Mamadosewin (meeting place, walking together)

Inquiry on deficiencies or gaps in Senate policies on behaviours of individual senators

Inquiry on deficiencies or gaps in Senate policies on behaviours of individual senators

Hon. Lillian Eva Dyck rose pursuant to notice of December 12, 2019:

That she will call the attention of the Senate to the deficiencies or gaps in the policies of the Senate of Canada compared to other parliamentary bodies on behaviours of individual senators that constitute bullying, harassment, or sexual misconduct that occur during parliamentary proceedings.

She said: Honourable senators, I rise today to speak to my inquiry to bring the attention of the Senate to the deficiencies or gaps in the policies of the Senate of Canada compared to other parliamentary bodies on behaviours of individual senators that constitute bullying, harassment or sexual misconduct that occur during parliamentary proceedings. I have brought this inquiry forward, in part, as another avenue to continue to modernize our institution with respect to our policies and rules concerning the conduct of senators.

Colleagues, as honourable senators, we are entrusted and expected to act and behave in an honourable manner; that is, to conduct ourselves with the utmost dignity, respect and ethical standards expected of public officials. We serve Canadians in this privileged place and our conduct towards one another, the administration, the staff and the public should always live up to the highest of standards.

In the last Parliament, however, at the June 11, 2019 meeting of the Standing Senate Committee on Aboriginal Peoples, some members continually patronized, demeaned and belittled me in my role as chair of the committee. Their dishonourable conduct was in sharp contrast to that expected of a senator.

Honourable senators, each and every one of us has a right to be treated with honour, respect and courtesy. A safe and respectful environment allows us to carry out our Senate duties efficiently and effectively. Our former colleague Senator Joyal recently reminded us of what the title “honourable” means. He said:

As you will understand, senators are in a very privileged position in terms of title. You are “honourable” and you should act honourably not only when you are a senator but once you have left this chamber . . . .

He essentially meant that the actions of a senator should be honourable to preserve the authority, dignity and reputation of the Senate of Canada. The conduct of some members at the June 11 meeting, however, was not dignified and besmirched the reputation of the Senate. This damage to the Senate’s reputation was confirmed in an unsolicited email from a member of the public who attended the June 11 meeting. They wrote:

I must admit that I was deeply disturbed and disheartened by the tactics and verbal behaviour that bordered on abuse, especially by senator “X.” I feel that senator “X” and at times senator “Y” crossed the lines of dignity and basic respect towards you as Chairperson of that meeting.

Colleagues, as a matter of courtesy, I chose not to read into the record the names of the senators.

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Continuing with the email, they wrote:

This is NOT what I expected to find in a Senate committee which I understood to be a process of sober second thought amongst respectful peers.

Later, it continued:

. . . Senator Dyck I admire your grace, dignity and resilience under extreme pressure.

Colleagues, what happened to me at the June 11 meeting fits the definition of harassment in the Senate policy on the prevention and resolution of harassment in the workplace:

Any improper conduct by an individual, that is directed at and offensive to another person or persons in the workplace, and that the individual knew or ought reasonably to have known would cause offence or harm. It comprises any objectionable act, comment or display that demeans, belittles, or causes personal humiliation or embarrassment, and any act of intimidation or threat.

Colleagues, I lodged a complaint of harassment, but the Human Resources Directorate replied that they could not accept a complaint regarding a senator’s conduct that occurred during Senate proceedings, like a committee meeting.

After consulting with the law clerk and a September 2019 clarifying decision from the steering committee of CIBA, Human Resources concluded that the policy does not apply to a complaint of harassment by a senator when the conduct occurs as part of parliamentary proceedings, which are protected by parliamentary privilege and thus beyond the scope of the policy.

I initially tried to lodge a complaint of harassment through the Senate Ethics Officer based on a breach of the Senate Ethics and Conflict of Interest Code for Senators, which states:

7.1(1) A Senator’s conduct shall uphold the highest standards of dignity inherent to the position of Senator.

7.1(2) A Senator shall refrain from acting in a way that could reflect adversely on the position of Senator or the institution of the Senate.

7.2 A Senator shall perform his or her parliamentary duties and functions with dignity, honour and integrity.

However, according to a letter from the SEO dated July 31, 2019, a complaint of harassment can only be made after a finding of harassment has been determined via the Senate policy on harassment. But as I noted earlier, according to the Human Resources Directorate, the policy does not cover a senator’s conduct during parliamentary proceedings because they are protected by parliamentary privilege and thus beyond the scope of the policy.

In other words, honourable colleagues, there is no way for a senator to bring forth a complaint of harassment during Senate proceedings by another senator. This conundrum presumably applies to any other person who tries to lodge a complaint of harassment by a senator that occurred during parliamentary proceedings.

Colleagues, this is a serious gap, a loophole in the application of our harassment policy. This loophole leaves senators and other persons at risk for harassment by other senators during Senate proceedings in Senate committee meetings in Ottawa, and presumably elsewhere, when committees travel on Senate duties, and what about when senators travel with parliamentary associations?

Colleagues, much of the work of the Senate is done at committee meetings. The February 2019 CIBA Subcommittee on Human Resources report on modernizing our harassment policy states:

Those who harass others must be held accountable for their actions.

And later:

Perpetrators should face real consequences for their actions.

But the loophole in our policy allows senators to harass others during committee meetings without having to face any consequences. At committee meetings, senators, committee clerks and staff are not protected against bullying or harassment by senators. Surely this situation must be rectified as soon as possible to ensure that senators are held accountable for their conduct at committee meetings.

Colleagues, the application of privilege in the Senate harassment policy is one-sided. While the parliamentary privilege of the harasser is taken into account to protect them, that of the victim is overlooked. The victim too should have their privilege taken into account, so that they can carry out their parliamentary activities free from any undue interference or obstruction caused by harassment.

In the situation where one senator harasses another senator during a committee meeting, both have their individual parliamentary privileges and their privileges should be equal. However, the way our harassment policy works now, only the parliamentary privilege of the harasser is recognized. This is not equality amongst peers. This is clearly unfair to victims of harassment.

Colleagues, surely this serious gap — this loophole — which leaves senators and other persons vulnerable to harassment during Senate proceedings should be closed as soon as possible. I will now move to an example where this has been done.

In the United Kingdom, the House of Lords adopted a robust code of conduct in July 2019. Under their code, behaviour that amounts to bullying, harassment or sexual misconduct is a breach of their code under rule 17. In other words, preventing these behaviours is not just a matter of policy, they are explicitly included in their code of conduct. Furthermore, rule 17 applies to members performing their parliamentary duties and activities on the parliamentary estate or elsewhere. There is no loophole in the application of their harassment policies.

In addition, the British equivalent to the Canadian Human Rights Act has been incorporated into the code of conduct for the House of Lords. These human rights are just as valid as the parliamentary privilege of a senator. Their definition of harassment states:

Under the Equality Act 2010, harassment is related to one or more of the relevant ‘protected characteristics’ which include age, sex, race, disability, religion or belief, sexual orientation and gender reassignment.

Honourable colleagues, the House of Lords has adapted their rules to balance the privileges of the perpetrator and of the victim. Furthermore, their rules include the equality rights of the victim to be free from harassment. Thus, they have a fairer system than the Senate to define and deal effectively with bullying, harassment and sexual misconduct of their members in all aspects of their parliamentary work. I believe the Senate must do this as well.

I believe these are important changes that the Senate of Canada should emulate. We ought to ensure that senators meet the highest ethical standards of conduct, courtesy and mutual respect to all others with whom they interact during all our parliamentary activities. A senator should not be shielded by their parliamentary privilege from accountability for dishonourable conduct during Senate committee meetings.

Honourable senators, as noted in the many Senate reports concerning the policy, the code and the Meredith case, the parliamentary privilege of the Senate as a whole overrides the privilege of an individual senator, and as a whole, the Senate can invoke privilege to protect the dignity and reputation of the Senate.

The way forward to close the loophole in our harassment policy is clear. We as a body have the power of parliamentary privilege to amend our code to exempt the use of parliamentary privilege when a senator’s conduct constitutes bullying, harassment or sexual misconduct. By doing so, first, we would be holding senators to account during committee meetings; second, we would be creating greater fairness for victims of harassment; and third, we would move towards providing the openness and accountability necessary to reinforce public confidence in the way in which senators conduct themselves during Senate proceedings.

It is my hope that through this inquiry we may gather some consensus and perhaps devise and propose a motion to amend the Ethics and Conflict of Interest Code for Senators to close the loophole in our code.

As a first step, to close the loophole as soon as possible, we could consider a motion that instructs CIBA to reverse their decision which exempts senators from the harassment policy during Senate proceedings, such as at committee meetings.

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Another logical step would be to adopt a motion to amend sections 7.1 and 7.2 of our code to define and include bullying, harassment and sexual misconduct and to make such types of conduct a breach of our code. That would emulate The Code of Conduct of the U.K. House of Lords. The SEO would then be able to respond to complaints of bullying, et cetera, that occur during parliamentary proceedings, such as committee meetings.

Honourable senators, collectively we have the power of parliamentary privilege to regulate our own internal affairs. We are the architects of our ethics code. We can choose to amend the code so that conduct such as harassment, bullying and sexual misconduct are unacceptable, unethical behaviours for a senator during all Senate proceedings. Without adopting such changes, I fear that these types of behaviours will continue to disrupt the Senate’s ability to continue its work effectively and efficiently and in a respectful and honourable way by placing senators and even support staff in difficult circumstances.

Furthermore, if we do not close the loophole in our harassment policy, public confidence in the Senate will continue to erode.

In conclusion, I look forward to other interventions on this inquiry. It is my hope that, through this inquiry, we may gather some consensus and adopt a motion to have the Standing Committee on Ethics and Conflict of Interest for Senators amend our ethics code to ensure that senators are accountable for their conduct during all parliamentary proceedings. I believe that this is an important change that the Senate of Canada should embrace. If we make this change, the Senate will, one, reinforce public confidence in the Senate; two, provide a respectful and safe working environment for all of us to carry out our parliamentary work; and three, ensure that a senator’s conduct meets the highest standards of dignity inherent to the position.

Thank you. Kinanâskomitin.