Canadian Heritage Committee on April 27th, 2023

[Julie Macfarlane]

Yes, absolutely. There is a methodological problem here, as I would say as a researcher, which is that we're talking about secret settlements. How you collect data on secret settlements is of course very problematic. We've done it by allowing people to be anonymous in both telling their full stories and completing our survey. As well, quite a lot of material has been uncovered by various freedom of information requests over the last couple of years by journalists.

I think it will be imperative that an inquiry includes looking at the use and prevalence of NDAs—I think it will shock even the members of the committee—in sports organizations and beyond. It will be important to say, for example, that NDAs were signed that would ordinarily prevent people from even saying they signed an NDA, because, of course, you will realize that even saying you signed an NDA is a breach of an NDA. It will be very important to release people for that purpose. Otherwise, there inevitably will be a fear about people coming forward.

The committee may know that in Manitoba we already had a bill moved to committee there. It's actually just starting all over again now. It's about to go to committee again, because there was not sufficient time for it to be completed last session. In that committee, we made it clear to people who were in touch with us constantly about the use of NDAs and their silencing via an NDA that they could speak without fear of consequences, because they had parliamentary privilege to do so. That session was absolutely amazing. It is available for people to watch on our YouTube channel.

I think the inquiry needs to make it clear that people can come forward and speak to them about being bound by an NDA with no consequences to them, because people literally live in fear. They live in fear of having the money that they may have been given to compensate for the harm taken away. They also live in fear that their name will then be made public. They don't want their name made public. They want to maintain their own privacy and to control that as they would wish to do, which is exactly, for example, what the federal government is now doing in relation to criminal publication bans. Give the victims the right to control how public they want to be.

I hope the inquiry will look at the use of NDAs, but it will have to be with some kind of amnesty or release for people who sign them.

[Sébastien Lemire, Bloc, Abitibi—Témiscamingue, QC]

Mrs. Macfarlane, you clearly anticipated many of my questions. I thank you for that very complete response.

Mrs. Da Silva Rondeau, who we heard from a bit earlier this week, as well as others, also talked about the impact that lawsuits can have and the impact of the lack of support resources for the athletes.

How can we ensure adequate protection for the victims who dare to speak out and, more specifically, how can we involve them in the context of an independent public inquiry?

[Julie Macfarlane]

I think an inquiry will help, but I also—I'm sorry to be repetitive—have to return to the fact that what will really help is taking away the current right to force an NDA on somebody in order for them to secure their own privacy.

One of the questions asked in our survey, for people who decided not to file a formal complaint of discrimination, harassment or sexual harassment, was why they did not do that. Over 30% now.... The survey is increasing all the time. It's currently at about 1,200 people, which is a pretty respectable number. One-third of the people who said they didn't complain said it was because they anticipated they would have to sign an NDA and they didn't want to sign an NDA.

Increasingly, Canadians understand just what that means. It means that you are silenced for the rest of your life. Obviously, these folks aren't being followed around with video cameras, Sébastien, but people become very fearful. There are all kinds of mental health consequences that flow from this, as well, that we also have a lot of data on.

I think it will be critical to simply take away the possibility of an NDA in the future, which is what our legislation is doing, and to restrict that to the use of intellectual property and trade secrets, which was what this was originally designed to do in the 1980s.

[The Chair, Liberal, Hedy Fry]

You have 30 seconds.

[Julie Macfarlane]

NDAs were first developed in Silicon Valley during the tech boom. I think most people here will realize that there were good reasons to try to get beyond the existing restraint of trade common law and enable them to keep their commercial innovation information secret forever. That's what NDAs were for.

Now we say that any kind of misconduct is a “trade secret”. That stretches the point.

[The Chair, Liberal, Hedy Fry]

Thank you, Dr. Macfarlane. I think your time is up.

Sébastien, thank you.

Now I will go to the New Democrats and to Peter Julian.

Peter, you have six minutes, please.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Thank you very much, Madam Chair.

I also want to thank the witnesses who are here today.

You contribute a great deal, all three of you, to the committee's deliberations.

The federal government just renewed funding for Hockey Canada, even though it did not change its position on non-disclosure agreements. I think this renewal is premature.

I will ask you the same question I asked earlier.

Do you think it is healthy for the federal government to allow Hockey Canada to believe that even though an organization has not changed its ethical stance on non-disclosure agreements, it can still get public funding?

Hockey Canada is now receiving funding from the federal government, after a suspension, even though they have not backed off from signing non-disclosure agreements. This is something that came up repeatedly in the Hockey Canada hearings we have had.

My question is very simple. Is it appropriate for the federal government to be financing Hockey Canada when they have not made any sort of commitment to stop the pressure of signing non-disclosure agreements on victims of sexual abuse or sexual violence?

[Julie Macfarlane]

May I answer?

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Yes, absolutely. It's addressed to you.

Thank you, Dr. Macfarlane.

[Julie Macfarlane]

Thank you very much.

I was absolutely shocked when I heard. I was actually away in the United Kingdom when the news came through a few weeks ago that Hockey Canada was going to get funding back without having said anything about NDAs.

In fact, a kind of throwaway comment was made by the Hockey Canada CEO to the committee last summer when the hearings began that, if anybody wanted to be released from their NDA, it was no problem—they should just get in touch. I cannot tell you what a disingenuous statement that is, because how are people supposed to get in touch? Are they supposed to google Hockey Canada? Who do they ask? How do they do this? Of course, these are all people who are very fearful of the consequences of breaking their NDA.

I think the very first thing Hockey Canada should have done—they should have done this last summer—was say, “We shall formally release people from existing non-disclosure agreements, so they can contribute to the work of the study and the work of the committee”. They should have done that, and they still can do it by writing directly to each of the people. They know who the people are. They could write to them directly to say that they will tear up their non-disclosure agreements.

The second thing they should do is undertake to not use them again in the future. Otherwise, nothing is going to change, frankly, and it will all be pushed back under the carpet again. They can make agreements for confidentiality on the amount of money they paid. There might be special circumstances they want to agree to in terms of the public use of some of that information, but gagging victims without their being able to speak to anybody, and of course unable to then warn others about the people whom they have experienced.... This has become so incredibly effective in enabling these perpetrators to reoffend. We see that over and over again.

There is much research now—and I'm sure my colleague witnesses are very aware of this—that shows that acts of violence, sexual violence and harassment are carried out by a very small number of people over and over again. This is very rarely a one-off occurrence. We already know that people who have done this once are very likely to do it again, yet we're going to cover that up so they can do it again.

I believe Hockey Canada should release people immediately by writing to them, but not by saying, “Hey, get in touch; we'll think about it”. Write to them and release them.

Secondly, they should have been asked before funding was restored to undertake to never use a non-disclosure agreement again.

I did say at the beginning that the voluntary pledges are a very important part of culture change in relation to NDAs, but I think the reality is that secret settlements have to be outlawed because we cannot monitor what is going on behind those closed doors.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Thank you, Dr. Macfarlane.

[The Chair, Liberal, Hedy Fry]

You have one minute, Peter.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

I should say that Hockey Canada actually did pledge to release the victims from the non-disclosure agreements and they have not followed up. In fact, they have doubled down and have suggested that victims somehow all want to sign these gag orders, which of course, as you have disclosed, is disingenuous at best.

You may have heard the testimony from Canada Soccer and the appalling, horrific case of Bob Birarda, where Canada Soccer simply neglected its obligations to the victims and allowed this sexual offender access to more victims.

Internationally, you've cited some countries that have non-disclosure legislation. In those countries, do the national sports organizations abide by those laws as well? Are you aware of a textbook case of a country that has obliged its national sports organizations to stop the practice of gagging the victims of sexual abuse and sexual violence through non-disclosure agreements?

[Julie Macfarlane]

Looking at the United States as an example, there are now 17 states that have passed legislation to restrict the use of non-disclosure agreements in cases of sexual violence, misconduct, discrimination and so forth. We have all this information on our website. You can look at our tracker.

This legislation—

[The Chair, Liberal, Hedy Fry]

Thank you, Dr. Macfarlane.

I am sorry, Peter, but we are now 40 seconds over your six-minute mark.

We could go an extra 15 minutes. I would like to get the committee's sense on this. Can you stay another 15 minutes?

We are almost at 5:30 when this meeting is officially supposed to end. We could go another 15 minutes. It would mean that we would do a round of three, three, 1.5, 1.5, and three and three. You know what I'm talking about.

Do I have agreement for that?

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

Chair, I think there was an agreement amongst the committee members. Some people have flights to get to on Thursday night, and we agreed that we would end at 5:30.

Although I found the witnesses fascinating and would love to have links to all of the bills that have been put forward provincially and the draft one federally, I think we have to cut it here.

[The Chair, Liberal, Hedy Fry]

All right, Ms. Gladu.

Does anyone disagree with Ms. Gladu?

I can see the floor. I don't see any hands being raised, so it's obvious that everyone is in agreement.

I want to thank the witnesses. As Marilyn said, it's fascinating. The issue of non-disclosure is a fascinating one, and I think the balance, as we've always heard, if you don't do a non-disclosure, people won't want to come forward. Victims wouldn't want to come forward and speak about their problems because they would be afraid. There are two sides to the story, but what you were saying makes a lot of sense.

I want to thank all three of you for coming and presenting. Thank you for the work you're doing, and thank you for some very interesting testimony.

I now declare the meeting adjourned.