Internal Economy, Budgets and Administration

Third Report of Committee--Debate Adjourned

February 18, 2020


Hon. Raymonde Saint-Germain
[17:25]

Moved the adoption of the report.

She said: Honourable senators, I am pleased to present the third report of the Standing Committee on Internal Economy, Budgets and Administration, which recommends the adoption of a new Senate Policy on the Prevention and Resolution of Harassment in the Workplace. This highly anticipated revision of the current policy, which dates back to 2009, is essential.

In addition to ensuring compliance with the Parliamentary Employment and Staff Relations Act and the Canadian Human Rights Act , the Senate, as employer, must fulfill new obligations under the Canada Labour Code that will come into effect this year.

The new policy will consequently refer to the expressions “harassment” and “violence in the workplace,” pursuant to the definitions established by the code. The definition of harassment has been updated to include its various forms, such as sexual harassment, cyber harassment, bullying, mobbing and violence in the workplace. A fundamental consideration is that harassment based on prohibited grounds of discrimination under the Canadian Human Rights Act will now be subject to the policy.

These prohibited grounds of discrimination include race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression and marital status.

Greater confidentiality underlies every step of this policy’s implementation.

The Act to amend the Canada Labour Code prohibits the communication of any information that could reveal the identity of anyone involved in a complaint, including complainants, those against whom the complaint was filed and witnesses, without their consent. The proposed policy respects that obligation and the unauthorized disclosure of information can result in disciplinary measures.

In accordance with the Act to amend the Canada Labour Code, the policy must apply to former employees who experienced harassment or violence subject to timeframes prescribed by regulation.

That being said, in addition to the need to meet these additional legal obligations, the Senate must amend its existing harassment policy, which is over 10 years old.

That is what the members of the Committee on Internal Economy’s Subcommittee on Human Resources found in February 2019 following their detailed review of this policy, which involved hearing from 19 witnesses, including senators, representatives of Senate employees, academics and other experts in the areas of workplace harassment and workplace health and safety.

The proposed policy that is before us takes into account the 28 recommendations made by the sub-committee members in their second report, entitled Modernizing the Senate’s Anti-Harassment Policy: Together let’s protect our healthy worklife, which was adopted by the Internal Economy Committee on March 21, 2019, and adopted by the Senate that same day.

Honourable senators, the Senate has not always been exemplary, nor has it met the legitimate requirements an employer must be subjected to.

Some 750 people work for the Senate, and each one deserves to be treated with respect and consideration in a healthy workplace.

The policy before us has two pillars: Prevention and complaint management. We really need to focus our efforts on prevention. Through training, awareness raising and early detection of possible harassment and violence, we must make sure to counter the harmful and toxic effects of harassment. Risk management is therefore critical, and we all have a responsibility — a duty — to contribute to a healthy workplace that is free of harassment and violence.

Complaints made under the new policy will be managed independently and totally externally. It is important to strengthen the credibility of the existing complaint process and guarantee its impartiality. This independence will be ensured through the use of an impartial third party external to the Senate that will be responsible for managing the entire complaint process from receipt and admissibility of the complaint to the conclusion of the investigation, if necessary, including various alternative dispute resolution and mediation services when required. Protection from reprisals is also a key element of this policy.

Not all conflicts can be resolved through a complaint and not all situations require disciplinary action. That is why the policy also provides for the implementation of remedial and corrective measures.

The Policy on the Prevention and Resolution of Harassment in the Senate Workplace is accompanied by two orders of reference, one to the Standing Committee on Rules, Procedures and the Rights of Parliament and the other to the Standing Committee on Ethics and Conflict of Interest for Senators. I want to emphasize that input from these two committees is important to ensure that the policy is implemented properly, carefully and fairly. Both committees are required to report to the Senate by April 30, 2020.

Let’s first look at the two reasons for the reference to the Standing Committee on Rules, Procedures and the Rights of Parliament. Because senators are subject to the policy, this committee will consider whether amendments to the Rules of the Senate are needed to implement the policy. Amendments could include, first, clarification regarding the complementarity of these policies, provisions and the Rules of the Senate; and second, clarification regarding the application and limits of parliamentary privilege in the application of this policy.

Clarification by the committee is long overdue and has been requested several times in this chamber, including last week, and in committee. The committee’s examination of this matter should make it possible to define the limits of parliamentary privilege in order to identify behaviour that violates this policy.

Let’s now look at the two reasons for the reference to the Standing Committee on Ethics and Conflict of Interest for Senators. The reference is needed because amendments are required to the Ethics and Conflict of Interest Code for Senators in order to implement the policy.

These amendments include, first, the additional role that would be given to the Senate Ethics Officer to recommend remedial, corrective or disciplinary measures when the respondent is a senator following an investigation concluding that he or she had engaged in harassment under the policy; and second, the additional mandate that would be given to the committee itself based on the inclusion in the ethics code of provisions related to harassment and violence in the workplace.

In conclusion, I remind you of our duty to provide all senators and Senate staff with a workplace that is free from harassment and violence, a healthy and rewarding workplace that promotes professional, individual and collective growth. The draft before you introduces a modern policy that aims to prevent harassment and violence and provide an impartial and rigorous process when such situations occur.

The draft Policy on the Prevention and Resolution of Harassment in the Senate Workplace, if adopted, will enable us to fulfill our duty as an employer and set an example for a safe and respectful workplace.

For all these reasons, the Standing Committee on Internal Economy, Budgets and Administration recommends the following:

1. That the revised Policy on the Prevention and Resolution of Harassment in the Senate Workplace, appended to this report, be adopted;

2. That the Standing Committee on Rules, Procedures and the Rights of Parliament be authorized to examine and report on the appropriate and consequential amendments to the Rules of the Senate and that the committee present its report to the Senate no later than April 30, 2020;

3. That the Standing Committee on Ethics and Conflict of Interest for Senators be authorized to examine and report on the appropriate consequential amendments to the Ethics and Conflict of Interest Code for Senators and that the committee present its report to the Senate no later than April 30, 2020;

4. That the revised Policy on the Prevention and Resolution of Harassment in the Senate Workplace come into force on the first day after the day on which the Senate has adopted both:

(a) the report of the Standing Committee on Rules, Procedures and the Rights of Parliament referred to in paragraph 2; and

(b) the report of the Standing Committee on Ethics and Conflict of Interest for Senators referred to in paragraph 3; and

5. That for greater certainty, the Senate’s Policy on the Prevention and Resolution of Harassment in the Senate Workplace from 2009 and the interim process for the handling of harassment complaints currently in effect are both rescinded and repealed at the time the revised policy comes into force; however, any complaints in progress at that time will continue as if the revised policy never came into force.

[17:36]

Would the honourable senator take a question?

Senator Saint-Germain
[17:36]

With pleasure.

[17:36]

Thank you, Senator Saint-Germain. That was a very good speech. As you were saying, it is time to update our policy. The question I have is related to the speech I gave last week about the loophole that currently exists with respect to parliamentary privilege, whereby a senator’s conduct during Senate proceedings, such as at committee meetings, is not part of the anti-harassment policy.

Is it the intention of the revised policy, and the orders of reference that you referred to, to close that loophole so that privilege no longer exempts a senator from behaving in an unethical manner?

Senator Saint-Germain
[17:37]

Thank you for your question.

Senators are subject to the current policy, and members of the subcommittee and the Internal Economy Committee have no intention of changing that.

You are absolutely right about the gaps, grey areas and loopholes in the current policy. Some of those gaps, grey areas and loopholes are related to a restrictive interpretation of parliamentary privilege. The current policy also underestimates the Senate’s and senators’ responsibilities as employers. In other situations, problems result from an interpretation of administrative rules that is not clear enough.

What we and the Internal Economy Committee would like to do is refer our code of ethics and conduct to two subcommittees. The subcommittees would submit reports, which would be amended and used as the basis for strengthening policy enforcement.

In addition, the Senate Rules Committee could continue to build on the work it has done. The committee has already produced two reports, one in 2015 and another in 2019. Obviously, we are pretty close to the goal, which is to clarify the complementarity of the Senate policy on harassment and senators’ obligations as members of a group, a work environment, as well as the Speaker’s obligation to maintain order and protocol during our proceedings and all proceedings that come under parliamentary privilege. All of that will be covered.

We did that work before you made your speech, which I found to be well documented, very serious and very credible. Evidently, we arrived at the same conclusions and we agree on the shortcomings that need to be addressed. That is our goal.

Hon. Rosa Galvez
[17:39]

I would like to ask Senator Saint-Germain a question.

The Hon. the Speaker
[17:39]

You have about a minute left in your regular time, Senator Saint-Germain.

Senator Galvez wants to ask you a question.

Senator Saint-Germain
[17:39]

I am prepared to listen to the question and to answer it.

Senator Galvez
[17:39]

Thank you very much.

I am very pleased to hear about the modernization of the harassment policy. It is a very important matter. I believe that in the past, in this place, we heard about several cases where the power relationship was obvious, namely that one individual was in a position of authority over another, for example a senator and an employee. However, there is not just sexual harassment, but harassment for all sorts of reasons, such as when conflicts of interest can lead to bullying and harassment by a colleague.

Will you consider this type of situation in your study? Will human resources work with the Senate Ethics Officer?

In addition, the law clerk is familiar with his clients, so as senators, we all have the same right to consult the law clerk.

The Hon. the Speaker
[17:40]

Senator, your time is up. Are you asking for five more minutes?

Senator Saint-Germain
[17:41]

If my colleagues agree, I’d appreciate it.

Senator Saint-Germain
[17:41]

Thank you, honourable senators. Your question covered several important points. You referred to conflicts of interest for senators, which is already covered by the code of ethics, and I think that the Standing Senate Committee on Ethics and Conflicts of Interest can already handle that.

What you described sounds like abuse of power. The second page of the proposed policy has the following definition for “abuse of power”:

Improperly using a position of authority to endanger another person’s job, undermine job performance, threaten the person’s livelihood or negatively interfere with their career. It includes humiliation, intimidation, threats and coercion.

Conduct involving the proper exercise of responsibilities or authority related to the provision of advice, the assignment of work, counselling, performance evaluation . . . does not constitute abuse of authority.

I could also share the definition of “harassment,” as follows:

Any improper behaviour or conduct by an individual that is directed at and is offensive to another person or persons in the workplace that the individual knew or ought reasonably to have known would cause offence or be unwelcome.

Harassment includes any objectionable conduct, comment or display — either on a one-time or recurring basis — that demeans, belittles or causes personal humiliation or embarrassment to a person.

The amendments to the Canada Labour Code and to the Canadian Human Rights Act have imposed certain legal obligations on us and, of course, on our role as legislators. We passed these laws and we are subject to them. No one here is above the law.

As for your last question about the responsibilities of the law clerk, I would say that in any institution, including a public and political institution like the Senate, the administration is always more efficient when it receives clear orders and consistent oversight from the decision-making authority.

I believe that this policy, given all the very precise aspects of its implementation, will provide clear guidelines to the administration, and it will be the role of Internal Economy, as the employer’s representative, to ensure that the policy is properly implemented.

I would also say that the interim process put in place until this policy is adopted is a process that normally must not involve internal interference by anyone, not by a senator nor the administration. In addition, if situations are brought to our attention, we, as members of Internal Economy, and I, as the chair of the subcommittee, will have to pay the utmost attention to them.

I have good reason to believe that this interim process was undermined, and I’m committed to finding out why and what led to this situation. Thank you.