Good evening, and thank you very much for this opportunity to speak on Bill C-65 on behalf of the National Association of Women and the Law.
NAWL is an incorporated not-for-profit feminist organization that promotes equality rights of women in Canada through legal education, research, and law reform advocacy.
We want to begin our comments this evening by congratulating the government for prioritizing action to strengthen the prevention of and response to violence and harassment, including sexual harassment, in federally regulated workplaces and on Parliament Hill. This is consistent with the federal government's constitutional obligation under sections 7 and 15 of the Canadian Charter of Rights and Freedoms and with Canada's domestic and international human rights obligations.
We're also very appreciative of the support that's been given to this issue by all the parties and by the broad agreement that tackling sexual harassment is an important component of any gender equality agenda.
The Supreme Court of Canada ruling in the 1989 Janzen v. Platy case confirmed that sexual harassment is a form of sex discrimination. Put very simply, sexual harassment is unlawful and it's a violation of women's rights. Nearly 30 years later, however, in Canada, as elsewhere, women continue to overwhelmingly be the targets of sexual harassment at work, and men are overwhelmingly the perpetrators.
An intersectional feminist analysis also highlights that violence and harassment, including sexual harassment, are not experienced in the same way by all women, and that racialized, indigenous, and disabled women are particularly at risk. Therefore, approaches to preventing and responding to sexual harassment must be framed in response to these realities.
While the good intentions of Bill C-65 are clear, we've identified a few key areas where critical content is not yet included or is open to a range of interpretations. Because of the particularities and the pervasiveness of gendered power dynamics in politics, our comments this evening will focus on some of the aspects of the bill that are particularly important to preventing and responding to sexual harassment on Parliament Hill. These include the following.
The legislative intent of achieving gender equality and security in the workplace could be explicitly referenced in Bill C-65. The law, and not the regulations that follow it, should include definitions of the violence, including gender-based violence, in all its forms across the continuum of harassment and sexual harassment that occur in the workplace, which Bill C-65 seeks to target.
Customized approaches to respond to the unique causes of different forms of violence, including gender-based violence, sexual harassment, and other forms of harassment, are required, as both international human rights law and the Canadian charter impose on Canada the duty to eradicate all forms of discrimination against women. However, in its current form, there is no distinction between sexual harassment and other forms of workplace harassment and violence.
Bill C-65's focus on strengthening health and safety approaches should be an additional mechanism that's available to victim survivors of sexual harassment, including on the Hill, and not be seen as a mandatory prerequisite to or a replacement of other mechanisms.
The complaint process under Bill C-65 should not delay or have any negative impact on the complainant's ability to access other mechanisms, including under the Canadian Human Rights Act as well as collective agreements or, in reporting crimes committed in the workplace, through the criminal justice system. Adding a clause that confirms that nothing in the act precludes recourse under the Canadian Human Rights Act would provide clarity on this point. Ensuring that Bill C-65 bolsters rather than hinders women's access to justice is particularly important, given the range of remedies available to a complainant under other processes that are not available under Bill C-65—and we've just heard some of those same comments.
Because Bill C-65 does not include details about the investigation process that will be used, it's not possible yet to assess whether the process proposed will be appropriate for and effective on Parliament Hill. The question of who will be appointed to undertake sexual harassment investigations and make determinations is an incredibly important one. The independence, expertise, and confidentiality of investigators will be even more important in an explicitly political environment such as that of Parliament Hill. If women are to trust the system and report, there can be no perception of any potential conflict of interest by the competent person appointed or by any parties involved in the investigation or decision-making.
Good options for ensuring independence, removing bias and partisanship by any party, and minimizing the possibilities of conflict of interest in sexual harassment cases, especially those involving parliamentary or political staff, include either the establishment of an independent body to govern investigations or the establishment of a list of independent external investigators with specific expertise on human rights, sexual harassment, gender-based violence, and all the forms of harassment and violence that take place in a workplace.
The model chosen should adopt a human rights framework and will need to be adequately funded to ensure appropriate support for victim survivors and the timely determination of complaints. At least half of the competent persons or investigators should be women, and the list of those who can be called on to conduct an investigation should reflect the population and include indigenous women and men, women and men with disabilities, racialized women and men, and LGBTQ2 people. Supportive roles can be identified for department of labour staff and/or tripartite workplace committees. For example, they could be used to review and agree on the list of external experts eligible for appointment.
Significant attention has been paid in Bill C-65 to ensuring the confidentiality of complainants, which is critical; however, clarifications may be useful to ensure that the approach to confidentiality doesn't inadvertently help harassers and harm women. Procedural fairness and respecting a victim survivor-centred approach necessitate that the complainant must be provided with a copy of the entire competent persons report and recommendations. This is a crucial amendment that should be made to Bill C-65.
NAWL supports the call for a provision to be added to Bill C-65 that will require all federally regulated workplaces and those on Parliament Hill who will also be bound by the Canada Labour Code provisions to publish annual statistics on the number of incidents of sexual misconduct reported to them, the outcome of each complaint, and any financial settlement paid.
Finally, it is important that any government measures to combat sexual harassment and violence be as effective as possible. NAWL therefore recommends that Bill C-65 provide for a formal review of the new federal regime within three years of its enactment. Because laws and regulations governing sexual harassment in legislatures have only recently begun to emerge in Canada and elsewhere, further study of the human rights-based approaches to, and effectiveness of, measures adopted at other levels of government and in other countries to prevent and respond to sexual harassment in their legislatures would be a helpful component of such a review.
I'll end my comments here. Along with my colleague, Professor Martha Jackman, who is co-chair of the NAWL national steering committee, I look forward to answering any questions you might have.
Thank you.