Honourable senators, let me begin by thanking Senator Yussuff for the fine work he did in sponsoring this bill, shepherding it through, answering questions and offering transparency and communications. It was terrific. Congratulations to him on his first speech delivered this afternoon in this august chamber.

I would like to thank the members of Social Affairs, a committee on which I am pleased to serve. For the short time we had, I think the committee did a very good job examining the proposed measures in the bill with respect to the Labour Code. The Criminal Code amendments were looked at more closely by the Legal Committee, although we did ask questions around the constitutionality and Charter compliance of those provisions.

With respect to my contribution on this third reading debate, there are three things I want to cover. I support the bill, and I will speak briefly to why. I think the bill is good, but not great, and I will speak briefly to why and what further amendments from which it could have benefited. I will also speak to why I am now not going to move an amendment and will support the bill as presented to us by the House of Commons.

First of all, in terms of support for the bill, you have heard from other senators already about the importance of this. Even when we were talking about the process of this bill getting to us for consideration, people were talking about the importance of this bill, the impact it will have on the lives of workers, particularly those in precarious jobs, low-wage employment, many of them in essential sectors as we have deemed them to be through the process of this pandemic.

This bill is urgent in its timing. With the kind of spread we now see with the Omicron variant, had the speech been even two weeks ago it may not have included that word. It’s phenomenal how quickly things move. But with what we know now, the speed at which that variant of the virus spreads is incredibly disturbing and frightening. Now, even more so than at the beginning of the pandemic, it is necessary to have the right protection measures in place for workers and their health, and the right prudence of measures in place to protect the broader public health and community. So it’s important, urgent and it is a matter of common sense and fairness and equity that we move on this.

I said that I thought the bill was good and not great, and I continue to think that. We have heard from senators who serve on the Legal Affairs Committee and had comments with respect to the Criminal Code provisions: there is doubt whether those provisions were even needed, but that the minister, in his responses, had an important message to send. It was a message of solidarity and support from Canadians to health care workers and to patients who are attempting to access legal health services. They will be protected from harassment and even physical altercations, as we have seen on some of the protest lines set up outside hospitals.

That could have warranted more discussion, but, from my reading of the questions and the answers and talking to other colleagues in the Senate, that’s not at all fatal to this bill. It is an important message that is being sent, as is the opportunity to use this to educate the public and employers in federal sectors about the provisions that are being added here, as well as their access.

I’m more concerned about the parts of the bill that we examined at the Social Affairs Committee. Senator Kutcher has just done an admirable job of explaining concerns that I share with him and others around the requirement for sick certificates. Let’s call a spade a spade: What really underpins the policy decision that has been taken is, I think, a biased opinion that workers are prone to abusing sick time. Why else is there a requirement for this certificate? As we and MPs pushed on that, there were changes made in the House of Commons so that it now says only if you are off for over five days. Well, if you are off for over five days you are probably more likely sick than if it was a single day of absence. You just don’t know in this circumstance. It’s nonsensical, and it doesn’t help promote the stated policy goals of this bill.

The area I was working on in amendment was the method of accrual of sick days for workers under this provision of the act. Many of us felt that these days should be available day one. Again, to think they shouldn’t is only to buy into that which evidence has refuted: the old belief that workers are prone to abusing sick time. That amendment would have gone forward at day one. But after discussions with the government and members of our chamber, we decided the amendment would have accrual kick in at day 30 so there would be a short probationary or waiting period.

The policy rationale isn’t great for 30 days versus day 1, except there is some measure of people having contributed by earning the time. I’m not proceeding with that amendment because, as you know, the accrual provision was amended in the House of Commons, and it goes some way to improving it. But again, the policy rationale of what the bill is intended for, and the final amendment that the House of Commons agreed upon, doesn’t match up as ideally as the amendment we would have considered here in the Senate.

Why wouldn’t I continue to proceed with this? At this point in time, and others have spoken to it, it’s not just that a unanimous agreement was reached in the House of Commons with respect to this. It’s a unanimous agreement in a time of a minority Parliament where there are negotiations and many moving parts on the table, not just this bill. That is not the primary concern to us in the Senate, other than our duty to respect the accountable chamber — the House of Commons — the duly elected citizens who are looking at this parliamentary session in bigger terms than one bill at a time. With that, I feel my responsibility as a senator is, where I see a violation of the Charter or a new negative impact on regional or minority populations, that I have to give those things consideration. Just because my policy opinion is different from the government’s and I would go further is not sufficient reason for me to vote against the bill, which has had consideration from the other place and unanimous agreement after negotiations in a minority Parliament.

Thank you very much.

Honourable senators, I rise today to speak to Bill C-3, An Act to amend the Criminal Code and the Canada Labour Code.

I’d like to start by saying that as critic I appreciated the opportunity to establish what I believe was a very good working relationship with the bill’s sponsor and one of our newest colleagues Senator Yussuff, during the very compressed study of this bill.

I want to make it clear that I support protecting front-line workers from abuse and harassment, as well as the right to paid sick leave. I fully acknowledge how significant the Labour Code portions of this bill would be for federally regulated workers. The federal government is also planning to engage with provinces and territories to use this bill as a floor for improving workers’ sick benefits throughout Canada.

In the context of what has been happening in the COVID pandemic, this is an important initiative.

However, honourable senators, I will also begin by expressing my dismay over the overall handling of this bill, and I’m obviously not alone in this criticism.

The Standing Senate Committee on Social Affairs, Science and Technology held an organizational meeting on Tuesday, December 7, 2021. At that meeting, not only did we elect the chair and deputy chair and pass the regular motions, but members of the committee were table-dropped a proposed witness list for a pre-study of Bill C-3 and told that we would be limited to only four panels, one of which would include the minister and officials.

I then went straight into a steering meeting where we needed to immediately whittle down the list to fit within the constrained time frame. Invitations to appear went out that same day, and we heard our first two panels on Wednesday, December 8. We had several invitations declined, and it’s unclear whether this was because they had no desire to participate or if it was a matter of availability and capacity to deliver a presentation on such a tight timeline.

However, this led to an imbalance in the witness list with employers left under-represented. In my view, this was a glaring omission since it is employers who will be stuck paying for the measures proposed in this bill, not the government. If some employers cannot pay for the measures, it is their businesses that will be at risk and it is their workers who would lose their jobs.

The minister appeared at our next meeting at 6:30 p.m. on Monday, December 13, and was followed by our last three witnesses. We had a draft report in our hands by our 9 a.m. steering meeting on the next day, Tuesday, December 14. We then held a meeting during the Senate sitting that day in order to very hastily consider the report with the whole committee, not line by line, but paragraph by paragraph. The report was tabled in this chamber on Wednesday, December 15.

May I also observe that the so-called — and I would say misnamed — pre-study on the health care workers harassment aspect of this bill was also hastily dealt with by the Standing Senate Committee on Legal and Constitutional Affairs, who only had one witness, the Minister of Justice, and officials, and for only one hour.

If that sounds like a lot of information and processes in a short amount of time, that’s because it was. Everything had to be rushed, including our committee meetings. It was a whirlwind. It is not the way that legislation of this importance to so many businesses and workers should be considered.

Meanwhile, in the other place, the Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities heard from the minister on Tuesday, December 14, and went into clause-by-clause consideration later that day. They reported the bill back with two amendments on the same day our committee tabled our report. Unanimous consent was then received in the House of Commons to ship the bill to our chamber, as amended.

That means, colleagues, that our Standing Senate Committee on Social Affairs, Science and Technology pre-study report had no bearing on the proceedings in the other place whatsoever. It means that we have had no influence on shaping this legislation or addressing any potential gaps.

With the House of Commons already having risen, and the Senate about to rise for the winter break, we must now consider whether we are ready to take a principled stand of calling back the other place if necessary in order to see any amendments through, or if we will, once again, yield to the will of the elected House with minimal debate.

I fully associate myself with the remarks of Senator Tannas in second reading debate, who expressed this lamentable disregard for the Senate and its long tradition of sober second thought very well as did Senator Downe in speaking to Senator White’s amendment, and others.

I fear that we have evolved from the chamber of second thought into a chamber of the rubber stamp.

I was named critic for the official opposition last Thursday. My office immediately requested a critic’s briefing, the customary critic’s briefing, prior to the minister’s appearance the following Monday. We were told on Friday by the minister’s office that it was not possible. We were told that officials were so busy preparing for two committee meetings that they were unable to accommodate the request, so we had to agree to receive written responses in lieu of the briefing. Those responses were only received after the minister’s appearance.

Honourable senators, I recognize that many of you may not have acted in the capacity of a critic on a bill, with some only ever having served as a sponsor. In my view, the critic’s role is extremely important. A critic must ask the hard questions. If a critic does his or her job well, that is where sober second thought can have real meaning. If a critic cannot do his or her job, sober second thought merely becomes a slogan.

Minister O’Regan, himself, failed to differentiate during our committee meeting the difference between general technical briefings for parliamentarians and a critic’s briefing.

Allow me to explain that a technical briefing is not a critic’s briefing. A critic’s briefing includes a technical component, but it is an opportunity to directly flag concerns with the minister’s office and officials. It is a mutually beneficial way of avoiding delays by addressing concerns that can be easily assuaged with supplementary information and ensuring that committee studies focus on more significant concerns, such as those raised by stakeholders or those that reflect ideological differences. It is also often the first point of contact between the critic and minister, and senior officials, on a particular piece of legislation and helps to establish the lines of communication necessary for the smooth passage of a bill.

In this case, I was finally offered a briefing the day after the minister’s appearance and we asked that it be scheduled for yesterday so that I could understand the reasoning behind the decision to accept some amendments and not others. I was also able to ask other questions that had arisen for me after receiving written responses from the minister’s office.

As I say, I did finally receive my briefing yesterday as a critic. I was able to ask for a letter from the minister to be sent to Senator Gold outlining the last-minute amendments pertaining to the method of accrual, the addition of bereavement leave and to also include important clarifications to questions that arose during our brief study of this bill. The letter was circulated by Senator Gold by email last night. Frankly, I was hoping that Senator Gold would have tabled it for the Senate record. I did have my office recirculate it as well in case anyone did not see Senator Gold’s email sent at the end of the workday yesterday.

I have spent a lot of time on the process of getting this bill to this stage because we need to face the fact that too often we are told that we need to rush through consideration of “priority” bills. But if we are to believe this bill is a priority, I ask: Why did the government only introduce it now? Chandra Pasma, a senior research officer at the Canadian Union of Public Employees told our committee that:

. . . it’s disappointing that this bill wasn’t brought forward in April 2020. That would have been a better timeline, but since it wasn’t, now is the best time. We need them to be implemented urgently.

Ministers might assert that the matter needed to be carefully studied and that various implications needed to be evaluated first. However, there are two facts that are incontrovertible. First, in the second session of the last Parliament, during the current pandemic, the government prioritized 36 of its other bills that it decided were of higher importance than the bill we have before us today. Second, the government then called a federal election in the midst of a pandemic and kept Parliament idle until last month. That election cost Canadians over $600 million.

I do think we need to consider the serious challenges that this $600 million might have been able to address had it not been wasted on a needless election.

Meanwhile, workers have not been fully supported. Deena Ladd, Executive Director of the Workers Action Centre told our committee that:

I do think it’s important that we move fast on paid sick days. Workers are in desperate need of them, and we shouldn’t have any workers feeling like they should be going to work while they’re sick, which is what is happening right now.

And yet, even though we are being pushed to move quickly and, in my view, recklessly, through the legislative process, workers will not enjoy the comfort of 10 paid sick days for almost a year. The government has made clear that it arrived at the number 10 due to isolation requirements related to COVID, but the bill employs an accrual method and, as amended, would only enable an employee to earn 3 paid sick days after the first 30 consecutive days of employment. They would then begin to accrue an additional 7 sick days at a rate of one per additional 30 days of employment, totalling a maximum of 10 days.

This is not a retroactive entitlement and only begins to accrue once the bill comes into force at a date to be set by Governor-in-Council. How long will it take to come into force? According to written responses received from the minister’s office and tabled as an exhibit before the Committee:

The proposed new entitlement of ten days of medical leave with pay constitutes a significant change to the Canada Labour Code. It is proposed that the coming into force of these amendments would occur on a day to be fixed by the Governor in Council to allow time for consultations with stakeholders, training inspectors, education and awareness-raising activities for employers and employees, and the development of regulations if required.

So I suppose the answer to when the bill will come into force is, “Your guess is as good as mine.” If regulations are required — and I think they will be — that could amount to months with the gazetting process, though I recognize that the minister, in his letter to this chamber, referenced that his department will be “maximizing speed while ensuring that we get this right for employers and employees.”

Even if we were optimistic and said two months, we would be looking at next October before employees would have access to 10 whole days of paid sick leave under the proposed regime.

The majority of witnesses who appeared on this bill represented labour unions and worker advocacy organizations. All of those witnesses called for a bank, or bulk entitlement, with workers receiving the full 10 days after a set amount of time. Some said two weeks, others one month. A representative of employers told us the standard was three months to be entitled to benefits.

According to written responses from the minister:

Providing all ten days of medical leave with pay up front could impose costs on employers in high-turnover industries, such as road transportation, where employees change employers frequently. By accumulating paid leave throughout the year, new and departing employees would receive days of medical leave with pay for the months that they are with a particular employer, and thus limiting costs on employers in high-turnover industries.

I can appreciate that 10 days up front may be burdensome to some employers, and that is why I am pleased that a reasonable compromise was accepted by unanimous consent yesterday in the other place, giving access to 3 days up front after 30 days of continuous employment. This can be combined with other personal leave days already available through the Canada Labour Code and at least provide six days of paid sick leave shortly after this bill comes into force.

I am grateful to have received important clarifications from the minister in his letter yesterday. The first being assurances that this bill establishes a “floor” — that is, a minimum standard of entitlement — and does not create an additional entitlement for any workers who have access to equal or greater entitlements through their employer or negotiated collective agreements.

When Derrick Hynes, President and CEO of Federally Regulated Employers — Transportation and Communications, or FETCO, testified before our committee, he warned of an issue:

. . . which we believe is a serious flaw in the language of the bill. We believe it can be interpreted as leave that can be stacked on top of other leaves, which unfortunately will result in workplace conflict that is completely unavoidable.

I am glad that his concerns and their concerns have been taken seriously and addressed.

I also asked if this leave would be available for mental health breaks and for those undergoing treatments, including addictions treatment. The answer I received at committee was, yes, it can apply to mental health breaks, but on the question of it covering time lost due to addictions treatment, we were told by Ms. Hassan of the department that she is “not in a position at this point to answer that excellent question.”

That is why we appreciated receiving the response by letter from the minister to Senator Gold, copied to Senator Omidvar, chair of the Social Affairs Committee, and myself as critic, confirming that:

Employees would be entitled to take medical leave with pay due to illness or injury, organ or tissue donation, or attending a medical appointment during working hours. This could include time-off for mental health reasons or addictions treatment.

I had also asked for clarity during the committee pre-study regarding whether or not this would apply to part-time and short-term employees and those placed in federal departments and Crown corporations by staffing agencies as, I would note, they’re currently not entitled to the same benefits as full-time, term or indeterminate employees. The answer was not as promising. We were advised by Ms. Sandra Hassan, Deputy Minister of Labour, that it would, indeed, apply to part-time and short-term employees. She went on to say:

In regard to the second part of your question, the HR agencies, it will be important to look at the status of the employee. This legislation is applicable to employees under the federally regulated regime, and a person hired through an HR agency could potentially be covered under provincial law.

Therefore, it will be a question of looking at each case to see whether the person is under federal regulation or provincial —

In other words, these folks placed by staffing agencies may be left out in the cold despite passage of this bill.

There is, colleagues, an important issue that we need to discuss when debating this bill.

Several witnesses who appeared before the Senate committee noted that they were not consulted on this bill. Quite frankly, instead of engaging in consultations over the summer, the government plunged headlong into an election and then, without consultations, introduced this bill just before Christmas in its usual panicked fashion.

The absence of consultations will clearly have an impact on small- and medium-sized enterprises, or SMEs. It was surprising — and, I’ll admit, alarming — to learn from the minister’s letter that, “Small business owners . . . represent about 96% of employers in the federally regulated private sector, and specific industries.”

Jasmin Guénette, Vice-President of National Affairs at the Canadian Federation of Independent Business, testified before the Senate Social Affairs Committee, warning that:

If Bill C-3 is adopted, many businesses could be forced to cut down on staffing and benefits to absorb the new costs, if they can even survive the pandemic.

He was explicit in his testimony that small- and medium-sized enterprises are hurting:

Small business owner optimism is almost at a record low. Inflation, supply chain disruption and shortages of labour are hitting small business really hard, not to mention COVID-19 and all the restrictions imposed on businesses as a result.

He added:

The last thing I will mention is the current shortage-of-labour crisis is extremely difficult for small business. They are struggling to find and keep employees. Any legislation that will make it harder and more costly for business owners to manage their payroll will be extremely damaging.

We cannot ignore that this legislation will have significant impacts on SMEs in the federally regulated sector. Nor can we ignore the fact that the minister has been quite clear that this bill and its provisions will be used as a bar when:

. . . the Government of Canada [convenes] provinces and territories in early 2022 to discuss a plan to legislate paid sick leave across all provincial and territorial jurisdictions in the country.

We need to listen to SMEs and their representatives, like Mr. Guénette, who advised that:

If Bill C-3 is adopted, government must find ways to cut costs elsewhere for small business owners, such as freezing the increase in CPP. Government could also lower EI contributions paid by employers and ensure COVID support programs are available to more businesses.

In other words, prior to entering into discussions with provinces and territories, and as it moves forward, the government must do what it has not done up to this point. It must develop a coordinated strategy, look at the costs for business and consider potential trade-offs. To do this effectively, the government must actively consult with the impacted stakeholders.

If the minister had conducted consultations prior to introducing this bill, some of the concerns we have frantically sought assurances on would have been addressed up front and we, alongside workers and employers, would not have had to wait with bated breath for these important answers, which arrived at the eleventh hour.

It should also be noted that, while we heard from several national organizations representing workers, these organizations do not represent federally regulated workers as well as one regional organization does. I wish that, in the interest of balance, we could have heard from more national and regional business associations that could have enriched our body of evidence.

Honourable senators, I want to applaud the fact that the provisions of Bill C-211— MP Tom Kmiec’s private member’s bill — have been incorporated in this bill. The extension of bereavement leave to eight weeks is extremely important for those who have had to live through the terrible experience of the death of a child.

What is unfortunate is that these provisions have only been incorporated through the usual last-minute scramble. Consultations with members of Parliament, as well as a review of issues important to parliamentarians, might have contributed to earlier legislative coordination. After all, Mr. Kmiec has been working on the issue of bereavement leave since at least 2018.

In addition to better reflecting ideas from elected MPs, consultation helps to build legislative goodwill. Certainly, I am grateful that these provisions have been incorporated. I only wish the process had begun much sooner, rather than at the last minute and under the extreme pressure of passing this legislation.

Honourable senators, we must also remember that there are two parts to this bill: one that covers paid sick leave days and another that is meant to protect front-line workers.

I believe that all senators in this chamber would agree that health care workers should be protected. They’re Canadian heroes and they have got us all, collectively, through this pandemic. We need to acknowledge that.

As a lawyer, though, I have to question the need for these provisions. The Criminal Code already has provisions covering harassment and assault, and police and prosecutors are already empowered to intervene in unlawful or non-peaceful protests that would otherwise intimidate or impede the access of those looking to enter a workplace, including a hospital.

Minister O’Regan admitted to the Senate Social Affairs Committee that:

When I first introduced this with Minister Lametti, there had been those who said to me, “Well, you know, a lot of these powers already exist and this is just politics.” Well, to the particulars of the point, the fines and the sentencing will demonstrably increase. Secondly, yeah, you know what, politics isn’t always a bad thing.

I would contrast that statement with the report tabled by the Senate Legal and Constitutional Affairs Committee, which states:

While the committee appreciates the importance of protecting health professionals and access to health services, committee members raised several questions about the need to introduce the new offences proposed by Bill C-3, given that the Criminal Code already contains the offences of intimidation (section 423) and mischief (section 430). These offences are available for police to use in response to situations where people are being intimidated, obstructed, or impeded from accessing or providing health services. . . . The committee has previously raised concerns about how the Code has been amended on a piecemeal basis for many years and has become cumbersome and very complex as a result.

So, colleagues, we find ourselves being pushed to pass a piece of legislation that we couldn’t study thoroughly. We were under such tight time constraints that we could not hear from all those affected. I thank Senator White for valiantly trying to do his job to improve the legislation, but the fact is that any attempts by this chamber to improve the bill were stymied before it even reached our chamber. We tabled a pre-study report at the same time as an amended bill was being reported back to the other place, and with Parliament set to rise for six weeks, the likelihood of getting any amendments in at this stage would have been slim to none.

We must protect our front-line workers and we must support workers. I would have liked to see the government simply give existing provisions in the Criminal Code more teeth, with both higher and certain penalties. I would have liked to see more time to consult with SMEs, who will be disproportionately affected within the federally regulated sector, and even more so once similar provisions are instituted at the provincial and territorial levels.

Despite these frustrations, I cannot stand in the way of efforts to signal somewhat better protection for hard-pressed front-line workers. I also support ensuring that we offer adequate paid sick days to employees.

I will support this bill, but I do so noting that we must soon draw a line in the sand, as has been discussed in this debate. We cannot continue to rubber-stamp flawed and rushed legislation. This legislation has long-term consequences, and rubber-stamping poorly considered initiatives will be detrimental to Canada and a betrayal of this chamber’s mandate.

Thank you, honourable senators. Qujannamiik.Taima.

Are honourable senators ready for the question?

Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

(Motion agreed to and bill read third time and passed.)