Canadians to feel like their concerns have been redressed. That is not what we are hearing from people who use the system. Thank you.
Senator Bernard: Are these qualitative studies or quantitative?
Mr. Clément: They are qualitative studies. The quantitative studies we have done looked at resolution rates, times to completion, budgets and things like that. There is a lot to be said deriving from those quantitative studies, but these are qualitative interviews with groups and individuals.
Senator Bernard: In those qualitative studies, have people of African descent talked about anti-Black racism in their experiences with the commissions?
Mr. Clément: Yes, senator. One of the curious things about their recent work — and I wouldn’t infer too much from it, it was just the way it statistically turned out — was that the vast majority of our interviewees who agreed to speak with us were involved in race-based complaints. Even though the majority of complaints involved mental or physical disability, there is a disproportionately high level of people who want to speak about race-based complaints. I don’t want to infer too much from that, but it may say something about the way that people are feeling passionate in terms of concerns about the way the cases are being handled.
Senator Bernard: Feeling passionate or not feeling —
The Chair: Thank you, Senator Bernard. We’re out of time.
Senator Bernard: I wonder if Professor Clément to send us some information on that.
The Chair: Could you send us some information on that? I think Senator Arnot is still waiting for an answer to his question, if you could maybe give us a written submission.
I want to take this opportunity to thank both witnesses for your presentations. Your help with our study is greatly appreciated.
Honourable senators, I shall now introduce our second panel. The witnesses have been asked to make an opening statement of seven minutes. We shall hear from the witnesses and then questions from the senators.
With us in person at the table, I wish to welcome from the Public Service Alliance of Canada, Chris Aylward, National President; Tasia Brown, Political Assistant to the National President; and Seema Lamba, Human Rights Officer. From the Association of Justice Counsel, we have David McNairn, President.
I now invite Mr. Aylward to make his presentation followed by Mr. McNairn.
Chris Aylward, National President, Public Service Alliance of Canada: Thank you for the invitation to be here today. I’m Chris Aylward and I’m the national president of the Public Service Alliance of Canada, also known as PSAC. PSAC is the largest public sector union in the country and we represent over 230,000 workers, including those employed at the Canadian Human Rights Commission.
It is no secret that Black and other equity-deserving federal public sector workers are facing racism and discrimination in their workplaces and communities. Our members have told us firsthand that systemic discrimination has existed in Canada’s public service for decades and they have been pushing back.
Our Black members have launched a class-action lawsuit against the federal public service, filed several grievances and have courageously spoken out publicly, telling their stories of microaggression, employee exclusion and discrimination in their workplaces. This has led to Black public sector workers suffering financial loss, racial trauma and being disproportionately absent from leadership roles.
Despite knowing this, it was alarming to hear that our members at the Canadian Human Rights Commission were also facing anti-Black racism, considering the commission’s mandate is to promote and protect human rights through a fair and effective complaint process. This is very telling.
Systemic discrimination runs so deep in Canada’s public service that it can be found in the very branch of the government responsible for fighting it.
In 2020, we filed a policy grievance on behalf of these members, along with two other bargaining agents: the Association of Justice Counsel, who are here today as well; and the Canadian Association of Professional Employees, or CAPE. I understand they are making a written submission to the commission as well.
In 2021, the three unions sent a letter to the Auditor General of Canada, highlighting our concerns that the commission was not adequately addressing the race-based complaints, was tokenizing equity-deserving workers and was not consulting with racialized staff on how to concretely address the systemic issues in their organization.
Although the Treasury Board of Canada Secretariat declared that the commission breached the no discrimination clause in our collective agreements, it failed to provide any proactive steps to meaningfully resolve the issue.
It is not enough to simply acknowledge racism. We must actively work to prevent it from happening again. There needs to be a transparent and accountable process in how the commission addresses internal allegations of racism or race-based complaints. Without this, our members — and the public — has lost faith in the commission’s leadership and the entire institution is weakened.
We are here today out of disappointment and frustration with the commission’s treatment of our members. We are not ignorant that unions have historically failed Black, Indigenous and racialized workers.
PSAC acknowledges that, as an organization, we have not been immune to systemic racism and colonial practices. We have fallen short of our members’ expectations and have not done enough to change the status quo.
Meaningful change means action, not just empty words. At the Public Service Alliance of Canada, we have recently developed an anti-racism action plan which is designed to address the ongoing legacy of colonialism, slavery and systemic racism. Our goal is to ensure that all members feel represented at every level of our union. We know there needs to be less leaders like me — a white, straight man — and more leaders who represent the diversity of our membership.
Our action plan was built on the input of our Indigenous, Black, Asian and other racialized members. PSAC has spent a year doing consultations through surveys, roundtables and holding panels across the country on the impacts of racism, both in our union and the workplace.
We also conducted research to examine the impact of the transatlantic slave trade on Black women in the federal public service in the Atlantic region. We heard from our Black members about trauma, battle fatigue and the demoralizing effects of workplace racism. We know that this is impacting their health, families, well-being and their work.
We also heard our members’ concerns about the inability of PSAC to represent, adequately, our racialized members. We are developing a trauma-informed, comprehensive workshop on advocacy and representation to equip union representatives on how to best advocate for members experiencing racism and discrimination.
PSAC is also supporting the Black class action. Our union makes up the largest portion of the lawsuit plaintiffs. Over 1,100 of the nearly 1,500 planned plaintiffs are PSAC members. Over 70% identify as Black women. We thank these members for coming forward. We will continue to provide financial, staff and resource support to ensure our members are made whole through this legal action.
I’m sharing the work that we are doing not to pat ourselves on the back, but to give examples of some of the work that all organizations in Canada should be doing to right historical wrongs. As a union, we understand we cannot ask the government, the commission or any other employer to do the work that we are not doing or prepared to do ourselves.
While listening to the lived experiences of our Black public service members, we heard the same issues being raised over and over again during our consultations: One, a chronic lack of career advancement opportunities, including training and development opportunities in their workplaces; two, a distrust in the employer’s ability to recognize and address systemic racism experienced in the workplace; three, fear of retaliation when bringing up issues of anti-Black racism, such as being labelled an angry, Black woman and being subjected to demeaning and humiliating behaviour; four, the devastating harm discrimination and racial trauma have on both the physical and mental health of Black workers.
Based on what we have heard from our members, these are the concrete actions that we believe need to be taken to address systemic issues of discrimination and anti-Black racism at the commission.
The commission’s leadership and senior management need to be held accountable for its actions or lack thereof. Without new leadership, the credibility and trust in the commission will continue to be lost. The commission needs an audit to ensure it is representative of Black employees at all levels, from the intake to investigators, to senior management and commissioners. They need to have equitable access to career and development opportunities and staffing processes.
There needs to be dedicated, culturally appropriate Black mental health supports in place for Black public service workers who have experienced anti-Black racism.
The human rights complaint process must be overhauled to become accessible, timely and effective. Complaints must be examined with a critical race theory lens by staff with expertise in anti-Black racism.
The Canadian Human Rights Act and other employment-related legislation needs to be amended to remove barriers in filing race-based and employment equity complaints.
We need an independent investigation into anti-Black racism at the commission with binding recommendations. The commission cannot be investigating itself.
Finally, there needs to be public, external oversight of the commission such as an independent, anti-Black racism commissioner.
I will conclude. We know that systemic racism and colonial structures cannot be dismantled overnight. While this is true, Black members should not and cannot be asked to wait any longer. They deserve actions now.
Thank you for your consideration and comments. I will answer any questions you may have. Thank you.
The Chair: Thank you. I will turn to David McNairn for his remarks.
David McNairn, President, Association of Justice Counsel: Thank you for the opportunity to appear today as a witness. I would like to acknowledge that we are on the unceded and stolen territory of the Algonquin Anishinaabe people.
My name is David McNairn. I am the President of the Association of Justice Counsel, also known as the AJC. The AJC was certified as a union in 2006 and represents 3,100 public sector lawyers, including those who work at the commission.
In October 2020, we were one of three bargaining agents who filed policy grievances on systemic anti-Black racism at the commission, for which Treasury Board found a violation of the no-discrimination clause in our collective agreement.
In earlier sittings, we heard compelling testimony from witnesses about the failure of unions and of the current federal labour relations framework to resolve systemic issues of anti‑Black racism in the public service.
Before embarking on such systemic issues and our recommendations for improvement, I want to first acknowledge and apologize on behalf of the AJC to our Black and racialized members for our past failures. We must do better.
In an effort to build trust with our Black and racialized members over the last three years, the AJC has committed significant resources toward addressing racism and discrimination in the workplace, and has taken concrete measures to re-earn the trust of our members. The details are in our written brief.
With the advancement of our policy grievance and my testimony today, we hope to send a clear message to our members that the AJC sees you, appreciates you and supports you.
We have three key recommendations, further detailed in our written brief.
I also intend to address some of the prior testimony by commission officials, where I can, on matters that I believe are of particular interest to this committee.
Our first recommendation is that there needs to be a swift and complete overhaul of the commission’s senior management. Our Black members and the Canadian public have lost confidence in the commission. Their trust cannot be re-earned while the senior leadership that contributed to, enabled and sought to conceal anti-Black racism at the commission remains at the helm. The response of the commission’s leadership has been actively harmful to our Black members.
Specifically, while publicly claiming acceptance of Treasury Board’s grievance decision, the commission’s senior leadership has actively downplayed and diminished the significance of this decision with its employees. For example, the interim chief commissioner has referred to the facts pled in the grievance as “unproven allegations.” And the director general and senior counsel emphasized that “no factual findings were made.”
This double messaging has been deeply harmful and retraumatizing to our Black members. The current senior leaders are incapable of leading the fundamental reforms necessary.
I listened attentively to the commission’s witnesses, and here is why their testimony and the facts as we understand them further support our calls for a leadership change.
First and foremost, management is responsible for the processes and systems that saw our Black members retraumatized during an ill-advised investigation process, a workplace review which deliberately included no written report, and the CHRC’s Anti-Racism Action Plan development process.
Let’s start with the investigation process. Commission officials were asked about the investigation process conducted by Ms. Fernandez and its outcomes. What the commission failed to mention during its response was the actual investigation process itself and how all three bargaining agents raised serious concerns with senior leadership, including Mr. Ian Fine, about the integrity of the process, the need for expertise on anti-Black racism, the lack of trust and the risk of retraumatization of witnesses, including affected members. The commission’s failure to adequately address these concerns resulted in many individuals consciously choosing not to participate in the investigation.
This approach eventually led to calls by unions in 2020 for a formal, independent workplace assessment. The commission rejected these calls. Instead, the commission went ahead with a unilateral watered-down process called a workplace review. While the selection of Ms. Arlene Huggins to conduct the review was strongly supported, the scope of the work which intentionally excluded any written report was not. Only oral reports were offered to senior management with no paper trail as an obvious measure against access-to-information requests. This approach dampened our members’ voices further, denied their truth and was yet a further sign of a systemic management-endorsed approach which lacked transparency and accountability.
This then brings us to the problems relating to the development of the Anti-Racism Action Plan and the lack of outreach to Black members. The commission leadership did not reach out to our Black members to secure or solicit their direct participation in the development of the commission’s Anti‑Racism Action Plan. When one Black member asked management if they could support the development of the plan, they were denied. On sharing the draft plan, it was circulated to all 200 employees, at almost the same time as its posting on the commission’s website. One Black member reported offering input only to find that none of their substantive concerns were addressed. Our Black members deserve to be engaged, consulted and listened to in a meaningful way, but that didn’t happen.
I would also like to address Mr. Fine’s troubling response to the question by Senator Bernard, suggesting that one of the alleged perpetrators was actually in charge of developing the action plan.
It should be unthinkable that the commission, Canada’s human rights watchdog, could fail Black employees and Black Canadians in such a profound way. It is unthinkable to me that any senior manager could categorically deny the possibility that untoward conduct may have occurred without the benefit of a thorough and proper investigation into the allegations. This pattern of jumping to the defence of commission managers at the expense of our Black members and their truth is hurtful, retraumatizing and further evidence of the need for change. The commission continues to ignore the voices of our Black members and those who have testified before this standing committee.
In the interests of staying on time, I’ll summarize our final two key recommendations quickly and refer you to our written brief for details. I would be happy to elaborate on any questions during the question period.
Our second recommendation is that the commission must be subject to independent, external oversight including by the Office of the Auditor General of Canada, the Public Service Commission of Canada and a properly resourced Black equity commissioner.
Our third recommendation is that fundamental reforms to the federal labour relations scheme are necessary to break the cycle of systemic racism in the public service.
In closing, I would like to take this opportunity to formally recognize the strength, courage and leadership of the nine commission employees and other witnesses who assumed a great deal of risk in coming forward, as well as the exceptional work by Patricia Harewood, formerly of the PSAC, who helped lead the three bargaining agents in obtaining the important grievance decision that brought us here today. Thank you.
The Chair: Thank you both for your presentations. We will now turn to the senators for questions and answers. Senators, I want to remind you that we have five minutes for questions and answers, and I can always put you on second round. We start with the deputy chair, Senator Bernard, to be followed by Senator Jaffer.
Senator Bernard: To be totally honest, I’m still processing your testimony. It’s a little overwhelming to hear you speak such profound truth on behalf of so many Black Canadians who have put their trust in these systems. So I thank you. I thank you.
I think you have both talked about the need to have specific measures in place to rebuild trust, and I think we have heard repeatedly from some of our witnesses that rebuilding trust is going to be very challenging. Based on the work that you have done with members of your respective unions, are there specific suggestions for the rebuilding of trust? Not just the rebuilding of trust specifically with the Canadian Human Rights Commission, but also with all of the unions, because we have heard from people as well that the anti-Black racism that we’re talking about is not just an issue with the human rights commission, but it cuts across all federal departments.
So given that reality, what’s a path forward to rebuilding trust?
Mr. Aylward: Thank you, senator, for the question. Certainly, it has to start at the top. That’s where we believe it has to start. There has to be, certainly, a review of the leadership at the commission. But there also has to be a review as well of every part of the commission, because we do not see the commission today being reflective of the diversity of Canada. When you look at even the commissioner level, it is simply not representative of Black people in Canada. And I think that’s the essence of making change and building or starting to rebuild that trust.
Seema Lamba, Human Rights Officer, Public Service Alliance of Canada: I think because we have heard it — the reference to our own Anti-Racism Action Plan was said, and one of the things in rebuilding the trust, when it comes to issues of representation, because that’s what we’re really here about when members are making allegations of anti-Black racism. So one of the steps we have done is developed training for union representatives on how to deal with workplace racism. That was one of the things that we were hearing that our union representatives didn’t have the tools to be able to deal with those issues. So that’s an important step. That’s one of the key things. That is, when it impacts members in their workplace who are experiencing workplace racism, they can go to their union and get access for help, whether it’s with the grievance process or a different process, on anti-Black racism. I just wanted to note that.
Senator Bernard: From the previous panel, we heard that change should come from within the commission and that we shouldn’t be starting from scratch. There is an expectation or a hope, if you will, that change could happen from within through education. We would welcome your opinions on that.
Mr. McNairn: I’ll speak to that. I’ll speak to the sort of two pieces of the question that you raised previously, senator.
When it comes to the commission, our view is that it’s a toxic workplace. Our view — and I take no pleasure in saying this — is that if you’re going to change the culture, you have to change the people at the top. That seems trite, but there is truth in that. If you want to change the culture, you have to change the people.
We have suggested a number of recommendations. I referred to two or three key ones from our perspective. First, independent external oversight. The commission can’t be its own watchdog. They wouldn’t allow that of anybody else. They can’t be allowed to do that themselves. They can’t be their own watchdog. There has to be that independent external review to hold them to account for change.
There must be changes to the federal labour relations system as well. We have detailed a lot of that in our brief, namely, changes that can be made to allow unions to provide them with some tools to hold the federal public service accountable for racism and systemic discrimination. There need to be some changes there as well.
In terms of what unions can do, I can only speak to my own union. I made the promotion of equity, diversity and inclusion a priority when I became president three years ago. We created an equity, diversity and inclusion advisory group to provide us with the advice that we needed to make the changes. We also created a position of a full-time special advisor to the president who has a strong mandate relating to equity, diversity and inclusion.
The way I look at it, we are at the beginning of the process. We’re obviously not at the end of the process. We have a ways to go. We don’t have the equity and diversity in our union that we would like to have. We need to work on that so that, over time, we can be representative of the people that we represent. That is our task ahead.
The Chair: Thank you.
Senator Jaffer: Thank you very much for you being here. It has been refreshing to hear what you have had to say. I also follow Senator Bernard, but I had a little more time to digest what you said. It was refreshing to hear from you. I also have to acknowledge that Ms. Lamba has been in front of us many times. It is a pleasure to welcome you here again.
You were going to do this, and you’re doing it. You acknowledge the problem and you spoke about it, which I very much appreciated. In your processes, in your study, how many racialized people, how many Black people do you have, or is it top-down? I’m going to ask both Mr. Aylward and Mr. McNairn.
Mr. Aylward: With respect to our own organizations?
Senator Jaffer: Yes.
Mr. Aylward: I think we both recognized that we need more changes, even within our own organizations, to be more reflective of our respective memberships. A lot of unions are struggling with that. Certainly, that’s something that PSCC has recognized. We need more of a diverse leadership within our own union.
Senator Jaffer: What’s holding you up?
Mr. Aylward: Nothing. It just needs to be done.
Senator Jaffer: I appreciate your honesty, you know. When I was a young lawyer — it’s 100 years ago now — I used to get this thing, “Well there just aren’t enough. There just aren’t enough for us to pick up.” Now, depending on what statistics you look at, at least 30% of Canadians are racialized, or Black, or Indigenous. Yet, they are still not ready or we have to do a merit-based sector. With all due respect, there comes a time when we have to look deeper.
What are you doing as an organization to protect your members? We are studying the issue here of Black Canadians who are new members and who are suffering this discrimination. Are you giving them assistance to empower them? I’m sure you are hearing them so I don’t need to say that to you. What else are you doing to make them whole as a union? I’m going to ask you that, Mr. Aylward.
Mr. Aylward: Thank you for the question, senator. In respect to ensuring that our union can effectively, number one, recognize racism in the workplace, and racism and discrimination; and, secondly, how to deal effectively with that, we just started an advocacy program to make sure that our representatives in the workplace on the shop floor have the tools and the resources to be able to identify racism and discrimination in the workplace and have the tools and resources to make sure that they can properly, adequately and effectively represent the members in the workplace. That’s something that our union simply hasn’t done.
Senator Jaffer: What is the deadline to get that done?
Mr. Aylward: Basically, it’s as soon as possible to make sure that we get that rolled out. As I said, we recognize that it’s a downfall within our own union.
Senator Jaffer: All the things that you said warmed my heart, both of you. But you still say, “We know. We are making some —.” Everybody knows what racism is. When your colleague is being treated badly, everybody knows it. They may ignore it or say there is something wrong with them, or they are complaining too much, but if you’re still teaching them, I have worries that your union is still recognizing it. You recognize it, but you are still saying you’re teaching people. That worries me. I don’t need an answer from you. I just put that to you.
Mr. McNairn, I am impressed by both your presentations, but a few years ago we did this for the justice section. Many people that are working there are saying to me now, “We are already where we started.” It’s almost like we need the Human Rights Committee to look at this. May I ask that you speak to your members, especially racialized and Black members, to see what is going on for the people that you work with?
Senator Pate: Thank you to all the witnesses for being here. One of the things that struck me as you were presenting is that the demoralizing environment that we have heard about in the Canadian Human Rights Commission exists throughout the public sector in my humble opinion. In an area that I worked in a lot, I saw the failure of justice lawyers. For instance, to be able to articulate a section 15 analysis or a human rights analysis was partly rooted in an approach that was taken more broadly.
I would be interested in a general comment. It’s one thing to say you’re going to shift how you treat people, but it’s also part of how you actually see the world that ultimately changes that direction, in my opinion.
One of the things that struck me in testimony — and I’m subbing for Senator Omidvar, I want to be clear — human rights and constitutional lawyer Hugh Scher talked about the fact that one of the challenges and fears is that the focus on this process and the Treasury Board focus on looking at discrimination in the Canadian Human Rights Commission may be a strategy to draw attention away from the lawsuit that Black public servants have raised. This question is probably more for Mr. McNairn. How would you respond to that? How would the government respond to this? It’s certainly not alien to me, if I can put it that way, that when we have been working on a human rights complaint in other sectors that it becomes a reason not to proceed with the lawsuit because it’s presumed you need to pick one form or the other. I’m just curious as to your response to that. If you have any comments as well, Mr. Aylward, I would be happy to hear those.
Mr. McNairn: Let’s be clear, I don’t speak for the Government of Canada. I only speak for the AJC. In terms of the process, nothing suggests to me that the individual who heard the grievance was not complying with the law and dealing with the process as she saw fit. However, our experience was that there were points in time during the process where there seemed to be a lot of pressure to move to mediation and to try to resolve this without proceeding to a decision. It’s pressure that all three bargaining agents resisted, we proceeded to the decision and we have that decision, which is what brings us here today.
Senator Pate: My comments on the issue in terms of Charter and human rights views writ large during — I recognize you’re not speaking for the Department of Justice, but I’ve been at sessions with lawyers within Justice, and some of that strategizing certainly seems to be part of the environment, if I can put it that way, within the department.
Mr. McNairn: Lawyers think like lawyers, and they look at the law. They look at the case law, and that’s how they frame and analyze things. I’m not sure I can cast much light on the question you’re asking.
Senator Pate: Okay.
The Chair: Thank you.
Senator Arnot: Thank you, witnesses. Mr. Aylward, you have noted that this issue of anti-Black racism is deeply seated in Canadian society. You acknowledge that it’s a systemic problem requiring a systemic solution.
Do you believe that this issue, while very acute in the Canadian Human Rights Commission, is actually an issue throughout the whole of government? I’m wondering, sir, in your role as the president of the Public Service Alliance of Canada, you have significant influence in Canadian society, and certainly with policymakers. I am wondering how you see your role or the role of future presidents in addressing this on an across government or Canadian whole-of-society issue.
Mr. Aylward: Thank you, senator. I would absolutely agree that it is deeply rooted right across the federal public service. When the very branch of the government that is responsible to present, promote and educate around human rights fails, then it’s obviously the entire public service. That’s been clearly demonstrated year after year after year through public service employees surveys as well. Every year, it’s the number one issue — racism and discrimination in the workplace. It’s always identified as one of the very top issues. Yes, I would definitely agree that, unfortunately, racism and discrimination are rooted right across the entire federal public service.
In respect to what we can do going forward to make sure that it is being properly addressed, we have had, on occasion, consultation processes with the commission and made submissions to the commission. We will continue to do that as to how to better the system for everyone, but especially around racism and discrimination issues.
Ms. Lamba: There are also forums like joint employment equity committees. We bring those forward all the time in those places where we can, as bargaining agents, influence those places in different departments or at a national level. We are constantly putting this message out. Where we can, as bargaining agents. We have been doing it for a very long time on this issue. I just wanted to note that there are places that we can play a role.
Senator Arnot: Mr. McNairn, you mentioned that there was an oral report given to avoid access to information. Is that something that you’re seeing more of? Is that just a one-off instance? What conclusions did you draw from that? What conclusions should we draw from that about the ethos inside the Canadian Human Rights Commission?
Mr. McNairn: It struck me as very strange and unusual that public resources would be used to engage someone to perform this service and no written report was provided, only an oral report. It does seriously beg the question about the intention surrounding not asking for a written report.
A written report would be subject to access-to-information requests. It would be memorialized. The oral report could not be taken and massaged by the management of the commission, it would just be the blunt report of the investigator.
To go back to your point, I found it really unusual. I had never heard of this before. Where someone had been engaged to perform a service and didn’t have a deliverable such as a written report.
The Chair: Thank you.
Senator Hartling: Thank you, witnesses, for being here. I must say it has been riveting. It’s caused me some anxiety to realize that this is a deeper problem than perhaps we realized when we started our study. But it’s good that it’s revealed. Once you have knowledge, you have to do something with it.
Mr. McNairn, in your submission to the committee, you indicated that in August 2020, the bargaining agents, including the AJC, PSAC and CAPE, requested, on behalf of affected members, a full external workplace assessment. The commissioner decided to engage and facilitate the discussions with employees instead, engaging third parties that the employees had no say or trust in. What do you believe a full external workplace assessment would have revealed about the culture of the CHRC and about the experiences of the affected employees?
Mr. McNairn: We don’t know for sure, but my suspicion is it wouldn’t be very good. A formal independent workplace assessment would have drilled down into the problems at the commission, employed best practices for conducting such a review and, I believe, have produced a written report that would be there for everyone to review and likely provide a clear plan for a way ahead to solve the issues in the workplace.
Senator Hartling: Now we’re at a place where we don’t have that. Is there a way we can go back? Is there something we can do about that?
Mr. McNairn: That type of investigation could be done again today. Strangely enough, two years ago, this is what we suggested to the commission should be done, and the commission rejected it at that time. It has only recently had a realization that maybe that wasn’t such a bad idea after all. It does beg the question of why they would have rejected that two years ago, and now today, when they are appearing before this committee to be held to account, they have suddenly had a moment and now they want the formal independent workplace assessment.
Senator Hartling: Thank you.
[Translation]
Senator Gerba: My question is for Mr. Aylward.
You humbly acknowledged that your union, PSAC, failed in its duty to represent its members. That’s the reality. A number of the witnesses we’ve heard from hold that view.
Nevertheless, you said you had implemented a series of measures to better protect your Black members. Describe for us the tangible measures you are taking to better advocate for members of the Black community, given the systemic racism in the public service.
[English]
Mr. Aylward: Thank you for the question, senator. Certainly, as noted in the presentation, we have started an anti-Black racism action plan for our members. As well, we have taken a number of steps internally because we rely heavily on our staff as well to provide advice, direction and representation. We have just created within the PSAC, an oppression prevention and human rights bureau that will be staffed and resourced properly so that our staff can also have the resources and the tools necessary, obviously, for themselves but also to provide that advice and direction to the representatives in the workplace.
[Translation]
Senator Gerba: All right. Thank you very much.
You also said that many members at the commission had experienced significant trauma. How do you support those people?
[English]
Mr. Aylward: I am going to ask Ms. Lamba because she understands that better than I do as far as what our members at the Canadian Human Rights Commission have gone through and suffered.
Senator Gerba: How do you support them?
Ms. Lamba: How do we support the members at the commission?
Senator Gerba: Who had trauma.
Ms. Lamba: I will ask Ms. Brown to answer that.
Tasia Brown, Political Assistant to the National President, Public Service Alliance of Canada: What we have done — not only with our members at the Human Rights Commission, but all of our members across our membership — is part of what Senator Jaffer spoke to: How do we make our members whole? Part of that process is, first, simply listen to them, so we have been doing in-depth interviews with a number of them. We have done so on the basis of how do we represent them better. How can we argue that we can better represent our members if we haven’t heard the specific problems and the barriers they are running into whenever they try to raise issues of racism within the workplace?
We have started with that process. That is part of our anti‑racism action plan that we have been doing. That’s where we have led into realizing the importance of having an advocacy workshop for more of our stewards and folks in our locals who are able to reach those members.
At the same time, we are trying to show our members that we are there to support them when they have gone through that process. We have been doing an outreach program. We have been specifically doing something as simple as grassroots outreach by calling each one of our Black members and speaking with them, talking to them about what they have experienced and what supports they need. Do they have a grievance that is outstanding, that hasn’t been resolved? Can we, therefore, escalate to take care of those needs? That is where we’re starting.
Then, of course, as a union, bargaining is one of the strongest tools we have. As you have seen, we have recently been through bargaining at the federal public sector level across our Treasury Board and the CRA. We bargain for more things we put into the collective agreements for our members so that they have these tools and access to things that may not have existed before, where they can feel more supported in their workplaces.
For example, we have negotiated for our Indigenous members access to leave so they can take part in cultural practices. We’re asking for a review of the anti-racism and harassment programs and the education available to our members, making sure it is more widely available and taken up. It’s one thing to have education, but it’s another thing if folks are not actually accessing it.
Those are some of the ways we have been trying to hear from our members, make them feel supported, reach out and find out exactly what they need from their union.
Senator Gerba: Thank you.
The Chair: Thank you. Our previous witness spoke about the need for education for the CHRC to strengthen their education mandate to change the culture of the institution. Both of you have been brutally honest, and we appreciate that. When you spoke, we were just taking it all in.
Mr. Aylward, you said, “as a White, straight man.” What have you done as White men in getting rid of your unconscious bias and to represent the change that you want to see?
I’m hoping that maybe somebody at the Canadian Human Rights Commission is watching the leadership and the education and maybe they can learn from you.
Mr. Aylward: I’ll address the education portion first because I also believe it is critical within the commission to have the proper training. But going along with that, and as much as I say that, the commission is severely underfunded and under‑resourced. Until it’s properly funded and resourced, I’m sorry, but we’re going to continue to see these issues. As a previous witness had identified, there was training in the commission as a budget at one point. There are no more resources for training, and as I said, I think that is critical for going forward for the commission. But you can’t have the proper training if you don’t have the proper funding and the proper resources.
As for me personally, it’s education. It is taking courses. It is learning all of those biases that I do have, and until you learn that, you basically think you are going along and everything is okay. You don’t recognize your own biases as well until you take some education and training. Again, that is vitally important.
We’re always trying to support and do whatever we can, especially around the Black class action. Our support for the Black class action is both, as I said, resource-wise and financial.
Those are just some of the things we’re trying to do within our own organization to make sure we uproot racism and discrimination. We do everything we can to uproot, identify and eradicate it as quickly and effectively as possible.
Mr. McNairn: I think education is key as well. I agree with Chris on that.
That being said, one would think that the commission, being subject matter experts on human rights, would need a lot less education than everybody else. Education is great in conjunction with other steps that are going to result in the change of the culture at the commission.
As for me, personally, again, it has been education, taking training such as anti-racism, anti-oppression, unconscious bias and whatever other training I can take.
I can tell you, as a White guy who is in the latter part of his career, there are many days when I feel completely inadequate when it comes to tackling these issues. Our union has our equity, diversity and inclusion advisory committee with racialized members on it who provide us with advice. That’s an education piece for that, for us.
My own personal priority as president was to promote EDI. We ensured that we created a new position of special advisory to the president, which has a very strong EDI mandate.
Unions are always looking for novel ways to try to represent our members and promote their interests. This grievance was a novel way of supporting our members — three unions coming together, cooperating and all filing policy grievances that advanced similar arguments. As you can see, it’s resulted in this decision. That was a big impetus, I would expect, to this committee engaging in the study that you are doing today.
The Chair: Even as a layperson, if somebody tells me you are going to be working at the Canadian Human Rights Commission, I immediately know what they are talking about. Yet, we’re talking about change of culture.
Consistently, the top brass heard of issues and problems that they were not willing to address. I don’t know if you saw the testimony when they came before us. Senator Bernard asked Mr. Fine if he was going to resign and the answer was, no.
Obviously, if you are hearing complaints, you know there is something wrong. Education, training, you can always get people into the room one afternoon and say, “We are going to be looking.” I know when I have problems in the office, we say, “Let’s see how we solve this problem.” If you have something that’s been brewing over the years and you are not willing to admit that there is a problem there, you have obviously outlived your use.
I’m sorry, was I blunt? Okay.
Mr. McNairn: You wouldn’t get any disagreement from me on that, senator.
We use the term “performative,” the response being performative. Let’s face it, that’s a polite way of saying your response has not been genuine. You are going through the motions. You just want to do what you need to do to have the problem go away.
The Chair: On second round, we have ten minutes. Please be brief with your questions and answers.
Senator Bernard: There are so many Black Canadians who work in the public sector who go to work every day in golden handcuffs, because there are so grateful to have a job.
In many communities with high unemployment, a job with the federal public service is seen as a “good job.” People stay and they deal with racism. They deal with the anti-Black racism. They deal with the performative allyship. They put up with a lot of microaggressions in the workplace, because the alternative is not an alternative they want to think about. For many people, they stay in those golden handcuffs until they can’t be there anymore.
We have heard many people talk about facing concrete ceilings. We used to talk about the glass ceiling. We recognize that for Black people, there is no glass ceiling. We broke through the glass and guess what? There is concrete.
Given those realities, I’m wondering what the link is with the employment equity legislation that was supposed to remove barriers and create conditions for all of those equity-deserving groups to not only survive but thrive in the workplace.
We have people who are dying a little bit every single day because of the racism that they are enduring. What is the link with employment equity legislation?
Mr. McNairn: If you are going to address racism and discrimination in employment practices, you need to have the legal tools.
I’ll give you one example: Staffing complaints. The legislation only allows staffing complaints that fall within certain, very limited categories. There have been recent changes. Generally speaking, complaints are made and they are dismissed.
It’s pretty fair for me to say that most public servants would view the staffing complaint process as being completely ineffective, really not worth their time, because it’s not going to result in any positive result or change.
There were other examples in the labour relations system. The Federal Public Sector Labour Relations Act doesn’t allow certain issues to be collectively bargained, so they can’t be addressed in collective bargaining. They are addressed in the statute. They can’t be addressed in collective bargaining.
Much of this comes down to creating the tools and processes that allow you to address racism and discrimination, whether it’s systemic or otherwise.
Mr. Aylward: Ms. Lamba was involved directly with the Employment Equity Act. I would ask Seema to respond.
Ms. Lamba: We have details about what needs to change in the Employment Equity Act as it correlates to what we provided to the Employment Equity Act Review Task Force, which we’re happy to share if wanted.
In a nutshell, because I know time is of the essence, there isn’t necessarily a strong oversight. The Treasury Board of Canada is an employer, and so is the Public Service Commission. They are limited. There is no oversight over the departments anymore since departments started doing their own things.
As well, the Public Service Employment Act, or PSEA, which is related around the staffing process, supercedes the Employment Equity Act. If there are initiatives under the Employment Equity Act, it is sometimes looked at in light of the PSEA, so we can’t make that progress. As I said, this is all outlined in there.
As well, the Canadian Human Rights Commission itself is the auditor. It’s supposed to be doing the audit function for employment equity for the public sector. There is some work to be done there too. We were talking about the commission. They are supposed to be auditing departments on that.
There are a lot of systemic barriers. Even though we have employment equity legislation, there are systemic barriers to pushing forward the employment equity objectives and goals.
The last thing I want to say is, as bargaining agents, we have roles in the Employment Equity Act, but we have limited roles. Sometimes it’s dependent on the goodwill of the employer, whether they have employment equity committees or what information we share or they share with us.
There are many limitations but, again, happy to share the task force submissions on that.
Senator Bernard: That would be appreciated.
I have a follow-up on your last answer around training. There has been a lot of discussion on previous panels as well around education and training.
I don’t know if this is the case with the Canadian Human Rights Commission or in the PSC, but in many organizations, if there is a racialized staff member — I have seen this happen; in fact, it’s happened to me — the Black person on the team is asked to volunteer to provide this training. We go and do the training. We bear our souls in the training, for free, by the way. It’s abuse of the labour and of the expertise without recognition.
Has that happened within the commission? Is that one of the issues we’re seeing with the Canadian Human Rights Commission? Has it happened with your unions? Is there an expectation that the members — again, going in golden handcuffs — are doing this training because they think ultimately it’s going to make a difference, or they hope it’s going to make a difference?
Ms. Brown: What we have within our organization is, of course, folks who are specialists in human rights, training and so forth. That’s something that is always conscious of, the fact that you want to ensure that, as a Black person, you are not always the one having to do the work to teach others and to bear that burden.
At the same time, we have also been conscious as an organization to ensure that there are specialists in anti-Black racism. There are specialists with lived experiences.
As an organization, we have worked hard to make that we have certain people in place to do that work. We have heard directly from our members as well that they feel they often have to be the ones to speak to these issues or they have to be the ones to raise these issues, and it’s a burden to them. They are already feeling traumatized and pain, and then they have to be the ones to bear the burden of raising it. It’s a challenge and it’s something that we are aware of as a union and are working toward.
Senator Bernard: Are they asked to voluntarily do the training as well?
Ms. Brown: No, not within our union.
Senator Bernard: Not within yours, but within others.
Ms. Brown: From others, yes, absolutely. We have heard directly from our members that they are often feel they are put in an awkward position where they have to teach their own oppressor. We have heard that directly from the members. We are doing what we can to support them and make them feel that they have a union to turn to when they are put in those positions and they feel they have recourse when they are asked to do these things that are often retraumatizing them.
[Translation]
Senator Gerba: My question is for all the witnesses. The committee has heard from witnesses that employees at the commission were treated differently than their non-racialized counterparts. They told us about cases of Black employees not being promoted when they should have been or being asked to perform work below their skill level. What’s more, witnesses reported that Black staff were taken off racism-based complaints. Are you aware of that?
Mr. Aylward, it’s a fact that Black people are not promoted to senior positions. What are you going to do to achieve some transparency and ensure that Black employees are appointed to decision-making positions?
[English]
Mr. Aylward: Thank you for the question. Making sure that those employees are being heard, I think, is number one. When I talk about the commission being overhauled, certainly the leadership have to be held accountable for this. The Black employees who are there, seeing and suffering through this, are at a loss as to how to move forward.
I believe it was Senator Bernard who said that when you look at federal public sector workers, for the most part, they are very proud of the work that they do. When you have a Black employee at the commission that’s responsible to basically uproot, protect and provide for a proper workplace free of racism and discrimination, then our members or the employees that are working there wonder, how do we move forward? How do we move forward as an organization?
I’m not sure if that answers your question or not, but that’s how I see it. As far as the employees of the commission, they have to be involved in any kind of a change or remodeling of the commission. They have to be involved and they have to be listened to as to the best way to move forward as an organization.
[Translation]
Senator Gerba: Is there some sort of recruitment process that would provide the necessary transparency and help restore confidence in the commission?
[English]
Mr. Aylward: No, it’s not. We have heard it from our own members at the commission. Employment barriers put up all the time. They don’t have the same access to promotions as other employees, and that has become very prevalent not only at the commission, but in the federal public service overall as well. We hear it from our Black, Indigenous and racialized members that they face serious employment barriers.
As part of the Black Class Action lawsuit, one of the plaintiffs has 28 years with the RCMP. After 28 years, she retired in the position that she started in. That should never, ever happen in the federal public service, but it is because there are systemic issues with the staffing programs and with the staffing policies, especially when it comes to advancements and promotions. For Black, racialized and Indigenous employees, it’s a real barrier. We have heard people say, “get over it.” It is a real barrier in the federal public service for Indigenous, racialized and Black employees for advancement.
When you look within the federal public service, in the leadership roles, how many Black, racialized or Indigenous people do you see in leadership roles at the top of the government? Just as I compared my own union, it is seriously lacking. The reason why it is lacking at the most senior levels is because there are systemic barriers down here at the very bottom of the staffing process. When an employee starts in an entry‑level position, and 28 years later leaves that same position, there is something wrong with our staffing policies.
The Chair: Thank you.
Senator Jaffer: There is so much I could say about what you said last, but I just have a few seconds. Senator Bernard always speaks about education, and I completely agree. There was a lot of, yes, education, but you earlier said there are not the resources for education. It’s a vicious circle. We can have a recommendation that you have to have more education, but there are no resources, so we’re still in the same bind. Isn’t that correct?
Mr. Aylward: Absolutely.
Senator Jaffer: Yes.
Mr. Aylward: Yes. And until proper funding and proper resources are dedicated to the commission, we might be back here six years from now discussing the same issue.
Senator Jaffer: Is part of the problem that you don’t see people — I’ll talk about the bar, but before I do that, the Canada Revenue Agency, the CRA, has serious problems with its employees being promoted. Maybe you want to look at that. Since we started this study, I have had so many from CRA contact me and say that CRA is the worst. I recommend you to look at that.
People say, “We can’t find them,” but as a young lawyer, when I went into the job, if I stayed there, I would never rise because there are no opportunities. It has to be a continuous process that your boss has to give you the opportunity to make mistakes and learn. But if you are stuck there, then there is nothing at the top to select from. It’s a vicious circle again, isn’t it?
Mr. Aylward: Absolutely.
Senator Jaffer: Thank you, chair.
The Chair: Thank you to all our witnesses. We really appreciate you agreeing to appear before us, and your testimony will help us with writing the report.
Honourable senators, I will now introduce our third panel of the day. The witness has been asked to make an opening statement of five minutes. We shall hear from the witness and then turn to questions from the senators.
With us in person, I wish to welcome our colleague, the Honourable Senator Ian Shugart, P.C., former clerk of the Privy Council. I now invite Senator Shugart to make his presentation.
[Translation]
Hon. Ian Shugart, P.C., as an individual: I am honoured and pleased to be here this evening to participate in the committee’s study. I’d like to share some retrospect as it relates to certain aspects of your study.
[English]
I am told that the clerk’s Call to Action on Anti-Racism, Equity, and Inclusion in the Federal Public Service has been raised before the committee. It’s that topic that I thought I would address this evening. That is, how it came about, what it has meant and what this kind of initiative can mean, but I leave it up to colleagues to take the question wherever you like to take it.
It was issued in January 2021. It was very much a personal exercise for me. Many people were involved. Of course, it was issued to the public service as a whole. For me, it was a very personal undertaking. In part, it was because of the impact of the previous summer of the horror of the George Floyd episode, and the stories that this unleashed of the treatment of Black, Indigenous and racialized Canadians in our own society. This was not just something that happened and happened far away, but we have our own issues of racism to deal with. In the institution of the public service, we needed to address the reality that this racism was systemic.
For me, it involved engagement in a very personal way. It involved a lot of listening to people as they told their own stories — Black employees, Indigenous employees, other racialized Canadians, fellow citizens, working for the taxpayer who had painful stories to share. It involved a lot of listening to them, and being myself, as the clerk of the Privy Council educated — not just in theory but in practice about what that meant for my fellow public servants.
We then looked at the data. I was sitting in the room, and I heard your previous witnesses talking about the example of someone who has been in the same position in the public service, not just year after year, but for decades without any movement. When you look at the data and you see that and you see the rates of promotion, advancement, and so on, at one point, you realize that yes, this is systemic. This is a deep-seated problem.
Racism is subtle. It may not involve overt hatred in the heart, but it can still be there. People don’t like to admit or conceive of their organization being systemically racist, but we had to come to the point in this exercise that led to the call for action that this was systemic. When we look at the data, there is no other conclusion but that it is the system that is creating the circumstances that are holding people back. It is unfairly and unjustly targeted at certain of our fellow citizens.
We had to come to terms with what “systemic” meant and call for action that would address that reality. It meant taking more forceful action. Otherwise, things would not happen on their own. With respect, I don’t quite agree with the statement that more education will do it. I don’t quite agree with the statement that until we have more resources, we won’t have education and until we have more resources, we won’t be able to solve the problem.
I didn’t wait to see what the resources would be. I didn’t ask for more resources to accompany the call for action. I just called for action. I knew that enough of my deputy minister colleagues were with me, that they agreed and that they were at the place of being ready to take action. It was issued to all public servants at all levels in whatever degree of leadership responsibility they possessed.
I think it was well received. I think it has had an impact. The staff of the committee can go to the submissions of deputy ministers to the clerk for reports on that action.
It was essential that action be measured because if you don’t have measurement, you don’t have accountability. There is no question that having to report back does motivate leaders in organizations. There is no question about that.
Even if it isn’t everything we would like it to be, as long as there is forward movement, there is some basis for encouragement. I believe that that is what we have seen.
The current clerk carried the work forward and made a keynote speech at the government conference on diversity, equity and inclusion most recently in October 2022. It’s a forceful speech, and it outlines the kind of thing that we continue to need to do. She has established a lot of forward momentum on this.
So I think we can be encouraged by what is happening, but we cannot be complacent about what is happening. But those elements of listening and identifying as much as possible, being determined and exercising leadership and seeing that part of leadership is to make this happen, was essential to the call for action and everything that has happened since.
I’ll stop there and to the best of my ability comment further from your questions.
The Chair: Thank you, colleague. I think I agree with you when you say education and extra resources are not going to change that, because when you are in leadership roles, you should be knowing right from wrong, and you should be knowing what behaviour is acceptable and what is not.
I’ll start with Senator Bernard, the deputy chair. Senators, we literally have three minutes for questions and answers so can we please be brief. I hate to interrupt my colleagues or witnesses but this time, I will have to if necessary. Thank you.
Senator Bernard: Thank you, senator, for being with us this evening. Thank you for your leadership. Thank you for your call to action but also the deep commitment and dedication to it.
I would like to invite you to say a bit more about your disagreement around the recommendations we have been hearing about education, and also the positions that we have been hearing around the lack of resources. Sometimes people think, okay, if we just get more money, things will get better; if we just put more training in place, it will make a difference. You’re disagreeing with that. I’m asking you to tell us more about why you disagree with that and if there are alternative suggestions that you have.
Senator Shugart: I’m certainly not saying that resources to help us understand, put in place better systems and pursue disaggregated data — which is also happening, by the way — wouldn’t be helpful. Education is absolutely a fundamental part of what we need to do. But I don’t accept it as an excuse in the event that there isn’t action.
I’ll give you an example. We did not have, in my opinion, enough senior leaders who are Black or persons of colour or Indigenous. You look at the list now and it is different. In my judgment, it is going to continue to be different in the days and years ahead. But that took decisions, not just education. It took decisions.
I remember sitting down with somebody — I won’t name the individual. I won’t give any hints. But the information I had about this colleague was, “not quite ready.” I sat down with this person for over an hour, and we talked in my office. I said, “Would you like to be a deputy minister? Do you think you could be a deputy minister? What does leadership mean to you? Tell me about your family.” All sorts of things. We talked for over an hour. At the end of that time, I saw no reason that this person could not be a deputy minister, or associate deputy minister, which is sort of the training wheels of deputy ministers.
We appointed this person. This person has done a fine job. But too often, “not ready” is an unconscious excuse or substitute for “not like us.” That isn’t good enough. Education isn’t going to fix that. Determination and maybe a little bit of pressure from above, and time spent listening is the antidote.
Senator Jaffer: I concur with what Senator Bernard said so I will just ask my question. Besides “not being ready,” the other is “can’t find them.” We are keen but we can’t find them. How do you deal with that? You know, there just aren’t. We would like to promote, but we can’t find them.
Senator Shugart: They are right there.
Senator Jaffer: How do you encourage —
Senator Shugart: They are right there in front of us. The data shows that they are there. There may not be enough, so we have to recruit externally as well. We may need help in that. None of this is going to be overnight. This is sometimes going to take longer than we would like. But we can make progress.
We know that if we put in place the supports for people to grow in their leadership, and to adapt to systems and the kinds of things they are going to have to navigate, mentorship and courses and that kind of thing, they are there.
Senator Jaffer: I don’t know — Human Rights Committee chairing for a very long time, and every report when we looked at the federal service would be deputy ministers do have to become more — et cetera, I’m not going to take the time to say it. And no result. We even said that pay of deputy ministers should be based on what they did with equity promotions.
What did you do to make it happen this time?
Senator Shugart: Well, we required reporting and we have published the results of what they did. I think there was an element of time as well that enough of us knew that the time had come and that it wasn’t going to happen on its own anymore. Making it a genuine, authentic priority, people recognize that, and I think it made a difference. We talked a lot about it and people became convinced.
Now, not at every level, and that too will take time and a lot of effort from those most senior leaders. But it had to cascade. These things aren’t always quantifiable. There is an element of je ne sais quoi about it, but I think the moment had arrived.
Senator Jaffer: Thank you.
Senator Arnot: Thank you, Senator Shugart, and thank you for your leadership on this issue.
I think this committee has seen an exposure of a home truth that racism is deeply embedded in Canadian culture, can’t be ignored and we need to change that culture. Your call to action was to try to change the culture in the federal civil service, but you’re dealing with a cohort of individuals, adults, who had their own biases, whether they recognized them or not.
I think we need to accelerate the change required in Canadian culture by starting at a much younger age, from Grades K to 12. I believe in the power of education. I think we need to invest in the Grades K to 12 system intentionally, sequentially and purposefully to instill in our younger students in Canada the rights, responsibilities, respect and essential competencies of Canadian citizenship to be instilled so that the kind of change that is required will be a lot easier when you have a knowledgeable adult base.
I’m just wondering, sir, if you can comment on that. There are resources that exist in Canada to do exactly what I have discussed. And I believe that Canadian Heritage has a fundamental role to promote this, given how core it is to what it means to be a Canadian. Yet, obviously, many Canadians don’t really understand any of these issues.
Senator Shugart: Senator, I concur completely about education. Education can take many forms. It can be by example. It can be done using formal resources. It can be required training before one takes up one’s leadership responsibilities, et cetera.
I do think that youth is the key. I want to put on the record that my own role in this should not be overstated. It was the employees themselves who articulated what they were facing and who made the case that educated me. I was willing to listen to them, and that made a big difference. But they were the ones who explained to me what it was really like in the trenches. To my disappointment at the time, I was taken out of the area of responsibility for circumstances that I had no control over. It was suddenly passed to someone else. I had no control over that.
We do not control our own circumstances. I know that as well as anyone. This means that we have to broaden the base, and we have to replicate champions for this. Young people are not invulnerable to racism, prejudice and hostility, but they are our best hope.
So here I am — and at the time, I was an older, White, straight guy — issuing a call to action to the public service. It surprised me that I made friends with younger employees who were Black or Indigenous and who regarded me as one of theirs because I was issuing that call. It was one of the greatest honours of my career.
The Chair: Thank you, senator.
Senator Pate: Thank you very much, Senator Shugart. I want to echo the words of my colleagues — thank you for your leadership. Your humility speaks to that leading-by-example, in my humble opinion.
From your perspective, I’m interested in what you see as the steps going forward now. As well, in light of the systemic racism that has been exposed in the Canadian Human Rights Commission, or CHRC, as well as more broadly, what are the steps you would see — in addition to what you already said — that could address the issues at the CHRC but also address them more fully in the public service writ large?
Senator Shugart: Undoubtedly, senator, there are cases where a very specific diagnosis is called for — digging into what is going on and sometimes very prescriptive and corrective action. I won’t give an opinion on whether that applies in this case. But the committee will know. That’s one.
The other one is to keep going in the direction of education and of actions that are appropriate to the organizations. One of the things we have done in making departments responsible for human resources policy and decision is that we leave it to them to determine what is appropriate. That’s a challenge, so we have got to make them accountable for what they do with it. Therefore, I think the mechanism of reporting back, which is in the clerk’s call to action and which the present clerk has continued, is appropriate.
I think education and culture change through recruitment are also appropriate. We just can’t forget that we have this task in the public service. We have it throughout Canada, but in the public service, which is paid for by Canadians and serves Canadians, we should be the exemplar of that.
[Translation]
Senator Gerba: My colleague, Senator Shugart, thank you for being here. It’s really touching. I take from your remarks that a call of action has to come from each of us, as leaders, and your leadership is truly commendable.
How do we get more Ian Shugarts into the public service, to gain an understanding of what members of the Black community are experiencing and help the calls to action spread across the public service?
Senator Shugart: The first thing I would say to that is human cloning is illegal in Canada! Second of all, the public service has a lot of Ian Shugarts. Third, many departments, probably not all, have initiatives in place. There are small committees or groups where people can share their experiences. I applaud those initiatives because they encourage real information sharing with other employees regarding what employees affected by racism are dealing with.
Those kinds of initiatives are especially important.
Lastly, I would point to the responsibility to act on the basis of what we know. We know there are problems. We know from the data where those problems are, and, sometimes, we just have to say —
[English]
— we are going to have this number or this percentage of racialized people at this level —
[Translation]
— in order to hit the targets and achieve a certain level of representation or diversity within the organization. It comes down to a combination of sound and flexible mechanisms to achieve the desired goal.
Senator Gerba: All right.
As far as career advancement in the public service is concerned, do you think the assessment forms and criteria should be revised? The system works on a recruitment and promotion mechanism. Do you think the whole recruitment system should be revamped to make it more transparent? If so, how do we do that?
Senator Shugart: It’s possible. It’s important to make equity one of the system’s objectives. It has to be a real thing, and the practice has to be put in place and followed. It’s certainly possible. The progress being made shows that it is possible.
Senator Gerba: Thank you.
[English]
The Chair: Senator Bernard, I hate to be the bearer of bad news, but you have two minutes now.
Senator Bernard: I will be very quick. Senator, it’s a follow up to Senator Gerba’s question. As you talked about the idea of targets and so on, isn’t that what employment equity is supposed to be doing? It has been in place since 1986, so why haven’t we seen progress for the targeted groups that are legislated to be covered under employment equity?
Senator Shugart: I don’t know. It is presumably because the legislation itself is crafted in a way that allows the predominance of other factors to supercede those of equity objectives. In other words, permissive or aspirational legislation will not necessarily achieve the same thing that “harder” or “more requiring” legislation would require.
I don’t want to comment without the analysis of why that hasn’t happened, though.
Senator Bernard: Yes.
And could you just tell us very briefly why you felt it was necessary to specifically talk about Black Canadians in the call to action?
Senator Shugart: It was our Black employees who defined themselves as a distinct group. The data showed that there were specific consequences or limitations surrounding Black employees, and they articulated a vision of their own experience that made it evident that it was a group of fellow employees that we needed to be conscious of and do something about, and so we did.
Senator Bernard: Thank you.
Of course, under employment equity, they are listed under a visible minority, so you specifically separated them out.
Senator Shugart: Yes, and I think that had already been de facto the case. Of course, a class action was organized on that basis. We just recognized reality.
Senator Bernard: “Recognized reality.” Thank you.
The Chair: Thank you, Senator Shugart, for your testimony and for all the work you have done. I look forward to learning from you.
Senators, this is our fourth and last panel of the day. The witness has been asked to make an opening statement of five minutes, after which we will turn to questions from the senators. I welcome Harini Sivalingam, Director of Equality Program at the Canadian Civil Liberties Association, who is with us by video conference. I now invite Ms. Sivalingam to make her presentation to us.
Harini Sivalingam, Director, Equality Program, Canadian Civil Liberties Association: Thank you, Madam Chair, for the invitation to appear before the committee on this important national issue. I join you virtually today from the traditional territory of the Haudenosaunee Confederacy, the Huron-Wendat and the Petun Nations and the current treaty holders, the Mississaugas of the Credit First Nation.
The Canadian Civil Liberties Association, also known as the CCLA, is an independent, non-partisan, non-profit organization that promotes the rights and freedoms of all peoples across Canada. We stand with the Black community in condemning anti-Black racism, sexism and systemic discrimination at the Canadian Human Rights Commission.
The finding of the Treasury Board of Canada Secretariat of anti-Black racism at the commission amplifies what has been a known and lived reality for many members of Black communities that anti-Black racism, sexism and systemic discrimination exists pervasively across our public institutions. We have heard of disproportionate dismissals of race-based claims of the commission, in particular, complaints of anti-Black racism. According to the commission’s own annual reports, in 2021, 31% of complainants self-identify as Black, whereas in 2022, only 8% of complainants self-identified as Black.
Complaints of racism are often the most difficult and challenging claims. These are precisely the types of claims that require more support and resources from the human rights system. Therefore, we strongly urge the commission to take accountability and implement strong measures to address anti‑Black racism, sexism and systemic discrimination internally, within its own practices, and externally in how it handles race‑based discrimination claims.
We also urge members of this committee to use this opportunity as a catalyst for driving meaningful and effective changes to enhance the federal human rights system to meet the needs of Black, Indigenous and racialized communities in Canada.
CCLA was a key player among civil society organizations that advocated for the creation of the commission as well as the Ontario Human Rights Commission in the 1970s. National human rights institutions serve an important function in upholding rights and freedoms in Canada. They have been described as cornerstones for the protection of human rights. These bodies serve a unique role of being independent-of-government neutral investigators of human rights complaints and offer a less intimidating form than court-like settings for those who have had their rights and freedoms violated.
Yet, as we have seen and heard, these institutions are themselves not immune to anti-Black racism, sexism and systemic discrimination.
The current state of the Canadian Human Rights Commission cannot be left unaddressed. However, it is critical to ensure that the protection of rights and freedoms in Canada is a better funded, more accessible and representative human rights system for marginalized and vulnerable communities.
Our recommendations for advancing human rights in Canada are a number of key principles. First, ensure that the federal human rights system is adequately funded and well-resourced. Without adequate resources and funding, even the most theoretically ideal systems are destined to fail. At the current funding levels, the federal system lacked capacity to advance the protection and promotion of human rights.
In addition, take concrete measures to representatively staff the federal human rights system with candidates who demonstrate experiences with anti-racism practices. The composition of decision makers, leadership and other staff at federal human rights institutions should reflect and represent the lived realities, experiences and perspectives of Indigenous, Black and racialized peoples in Canada. Ensuring meaningful representation requires implementing anti-racist workplace practises regarding who gets in, who are let go and who rises up, in particular, in decision-making and gatekeeping functions.
The federal human rights system must be accessible for the most marginalized and vulnerable members in our communities. For many marginalized and vulnerable communities, the human rights system remains inaccessible. It is an uphill battle to advance claims through the federal human rights system, which is often a David-and-Goliath situation. All the respondents are large institutional actors, such as the federal government or federally regulated industry, which are well-resourced to fight such claims. For example, 57% of complainants at the tribunal in 2022 were not represented by counsel, whereas an overwhelming majority of respondents — 94% — were represented by counsel.
Conduct a comprehensive review of the Canadian Human Rights Act. The Canadian Human Rights Act is in dire need of an overhaul. There have been no significant reforms to the act in the past 25 years. For example, an element of the act that desperately requires updating includes the statutory cap on special damages of $20,000, which is far too low by today’s standards.
Also recommended are enhancements to ensure an adequately funded, well-resourced and representatively staffed federal human rights system.
While continuing to have a mandate for an enhanced commission structure, with strong investigative power to pursue test cases, interventions and systemic cases, there should also be some room for direct access to the tribunal that removes barriers and obstacles to adjudication, with funded legal resources, supports and representations for marginalized communities to ensure that their claim can advance through the system.
We look forward to the —
The Chair: I’m sorry to interrupt. I let you speak for six minutes and we have a list of senators who have questions to ask, so thank you for your testimony.
Ms. Sivalingam: Thank you. I look forward to your questions.
Senator Bernard: Thank you. I think I’m going to simply ask our witness to finish up with the recommendations.
Ms. Sivalingam: That was actually my last recommendation, so not to worry. I was just going to conclude with saying that we look forward to the recommendations from the Senate study to strengthen the human rights framework. I guess the key principles or key things that I wanted to emphasize is a well‑resourced, well-funded, representative human rights system is absolutely essential to tackling these issues and ensuring that marginalized communities have a path to be able to advance their human rights and protect their freedoms.
Senator Bernard: Thank you. I’ll ask very quickly, then. Are there other things within the act you would highlight that you think are in need of review and change?
Ms. Sivalingam: Yes. I would say there are a couple of things with the act that could require change. One is the cost system, just to make sure that the human rights system is more accessible, especially to marginalized and vulnerable individuals, ensuring that legal costs of complainants are covered in a one‑way system, a one-way cost regime.
The other thing that could be enhanced in the act is allowing better concurrent jurisdiction for complainants to be able to have more agency in which venue they feel is better to pursue their claim, whether it’s through the tribunal or through the union grievance process, if they have a strong process they would like to pursue. Basically providing complainants with more agency in having other avenues to pursue human rights claims.
Senator Bernard: Thank you.
Senator Jaffer: Thank you very much for your very comprehensive presentation. I have one question for you. You said the Canadian Civil Liberties Association is about equality. Not being rude, but where were you? Why has it taken so long to get us here?
Ms. Sivalingam: I guess that’s a very important question. We advance equality in a lot of different ways, such as through litigation, community organizing and advocacy. This issue was brought to our attention through the finding of the Treasury Board Secretariat.
The issue of anti-Black racism in all of our public institutions is definitely a long-standing issue, and we do take a lot of measures to advocate for marginalized communities, for the Black community and for individuals and organizations that come to us, including with legal litigation support.
In terms of our mandate as an organization, it is to intervene in cases, to bring out test cases and to advocate for policy and reform. I think us being here is one of those avenues where we’re expressing solidarity and having that voice to bring this issue forward and hopefully have an important recommendation heard by this committee; and, for you guys to act on what you have heard not just from our testimony but also from members of the Black community who have testified in weeks prior.
Senator Jaffer: Thank you.
Senator Arnot: Thank you. I have three questions, and I think you are well placed to answer these questions given your work at the CCLA.
Would you describe the efficacy of diversity, equity and inclusion tools perhaps with regard to bias awareness and microaggression in addressing systemic racism, specifically anti‑Black racism? Are DEI tools sufficient to respond to systemic anti-Black racism?
Thirdly, with respect to overhauling the CHRC, that organization is hamstrung by a lack of resources. It’s not an excuse in any way, but it’s an explanation for some of the problems that we’re hearing about. I think it’s been undervalued and, in fact, underfunded for decades. When you overhaul that, what would you say about making recommendations about proper resourcing?
Ms. Sivalingam: I’ll tackle each of your questions in as short a period as I can.
In terms of unconscious bias and employment equity, diversity and inclusion, or EDI, we definitely believe that training and education plays a role, but it’s not enough. You need to change workplace culture. You need to have political will to do that. You do need funding. Resources are not enough. You have to have the political will, to also make those changes. I was speaking to an EDI consultant, Kike Ojo, while preparing to speak before you today, and I really learned a lot about these types of practices and what really needs to be done to change workplace culture.
What I want to draw from, is that you need to look at what is incentivized, what is rewarded and what has consequences in order to change behaviour. You have to look at who is being promoted and who is being let go. What practices in that workplace culture are being rewarded, and which ones have consequences? For example, people who are making complaints of systemic racism, are their complaints being heard? Are they being dismissed? Are they being punished for making those complaints? Whereas people who are doing these actions that are contributing to systemic racism, are they being promoted and moved up along the ladder?
What is being incentivized, what is being rewarded and what has consequences attached to it. That is part of that workplace culture.
I think that deals with the second question about EDI and addressing systemic racism and systemic discrimination and practices. EDI alone is not going to do that. You really have to change the culture and representation, which is one of my key recommendations as well. Those whom you have in these positions must have a proven track record of doing anti-racism work. There are many ways to have those metrics.
Quickly, the third question about overhauling the Canadian Human Rights Commission and representation —
Senator Arnot: Making sure they get the right amount of funding to do the task that’s required to have success.
Ms. Sivalingam: Absolutely. That’s one of my three key messages. You need to have a well-resourced, well-funded system, but even the most well-funded and well-resourced systems still need political will. It doesn’t have the capacity or resources required right now, so we need to ensure that that is not used as an excuse not to do the work that needs to be done.
Senator Arnot: Thank you.
Senator Hartling: Thank you, chair, and thank you to the witness. You are bringing to us a lot of really good information. I really appreciated the brief that you sent to us.
In your brief, you stated that the CCLA was a key player that advocated for the creation of the Canadian Human Rights Commission and that the commission can be a more accessible, less intimidating forum than a courtroom setting for those who have their rights violated.
Do you believe the commission has lived up to the role for Black Canadians and, if not, what needs to change? Thank you.
Ms. Sivalingam: The system, as it stands, has not lived up to its own ideals of promoting and protecting human rights. It has definitely not lived up to the promise to the Black community to do that. We have seen that and we have heard it in testimony and from the Treasury Board Secretariat’s report. We have also seen and heard that, not just in its own employment practices, but also in how it treats claims that are coming to it, complaints of anti‑Black racism. Yes, it has been a failure in that regard.
These institutions can be made non-racist. You can change the culture and workplace practises to make these institutions not just non-racist but anti-racist.
We need to come to terms with the fact that this country as a whole has centuries of anti-Black racism. They are deep-seated in all of these public institutions, but that can be undone as well. Those centuries of anti-Black racism that have been the foundation of some of these institutions can be undone as well.
Senator Hartling: Thank you.
Senator Pate: Thank you to the witness. Thank you for your particular work in this area.
My question is following up on some of my colleagues’, but more specific too for the Canadian Civil Liberties Association, but other civil liberties organizations.
One of the challenges in dealing with racism, other forms of discrimination, often trotted out is the response that this was not racism; it was freedom of speech. Sometimes your organization, and others, have been put in the position of having to argue those kinds of positions. I’m curious how you see that fitting within this overall issue.
Certainly, sometimes when you are arguing for that freedom of speech, you are arguing for the freedom of speech of someone who is overtly engaging in discrimination, including anti-Black racism. I’m curious how you walk that line within the organization and what we could learn as a committee in terms of informing some of the discussion here.
Ms. Sivalingam: Thank you. That’s an important tension that arises in many organizations. We do value fundamental freedoms. We do promote equality. I actually said this in a staff meeting earlier that those two concepts are not mutually exclusive.
In order to achieve and realize full equality, vulnerable and marginalized groups, equity-seeking groups, need to have that full exertion of fundamental freedoms and rights.
However, fundamental freedoms — those such as free speech, free expression, freedom of religion — if those freedoms are not equally realized for all groups, then they have no meaning either.
I don’t want to say it’s a false dichotomy, to pit equality and fundamental freedoms against each other, but that they can and do coexist, because equity-seeking groups also need to have that right to free expression, the right to protest and all of those fundamental freedoms so that they can exercise the fullest equality rights.
Senator Pate: Thank you.
[Translation]
Senator Gerba: Thank you for your participation and the information you’ve provided. You said in your opening statement that the system has to be accessible to all.
You likened the system to a David-and-Goliath situation, where 50% of complainants don’t have someone representing them. We’ve heard from witnesses that it’s very difficult for complainants to be successful in their claims because they have to prove racism.
I have two questions for you. One, how do we ensure that the burden of proof isn’t always on the complainant? Two, do you think moving to a direct access system would likely lead to greater accessibility for Black minorities?
[English]
Ms. Sivalingam: Thank you. I am going to address the last question first. What we have seen through the Ontario, B.C. and Nunavut commissions, who have a direct access model, is that they can work if properly funded and resourced.
We’re not advocating for one system over the other. We do feel that there is a strong role for a commission-like structure to advance large, systemic cases, test cases. They have strong investigative powers that are required to, again, build that evidentiary base that I will come to when I address your first question.
We also feel that complainants should have the right to choose, to be able to have the agency to go directly to the tribunal. For example, if the commission were not to put forward their complaint, that shouldn’t be the end of that case for that complainant, the end of the line.
They should have an option then to take their complaint directly to the tribunal. There should be some direct access to the tribunal allowed while having a strong commission, because we think the commission does have a role to play in advancing larger systemic human rights issues.
Going back to your first question on addressing the burden of proof, as I did mention, I spoke to many lawyers who really had a lot to say about the difficulties in bringing and carrying forward claims from the commission into the human rights tribunal.
They said that there are many barriers and obstacles. The evidentiary burden of trying to prove, how do you prove discrimination? People that have discriminated are not going to leave a paper trail for you. How do you prove that? How do you demonstrate it? That is a tough battle. I don’t know if I have any answers to that, except that if you have a commission that is actively involved and has more resources to build that evidentiary trail by using resources such as being able to subpoena witnesses, having strong investigative power, and being able to have expert witnesses who can testify about systemic racism in particular industries. That would definitely be a step toward helping to ease that evidentiary burden for complainants.
The Chair: I want to thank the witness for your assistance in agreeing to participate in this study.
Colleagues and guests, the public portion of our meeting is now over. We will continue in camera to discuss a draft agenda.
(The committee continued in camera.)