Can’t Buy Silence Bill

Honourable senators, I rise today to speak in support of Bill S-232. Thank you, Senator McPhedran, for your leadership on this issue and your tireless work to shine a light on the harms, injustices and inequalities that non-disclosure agreements cause, as they too often obscure and protect and thereby perpetuate abuse.

Non-disclosure agreements, or NDAs, originated in the 1980s as a means of protecting the markets and profits of tech businesses in Silicon Valley, preventing employees and others from divulging trade secrets.

In 1984 U.S. Federal Judge Miles Lord issued a courtroom reprimand exposing settlement agreements that the A. H. Robins Company used to silence women injured by the Dalkon Shield intrauterine device. Judge Lord stated:

If one poor young man were, without authority or consent, to inflict such damage upon one woman, he would be jailed for a good portion of the rest of his life. Yet your company, without warning to women, invaded their bodies by the millions and caused them injuries by the thousands. And when the time came for these women to make their claims against your company, you attacked their characters. You inquired into their sexual practices and into the identity of their sex partners. You ruined families and reputations and careers in order to intimidate those who would raise their voices against you.

Then, in a situation that simply beggars belief, Judge Lord himself was subsequently silenced. On appeal, the company that had injured and killed women succeeded in convincing the court to strike the judge’s comments and expunge the record. Since then, the use of NDAs has grown exponentially, forcing silence that primarily serves to protect wealth, power and privilege.

In Canada, the best available data indicate that nearly all sexual harassment settlements include NDAs. Approximately one in two Canadian workers who have experienced harassment or discrimination has been required to sign an NDA as a condition of settlement.