Moved second reading of Bill S-232, An Act respecting non-disclosure agreements.

She said: Honourable senators, as a senator from Manitoba, I acknowledge that I live on Treaty 1 territory, the traditional lands of the Anishinaabe, Cree, Oji-Cree, Dakota and Dene peoples, and the homeland of the Red River Métis Nation. I also acknowledge that the Parliament of Canada is situated on unceded territory of the Anishinaabe Algonquin Nation.

Colleagues, as noted by Senator Ross, today is the first of the UN 16 Days of Activism against Gender-Based Violence. It seems fitting that on this day I am reintroducing the “Can’t Buy Silence Act,” or Bill S-232, An Act respecting non-disclosure agreements, because women are disproportionately affected by non-disclosure agreements, or NDAs, that cover up wrongdoing.

The purpose of this bill is to redress workplace abuse in federally funded entities. This bill aims to prohibit the misuse of non-disclosure agreements as civil settlements involving harassment, discrimination and violence in federally funded workplaces and federally funded entities.

The term “misuse” is key here, as NDAs have evolved from their original intent to become a malevolent tool to silence and oppress the more vulnerable. For example, we here in this chamber, as well as many other venerable institutions, use NDAs to ensure confidentiality. The point of this legislation is, rather, to quell any intentional misuse of NDAs to cover up wrongdoing by those in positions of power.

My bill is not the first reference to the misuse of NDAs in this place. Four years ago, the Senate Standing Committee on Internal Economy, Budgets and Administration issued a report entitled Addressing Violence and Harassment in Canada’s Senate, which recommended prohibiting NDAs in harassment and violence cases.

The report warned that NDAs allow harassment and violence to remain “. . . shrouded in secrecy” and noted that women, who statistically face more harassment, are disproportionately affected.

Yesterday, The Hill Times published an opinion piece I co‑authored with Dr. Julie Macfarlane, co-founder of the civil society organization Can’t Buy My Silence, who has worked tirelessly to raise awareness in Canada and internationally on the impact of abuse hidden by non-disclosure agreements.

Regardless of your position today on this bill, I know that senators believe in evidence-based decision making. So please join us tomorrow at 10 a.m. in the senators’ lounge for “Breaking the Silence: Conversations on NDA Legislation,” co-hosted with Senator Kim Pate, featuring experts and individuals who will speak personally about the damage done to them as a result of the imposition of an NDA to cover up wrongdoing.

Allow me to offer a bit more information on non-disclosure agreements, or NDAs. Non-disclosure agreements are also known as gag agreements, non-disparagement agreements and confidentiality agreements. They are terms in contractual agreements that lawyers started using over 40 years ago to protect commercial information and intellectual property by imposing non-disclosure contractual obligations which, if divulged, could result in being sued for breach of contract.

However, NDAs are now often used to silence victims of sexual misconduct, discrimination, racism, harassment and other human rights violations. The misuse of NDAs causes profound psychological harm by imposing silence on vulnerable people, protecting predators from accountability, undermining organizational integrity and compromising the principles of justice and fairness.

They disproportionately affect the most vulnerable and marginalized members of society: Indigenous, racialized, gender-diverse, female and 2SLGBTQI+ people are most disproportionately affected by NDAs. Moreover, individuals impacted by gender-based violence are often the most vulnerable to the traumatic impact of NDAs.

The purpose of NDAs — to shield perpetrators and protect the reputation of the more powerful party — is misuse. When a victim signs an NDA, they secure their own privacy and sometimes monetary compensation at the cost of agreeing to protect the privacy of their alleged abusers. This enables perpetrators to move up internally or to move to other organizations without accountability and no record of their wrongdoing.

One of the survivors who came out publicly about his experience inside a federal agency said to me that for him, the hardest part of the result of signing an NDA was having to stay in his job and watch his offending supervisor be promoted with a pathway to continuing their discriminatory behaviour, all funded by public money.

Bill S-232 — the can’t buy silence act — is straightforward. To put it simply, follow the money and cut off federal funding for the misuse of NDAs, and stop the legal system from being weaponized against complainants with the overhanging threat of being sued if they tell their truth and call for accountability.

Enactment of this bill would raise parliamentary standards of transparency and accountability by requiring the President of the Treasury Board to add to their already required reports a section on the use of non-disclosure agreements related to cases of alleged harassment in federally funded entities. It also requires Parliament to undertake a review of the act every two years after it enters into force.

Allow me to say here that I have spoken to the President of the Treasury Board, the Honourable Shafqat Ali, who invited me to have a more fulsome discussion about this bill with him soon.

The can’t buy silence act would also amend the Financial Administration Act and the Parliament of Canada Act in respect of the use of public money to enter into non-disclosure agreements for complaints of harassment or discrimination and to litigate non-disclosure agreements to punish or silence complainants who speak out after signing an NDA.

It amends the Financial Administration Act to require federal officials empowered to make grants and contributions to take measures to ensure that public money is not used to pay for settlements in relation to harassment and violence or discrimination if the settlement is to include a non-disclosure agreement or to litigate non-disclosure agreements against complainants.

Finally, it amends the Financial Administration Act to require non-government entities receiving a grant or contribution of federal funds to report to the President of the Treasury Board on their use of non-disclosure agreements so that these reports can be included in the Treasury Board’s report to Parliament.

To change the permissive culture that has allowed NDAs to be used to cover up misconduct instead of protecting trade secrets, this bill will also introduce new and higher standards for transparency and accountability in reporting to Canadians on the use of public funds.

In clause 3, the bill requires that all entities whose financial information is included in the public accounts prepared under the Financial Administration Act must provide the number of NDAs made in cases of harassment and violence or discrimination that met the above conditions as well as the amount spent on those NDAs in that fiscal year.

Clause 4 ensures that there will be a public review of the effectiveness of this bill every two years by a committee of the House of Commons and the Senate, specially constituted for this purpose.

Clause 5 ensures that entities not included in the public accounts — entities such as the CBC and the National Research Council, to name a few — but which have received a federal donation or contribution must provide the same information and do so without disclosing complainant identity on an annual basis to the President of the Treasury Board.

Sports associations in this country receive large grants of federal money. The Hockey Canada sexual assault scandal is a recent example that should be borne in mind.

Clause 6 is meant to prevent the federal government from making NDAs with federal employees using public funds, where the federal employee has complained of harassment and violence or discrimination in the workplace.

Let me now speak briefly about prevalence. By their very nature of enforced secrecy, precise numbers are currently impossible to determine, but should the can’t buy silence act become law, there would be a way to get more accurate data. U.S. and Canadian studies have found that approximately one third or more of employees have signed an NDA. Can’t Buy My Silence data show that 45% of Canadian respondents say they have signed an NDA, and another 13% “can’t say for legal reasons,” which infers they have signed an NDA but are aware that it would be a technical breach for them to say so.

Can’t Buy My Silence notes that more than 16,000 NDAs were signed in Ontario each year for sexual harassment alone. Many agreements also include non-disparagement clauses, which go even further than NDAs because victims are barred from making any negative remarks about the abuser or employer.

Some question how signing a contract could negatively impact a complainant in a discrimination or harassment case. What’s the big deal? Research shows that NDAs can lead to very serious mental health impacts. They typically block victims from speaking to family, friends, colleagues and even therapists about what happened, and they add to the layers of trauma the person has suffered. Can’t Buy My Silence research indicates that 93% of respondents signing NDAs report negative mental health consequences.

The truth is that NDAs are not equal in reach or impact. Studies show how NDAs disproportionately affect women, racialized groups, Indigenous people and people both younger and older than the mean. Women are most likely to be disproportionately affected because of their prevalence in sexual harassment and in pregnancy discrimination cases.

A 2024 study from Dr. Mark Gough at Penn State University finds evidence of the disproportionate impact of NDAs on racialized and Indigenous workers. Analyzed by age group, research shows that NDAs are signed most frequently either at the beginning of their careers or later, regardless of gender.

Let me now address whether this bill is just an isolated concern of mine by informing you of initiatives in other jurisdictions. As many as 29 U.S. states have enacted NDA legislation — not all the same. The states of Arizona, Louisiana, Missouri, Tennessee and Wisconsin have passed legislation which is quite comparable to what is presented in Bill S-232. At the federal level, in 2022 the U.S. Congress passed the Speak Out Act, which prohibits the judicial enforceability of a non-disclosure clause or a non‑disparagement clause agreed to before a dispute arises involving sexual assault or sexual harassment in violation of federal, tribal or state law. Non-disparagement provisions typically restrict what an employee can or cannot say about the employer following a separation of employment.

The Government of the United Kingdom is set to amend the Employment Rights Bill in clause 22. This significant governmental shift is due largely to the years-long public campaign led by Zelda Perkins, co-founder of Can’t Buy My Silence, who was the first to break her NDA used to hide the wrongdoing of Harvey Weinstein and his companies. For those of you who have seen the recent movie She Said, Zelda is featured in that film.

As quoted in the Guardian after the U.K. government’s announcement, Zelda said:

. . . for years we’ve heard empty promises from governments whilst victims have continued to be silenced.

To see this government accept the need for nationwide legal change shows that they have listened and understood the abuse of power taking place.

Above all though, this victory belongs to the people who broke their NDAs, who risked everything to speak the truth when they were told they couldn’t. Without their courage, none of this would be happening.

Also, under way for passage is Ireland’s Maternity Protection, Employment Equality and Preservation of Certain Records Act, passed in 2024; and Victoria, Australia’s recently introduced Restricting Non-disclosure Agreements (Sexual Harassment at Work) Bill 2025 which passed legislative council a few days ago on November 20.

Here in Canada, the provincial legislature of Prince Edward Island enacted the Non-disclosure Agreements Act in 2022, the first such legislation in Canada restricting the use of NDAs in cases of harassment and discrimination. My home province of Manitoba, and Nova Scotia, introduced similar legislation in 2022. Saskatchewan introduced it in 2023, although none have yet become law.

Ontario passed Bill 26, Strengthening Post-secondary Institutions and Students Act, 2022, restricting the use of NDAs in certain situations in a post-secondary context.

In 2023 members of the Canadian Bar Association adopted resolutions concerning the misuse of non-disclosure agreements, pressing the federal government to uphold an international commitment and enhancing data collection on judges and judicial candidates to allow for an intersectional analysis of the judiciary.

Honourable senators, we in this chamber have always striven to stand up for what is right. We need to use our legislature to denounce the oppression of the most vulnerable through the use of NDAs to hide wrongdoing done to them.

Legitimate NDAs underpin the operation of our Parliament. They are not the focus of this bill, just as they are not the focus of laws enacted in other jurisdictions. Bill S-232 is the opportunity for Canada to simply and efficiently address the misuse of NDAs to cover up wrongdoing in federally funded entities. Surely we can agree that the Canadian government should not be in the business of intensifying wrongdoing and harm caused by the misuse of NDAs.

Please, join with the broad public campaign to work together to stop protecting organizations and individuals in the federal realm who misuse their dominion to harm others.

Thank you, meegwetch.

Yes.

Thank you, Senator Clement, for the question. The practicality is that it is impossible to fully research the use of NDAs to cover up wrongdoing, either in the federal government or any other entity. What we know, though, through the cross-Canada surveying done by the civil society organization Can’t Buy My Silence is that respondents to the surveys, at a very high percentage — and we’re talking about recent years; we’re not talking about many years ago — have indicated, as I mentioned in the speech, over 50%, that they have experienced not only the requirement of the NDAs but also the harm that they have then experienced after that.

I can’t do a better job than the folks tomorrow morning will do at 10:00 a.m. in the senators’ lounge, because we have people coming who have broken their NDAs and who are willing to speak out and say much more about what it has done to their lives.