Can’t Buy Silence Bill

Honourable senators, since the 1980s, the use of non-disclosure agreements, or NDAs, has grown exponentially, forcing silence that primarily serves to protect the wealthy, those with power and those with privilege.

In Canada, the best available data indicate that nearly all sexual harassment settlements include NDAs. Some one in two Canadian workers who have experienced harassment or discrimination have been required to sign an NDA as a condition of settlement. Those who sign are disproportionately women, racialized folks, those living with disabilities, those who are impoverished or financially precarious and those who have been victimized by someone in a relative position of power and privilege.

People who sign usually do so as a condition of receiving a financial settlement, too often when they’re in economically disadvantaged circumstances and when they believe they have no other options. Too often, NDAs are signed by those who fear backlash and attacks on them and when it seems that abusers won’t be held accountable in civil or criminal trials. Simply put, they most often believe that they have no choice.

Experiences of some 130 victims and survivors who have signed NDAs were collected by Can’t Buy My Silence, an organization co-founded by Julie Macfarlane, Emerita Distinguished Professor of Law at the University of Windsor, as well as Zelda Perkins, a woman at the forefront of the #MeToo movement and the first to break a non-disclosure agreement signed with Harvey Weinstein.

Survivors spoke loudly and clearly about what it means to be silenced by NDAs, highlighting patterns of coercion, time pressure, lack of information, exploitation of financial and other power imbalances and dismissal of any concerns raised.

One survivor said:

I was given just 10 calendar days to accept or reject the settlement, including the NDA. . . . [creating] immense pressure to decide without adequate time to consult a lawyer or fully assess the implications. The rushed process felt deliberately designed to limit my ability to resist or seek alternatives . . . .

A common myth is that those who report abuse are the ones who seek NDAs for their own protection. NDA signers report not being offered ways of protecting their own privacy without also agreeing to protect institutions and abusers in return. Too many do not even receive copies of the settlement agreements they sign.

Legal experts note that NDAs are intentionally worded in ways that make them difficult to comprehend. Dr. Macfarlane says:

I have never spoken to anybody, no matter what their level of education, who fully understood the consequences of an NDA when they signed it . . . .

What are some of those consequences?

People who sign NDAs are prevented from speaking, even to family and friends, about what happened to them. They are unable to warn others. They often worry about whether their abusers go on to harm others or, worse yet, see the evidence of them doing so. Can’t Buy My Silence indicates that while half of victims left the workplace after experiencing harassment or abuse, only 5% of those who victimized them left or moved. Abuse continues and abusers are protected.

When settlements with the Canadian government and its agencies contain NDAs, the cost of all of this — the silencing of victims, the protection of abusers and leaving in place conditions for future abuse — is funded by public money. Canadians are the ones whose tax dollars pay for these predatory arrangements. Too few of us know this, precisely because NDAs enforce silence.

Notably, Bill S-232 would ensure that the Government of Canada does not spend public money on settlement agreements relating to harassment, violence or discrimination that silence people through NDAs or on legal actions to punish those with NDAs who speak out about what happened to them. The bill would not prevent victims and survivors from choosing to protect their own privacy through NDAs or otherwise. Rather, Bill S-232 would recognize the reality that NDAs currently and overwhelmingly operate to protect institutions and perpetrators of injustice rather than victims and survivors. It would aim to ensure that Canadians do not support and assume the costs of revictimizing and punishing survivors of discrimination and violence.

For nearly five decades, I have had the privilege of walking into and, more importantly, out of federal prisons. As senators, we have a statutory right of access. Those of you, honourable colleagues, who have exercised this right to visit prisons know the feeling of moving through multiple layers of barbed-wire fences, stone walls, metal security doors, guarded gates and security checks. Who controls the entry and departure of people and information is palpably clear.

When the rights of a prisoner are violated by someone responsible for their care and custody, they are violated by the very people and entities who control whether a prisoner can reach lawyers or other supports. Prisoners do not have access to email. Most are impoverished and can neither afford nor access adequate legal, mental health or other vital supports. For those who can afford to pay for phone calls and stamps, corrections still controls access to phones and even to pens, paper and information.

Corrections also creates and holds records, from the prisoner’s personal file to video cameras and recordings. When they appear in court, as Law Professor Emma Cunliffe has documented, the accuracy and reliability of the record-keeping that they provide are all too rarely questioned. Can you imagine mounting a successful court challenge under such an extreme imbalance of power? Would you even try, given the documented risk of reprisals within prisons against those who speak out about wrongdoings by prison authorities?

Virtually every prisoner who bravely brings forward a complaint that could give rise to a human rights case or criminal charge is met with an offer of a cash settlement with a prerequisite NDA. Most people in such a situation are struggling financially or personally — particularly if released from prison — with how to live, how to work and how to afford to be in the community.

People accept those settlements because they need the resources to address their basic needs: to live, eat and house themselves. They lack the resources to go to court, even though they would almost certainly thereby receive a larger amount of compensation and more effective accountability. They can’t afford to wait for the months or years it may take for a tribunal or court decision. This, in addition to their isolation and criminal record, makes them both desperate for relief and justifiably fearful that they won’t be believed. They are, therefore, uncertain of any alternate result.

Because of the NDAs attached to these settlements, information relating to the abuses rarely becomes public knowledge. Patterns of abuse or other wrongdoings remain shrouded, and knowledge cannot be shared. Perpetrators of injustice and wrongdoing are protected. If a victim even inadvertently or unintentionally breaches an NDA, such breaches are often litigated, and victims are charged with contempt and ordered to pay back the compensation they received. They are sometimes even jailed for contempt of court.

Between April 2022 and the end of 2025 alone, the Government of Canada paid out more than $74 million in public money to 200 federally sentenced people under settlement agreements. Some were related to public court settlements, but the vast majority of those arrangements — 88% — included a non-disclosure requirement.

When I speak in this place of relative power and privilege about the prison system, honourable colleagues, I often try to share the story of someone with whom I’ve worked and walked and tell you how they have struggled against the injustice we are discussing.

Today, government-initiated NDAs preclude me from doing so.

How is this helpful, let alone fair or just?

Within prisons and beyond, those who take advantage of secrecy and silencing through NDAs are too often the very people whom we expect not only to uphold the law but also to model appropriate behaviours. Many of the allegations they face concern breaches of the criminal law as well as breaches of Charter and human rights, backed by clear and often incontrovertible evidence. This is what an NDA renders invisible.

What example is set when those responsible for protecting us are unwilling to correct their own behaviours and then hide those behaviours from us?

Colleagues, the government has stated its commitment to redressing violence against women and girls, as well as implementing the Calls to Action of the Truth and Reconciliation Commission and the Calls for Justice of the National Inquiry into Missing and Murdered Indigenous Women and Girls. Most Indigenous women in prison have experienced the horrific legacies of residential schools as well as child welfare and additional abuse and trauma.

There is much to be done to eradicate the racism, colonialism, misogyny and other systemic, economic and social inequalities that underlie this violence. Bill S-232 is not a panacea, but it is an important step to address the misuse of non-disclosure agreements by federally funded entities. It will allow Canada to invest not in buying silence and further persecuting those in vulnerable positions, those who are victimized by others in positions of authority, but rather in healthier, more just and equal communities for all of us. For these reasons and more, I am grateful for, and happy to vote in favour of, this bill.

Chi-meegwetch, thank you.

In fact, the people with whom I spoke talked about the P.E.I. legislation. Thank you, Senator Downe, for raising it as a model that could be looked at for other jurisdictions, as well as for Canada as a whole. Thank you for raising that.

In fact, as you may recall from my speech, one of the realities is that, in situations where people have tried to challenge non-disclosure agreements, because of their recognition, they see other people being abused by the perpetrators whom they had to deal with, and they, themselves, have been punished.

In fact, as I mentioned, there have actually been women jailed for contempt because they tried to challenge an NDA.