Bill C-65 (Historical)

An Act to amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017, No. 1

Part 1 of this enactment amends the Canada Labour Code to strengthen the existing framework for the prevention of harassment and violence, including sexual harassment and sexual violence, in the work place.
Part 2 amends Part III of the Parliamentary Employment and Staff Relations Act with respect to the application of Part II of the Canada Labour Code to parliamentary employers and employees, without limiting in any way the powers, privileges and immunities of the Senate and the House of Commons and their members.
Part 3 amends a transitional provision in the Budget Implementation Act, 2017, No. 1.

[LCol (Ret'd) Bernie Boland]

Thank you very much for that particular question. Certainly, for me, I have been persistent. There is no doubt, from my perspective, that one of the basic approaches of the government is to ignore when they get something.

You identified that I raised a complaint based upon Bill C-65. I'm fundamentally waiting for the Minister of Labour to acknowledge receipt of my correspondence. She hasn't, so I am pursuing that.

As my co-panellists have said, there has to be an independent and autonomous opportunity for anybody who has the need to or requirement to make a complaint to advocate for it and to approach it in a suitable legal adversarial fashion, so that you can confront and address the individual who has perpetrated misconduct—harassment, human rights violations, racism and particularly sexual misconduct—and to address those, and those you are dealing with, in a system of accountability.

All three of those things are being denied to me. I'm capable of advocating. I've been denied that right to do it. I'm prepared to confront my respondent. I'm being denied that. There is no accountability for that. It needs to be separate and independent.

Thank you.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Thank you, Madam Chair. It's lovely to be back here. Of course, it would be better if we had a different topic that was not so difficult to hear.

I want to thank all of the witnesses for being on this call today, for joining us and for sharing their stories and their insight. It's a very important conversation. I'm glad I get the chance to hear some of this testimony.

I'd like to start with retired Lieutenant-Colonel Boland, if I may, and ask a series of questions.

Mr. Boland, you note in your testimony that you took several approaches to try to seek justice. That included submitting to the Federal Court of Canada an application for a judicial review of DND's grievance dismissal. You gave notice to the registrar of the Canadian Human Rights Tribunal to be a party to the tribunal hearing. You filed a complaint with the Minister of Labour on DND's breach of your Bill C-65 rights.

We are told that there are processes and policies in place. However, the people involved in upholding these processes are not following them. What oversight measures would you recommend so that these processes are indeed followed?

[Lieutenant-Colonel, Retired) Bernie Boland (As an Individual]

Madam Chair, thank you.

I'm Bernie Boland, retired lieutenant-colonel, who served honourably in the Canadian Armed Forces for over 30 years. For the past 12 years, I was an engineer in the public service. I retired in December 2020.

At the March 23, 2021, committee hearing, Minister Sajjan stated, “I take any allegation, regardless of rank or position, very seriously”, “We are committed to addressing all allegations, no matter the rank and no matter the position”, and “Sexual misconduct, harassment and inappropriate behaviour are not acceptable. We must call them out for what they are: an abuse of power.”

My testimony will present a concrete example of the difference between what DND practises and what it purports in addressing misconduct.

My case is comprehensively documented. The committee clerk has over 30 documents that chronicle the systemic and aberrant manner that senior executives who are commissioned to stamp out misconduct do not.

In the pursuit of justice, I followed the prescribed process. The defence officials assigned to assure that justice prevails robbed me of my right to advocate and denied me the opportunity to confront the offender in a balanced and equal justice for all, adversarial-based legal system.

In 2016, I reported wrongdoing and misconduct when an employee I had the privilege of supervising requested that I report the harassment and human rights violations perpetrated upon her by a senior engineering manager. I reported it. He was promoted. We faced reprisal and retaliation.

Her case is now at the Canadian Human Rights Tribunal awaiting adjudication on discrimination and deferential treatment due to age, gender, ethnicity and being a Muslim.

Once I reported the misconduct, I became an organizational threat. In retaliation, and to exonerate those responsible and culpable for the misconduct and human rights violations I reported, DND, in a formal departmental submission to the Canadian Human Rights Commission, secretly made me the scapegoat for the misconduct. I was made aware of DND's surreptitious actions by the woman harassed.

DND secretly making me a scapegoat was reprehensible, and I vehemently protested. On January 13, 2021, I formally submitted a complaint to Mr. Sajjan against the deputy minister, Jody Thomas, for condoning, as proper departmental conduct, DND's secret scapegoating of me.

Minister Sajjan's chief of staff acknowledged receipt of my complaint and assured me that it would be handled according to the applicable law. Jody Thomas is a Governor in Council appointee. No one from the Privy Council contacted me.

To ensure that my complaint against Jody Thomas did not drop off the radar, or more correctly wasn't institutionally ignored, I sent a February 7, 2021, registered letter containing my complaint against the deputy minister to Prime Minister Trudeau, with info copies to Katie Telford and the Clerk of the Privy Council, Ian Shugart. The letter's subject is “Defence Leadership Corrupts the Harassment Resolution Process to Protect the Harasser”.

No one from the PMO or Privy Council contacted me. However, Minister Sajjan's seriousness and commitment to addressing all allegations, regardless of rank or position, against the deputy minister, a Governor in Council appointee, was summarily and arbitrarily dismissed without investigation by Mr. Kin Choi, a subordinate of the deputy minister.

Though assured that the applicable law would be followed, Mr. Choi's expedient exculpation of his boss, Jody Thomas, broke the law. Specifically, Mr. Choi violated Bill C-65's workplace harassment and violence prevention regulations. Mr. Choi is responsible for the coordination and implementation of Bill C-65 in DND. He is also DND's functional authority for harassment prevention and resolution. Mr. Choi's conduct is rife with conflict of interest and bias.

After Mr. Troy Crosby, assistant deputy minister, materiel, deemed that DND secretly making me a scapegoat to the CHRC was proper conduct, I formally complained to Minister Sajjan, because the deputy minister did not take timely action on my complaint against her subordinate, Mr. Crosby.

Mr. Choi, a peer of Mr. Crosby's, summarily and arbitrarily dismissed, without investigating, these allegations. Mr. Choi also summarily and arbitrarily dismissed my grievance against Mr. Crosby for Mr. Crosby's failure to follow procedural fairness. The director general who made the submission to the CHRC secretly making me the scapegoat reports directly to Mr. Choi.

Notwithstanding the above, the most sinister aspect of this departmental behaviour, which must not be overlooked, is that DND overtly sanctions a covert program of secretly making scapegoats to the Canadian Human Rights Commission to exonerate those responsible and culpable for harassment and human rights violations. This is appalling. It must end immediately. The CHRC and the human rights tribunal must be made aware of it.

There is a cultural problem in the defence department, but there is institutional reluctance to distinguish between the approximate and ultimate cause of this problem. From my perspective, the ultimate cause is a breakdown and failure in leadership to act in an ethical, morally appropriate, determined and deliberate manner to arrest and eliminate misconduct. Instead, they too often conduct it and condone it.

Thank you, Madam Chair.

[The Chair, Liberal, Bryan May]

I can't agree with you more.

Prior to this Parliament, I was the chair of the human resources committee, and we oversaw Bill C-65, which was on violence and harassment in the workforce. I can assure you, I'm very aware of the trepidation and challenges of coming forward, so are all of the members of this committee. A big thank you, sir, for the work that you do.

I will wrap up here by simply reminding everyone that on the 19th, we will not be having a meeting. Our next meeting will be April 21, which will be hearing from witnesses on the study of support services and veteran caregivers and families. It's our last meeting on that study.

Scot.

[Lieutenant-Colonel, Retired) Bernie Boland (As an Individual]

Madam Chair, thank you for this opportunity to testify. I'm Bernie Boland, a retired lieutenant-colonel who served honourably in the Canadian Armed Forces for over 30 years. For the past 12 years, I was an engineer in the public service. I retired on December 30, 2020.

I'm testifying because DND has demonstrated an inability to act in an independent judicial fashion that honours due process, defends procedural fairness and respects the rule of law.

In 2016 I reported wrongdoing and misconduct when an employee I had the privilege of supervising requested that I report her harassment and human rights violations by a senior engineering manager. As compelled by oath and the code of values and ethics, I reported it. Her case is now at the Canadian Human Rights Tribunal awaiting adjudication on discrimination and deferential treatment due to age, gender, ethnicity and being a Muslim.

Once I reported, everything in the workplace changed. I faced reprisal and retaliation. I was silenced, denied due process and had my procedural fairness rights withheld. To date, external to DND, I have submitted to the Federal Court of Canada an application for judicial review of DND's grievance dismissal, given notice to the registrar of the Canadian Human Rights Tribunal to be a party to a tribunal hearing, and filed a complaint with the Ministry of Labour on DND's breach of my Bill C-65 rights. Internal to DND, I have submitted formal complaints and grievances, all to no avail.

I also provided to the deputy minister detailed analysis of the lack of due process, procedural fairness violations, conflict of interest and decision-maker bias. Additionally, I provided to both the DM and Minister Sajjan independent analysis—the Lowry report—from a retired RCMP fraud investigator that confirmed and corroborated decision-maker bias, conflict of interest, denial of due process and violations of procedural fairness. It was ignored. However, because I reported the harassment and human rights violations of the employee I supervised, DND secretly, in a formal departmental submission to the Canadian Human Rights Commission, made me the scapegoat to exonerate those responsible and culpable. This DND submission was made without my knowledge and with no opportunity to defend myself. It was condemnation without any representation.

Once I became aware of DND's secret scapegoating submission, I formally complained because the director general, workplace management, secretly made me the scapegoat; Troy Crosby, assistant deputy minister, materiel, determined that it was proper conduct for the DG to secretly make me the scapegoat; and Jody Thomas, the DM, condoned DND's secret scapegoating of me as proper departmental conduct. Without any investigation, DND dismissed my complaints.

I also submitted a grievance and a request for an independent ethical review on the myriad conflicts of interest, bias, denial of process and withholding of procedural fairness rights. DND summarily dismissed these.

DND's justification, as stated by assistant deputy minister of human resources, civilian, Mr. Choi, is the following: “Mr. Boland speaks to not having an opportunity to defend himself. It is to note that it is the parties to the CHRC complaint (the DND and the complainant to the CHRC) who are entitled to procedural fairness rights. The DND, as the respondent to the CHRC complaint has no responsibility to gather information from all potential witnesses: this is the responsibility of the CHRC appointed investigator. The conduct is therefore not considered improper. ...the complaint pertains to a single matter and does not meet the threshold for a severe incident. It will not be investigated.

He goes on to say that “the complaint pertains to a single matter and does not meet the threshold for a severe incident” and it will not be investigated. The CHRC submission is a protected document: “Mr. Boland does not have access rights to the submission and therefore Mr. Hooey could not have reasonably known that it would cause offence or harm, nor can it be considered ‘directed at’ Mr. Boland.”

Mr. Choi's justification makes it unequivocally clear to me that DND will not act in a procedurally fair fashion. DND takes no responsibility to ensure that human rights are fulsomely and truthfully addressed in DND by DND. DND considers it proper to secretly make those who dutifully report misconduct the scapegoat for the misconduct they report.

Despite its zero tolerance policy, DND will unilaterally and arbitrarily dismiss misconduct to excuse its obligation to investigate it.

DND believes institutional secrecy absolves its wrongdoing.

Since 2016, in my effort to be heard, have due process applied and be treated in a procedurally fair fashion, I have formally engaged many, including the Prime Minister; Minister Sajjan; my member of Parliament, Pierre Poilievre; the Minister of Labour; and the ombudsman.

Despite these efforts, DND refuses to honour its commitments, and render due process and respect for the rule of law.

On January 1, 2021, Bill C-65 and workplace harassment and violence prevention regulations came into force. The deputy minister assigned Mr. Choi coordination and implementation responsibilities. Mr. Choi violated my rights, enshrined in this legislation, by denying my right to an investigation.

On March 3, 2021, on the advice of my legal counsel, I requested the Minister of Labour to restore my rights and remedy this breach. I have yet to receive any acknowledgement from the Minister of Labour.

Thank you, Madam Chair.

[Commr Brenda Lucki]

Thank you for that question.

The independent centre for harassment resolution is there to, first of all, be compliant with Bill C-65, which came into play in January. It's also to provide a transparent and trusted system where people who want to bring harassment complaints can do so in a safe and non-retaliatory manner, as per Justice Bastarache's recommendations in that report.

It will be externalized. It will be outside of the chain of command as far as the investigators go, who will actually make the finding of harassment or not. That will be done externally, so it will increase the trust amongst our employees in that regard.

[Andréanne Larouche, Bloc, Shefford, QC]

Thank you, Madam Chair.

I want to thank Lieutenant-General Eyre and Lieutenant-General Allen once again for joining us today.

Yes, Mr. Eyre, I was referring to Bill C-65. I know that you're looking at workplace harassment and Bill C-77, which amends the National Defence Act and makes related changes. I gather that work will be done once the bills have been implemented. If you want to add anything, you can do so.

When I was talking about an external oversight committee, I was referring to a recommendation in Marie Deschamps' report, which dates back to 2015 and which recommended the creation of an independent body to handle reports of sexual misconduct in the Canadian Armed Forces.

According to a March 9, 2021, article in the Globe and Mail, the Government of Canada was looking at creating an independent body to investigate allegations of sexual misconduct, racism and discrimination. The article talked about current cases of sexual misconduct that affected various communities, including indigenous and LGBTQ+ communities, along with racialized women.

What structure is currently in place to handle reports of sexual misconduct and what's the reporting relationship between this structure and the Canadian Armed Forces?

[LGen Wayne D. Eyre]

Madam Chair, I think we're talking about Bill C-65 and Bill C-77. I can tell you right now that we're putting much effort into their implementation within the Canadian Armed Forces and DND in terms of victims' rights, workplace harassment and violence.... That all plays a part in the wider efforts to change our culture.

[Andréanne Larouche, Bloc, Shefford, QC]

Okay.

You also spoke about Bill C-65 and Bill C-77 and the implementation of certain measures.

Can you reiterate what you feel is most important in this area?

[LGen Wayne D. Eyre]

We have to learn why previous approaches did not work, learn from that and incorporate those lessons into our plan going forward.

As we go forward, I see us moving forward on two streams. The first stream is that any external review that looks at our organization we have to embrace and fully support with the realization that we don't have all the answers. Then we have to look at and embrace any recommendations that come out of that, including, if necessary, an independent reporting chain to give all our members the confidence—or to restore the confidence—that their allegations will be properly looked into.

Second, and of more urgency, are the internal actions we need to take. I have talked about listening and learning. Ensuring that victim support is in place is an immediate priority. We have to respect due process for the ongoing investigations.

With regard to Op Honour in particular, I believe—and I have heard from many—that perhaps this operation has culminated and that we need to harvest what has worked from there, learn from what hasn't, and go forward with a deliberate change plan, a deliberate plan that includes not only members of the Canadian Armed Forces but also our public servant colleagues as well.

We need to align our internal organizations, because we have disparate pockets that are focused on this problem, and perhaps better alignment is required amongst the different organizations.

We have to continue to implement the provisions of Bill C-65 and then Bill C-77 and, along with that, the restorative engagement that comes with the final settlement.

[Filomena Tassi, Liberal, Hamilton West—Ancaster—Dundas, ON]

This work is extremely important. You don't fix it with one piece of legislation. You fix it with a holistic approach. This committee knows that more than any other in terms of women.

Look what we have done for supporting women in the workforce. There's pay transparency to tighten the wage gap for the four groups, women being one of the groups included. There's skills training, making significant investments so that if I want to be a welder or I want to be a framer, I'll be given that opportunity. I've sat around tables with women who have had these opportunities opened to them because of the investments this government has made. I can tell you that they have gotten a second lease on life. They are over the moon. They are able to fulfill their dreams.

There's Bill C-65, the Employment Equity Act review, the commitments to child care—

[Filomena Tassi, Liberal, Hamilton West—Ancaster—Dundas, ON]

With respect to women, let me say this. It's not only this piece of legislation and the cost. You talk about the cost. What is the cost of inaction? What is the cost of doing nothing? Our children and our grandchildren will have to bear that, and the economy loses out. This is why our government has moved forward on so many measures: pay transparency, skills training, Bill C-65, an Employment Equity Act review, child care—

[Filomena Tassi, Liberal, Hamilton West—Ancaster—Dundas, ON]

There are measures we're doing through pay equity that are going to have women compensated equally to men. There is pay transparency, so that the gaps that exist will be corrected. Bill C-65 was introduced to prevent violence and harassment in the workforce because we want to ensure that people are comfortable at work and they're not being targeted in any way and not feeling safe. Mental health is a part of occupational health and safety.

All these measures we are taking are going to make the workforce fairer, and we think and we hope more open and transparent. Those are some of the measures we are taking.

Is there more work to do? Absolutely, and I look forward to working with you as we take on those measures.

[Filomena Tassi, Liberal, Hamilton West—Ancaster—Dundas, ON]

I will turn to my officials to get clarification with respect to the actual number and what is going to what program. Gary, I'll refer to you in a minute for that.

With respect to employment equity, it's my strong opinion that everybody deserves a fair chance to succeed.

With respect to women in the workforce and with COVID-19, I think we saw some advances prior, but there's no question there's more work to be done with respect to the promotion of women. The initiatives the federal government has taken, like the passing of Bill C-65 to prevent violence and harassment in the workplace, the proactive pay equity legislation that I just spoke about, pay transparency, the commitment with respect to child care, and the $5 billion that Minister Ng has talked about with the women entrepreneurship program, are all going to help encourage women to be in the workforce.

I agree with you 100% in saying that we all benefit when we increase women in the workforce.

Labour

[Anthony Housefather, Liberal, Parliamentary Secretary to the Minister of Labour]

Madam Speaker, workplace harassment and violence are completely unacceptable. That is why we introduced and passed Bill C-65 to protect employees from harassment and violence in federal workplaces, including Parliament Hill. With regulations now in force, this legislation will come into force on January 1, 2021.

By instituting new processes and protections under the Labour Code, the regulations will support all workers, including the ones mentioned by the hon. member, to ensure that our workplaces are more healthy and more safe.