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Statement on Ontario’s Proposed Bill 26 and the Need to Centre Students and Survivors

From Possibility Seeds’ Courage to Act Project

(Statement Updated December 8th, 2022: scroll to bottom)

All students deserve a safe educational environment to thrive in. Possibility Seeds’ Courage to Act project commends Ontario’s Ministry of Colleges and Universities for taking steps to address student safety and well-being through the proposed Bill 26: Strengthening Post-secondary Institutions and Students Act. This legislation has substantial power to impact the lives of those affected by gender-based violence (GBV) at Post-Secondary Institutions (PSIs) in Ontario. However, while an important start, this legislation leaves many gaps in student protections that would have unintended and harmful consequences should the Bill move forward without necessary amendments.

The proposed legislation could require Ontario PSIs to have meaningful employee sexual misconduct policies in place, and protect survivors by preventing the use of non-disclosure agreements (NDAs) when an employee leaves an institution to be employed at another institution. We were heartened to see that the spirit of the Bill aligns with many recommendations in Courage to Act’s resources, including A Comprehensive Guide to Campus Gender-Based Violence Complaints: Strategies for Procedurally Fair, Trauma Informed Processes to Reduce Harm and our recent white paper, What is the Role of Post-Secondary Institutions in Addressing Student-Instructor Relationships?

However, the sections of Bill 26 that address campus GBV are presently not as survivor-centred nor trauma-informed as they need to be to achieve their aims. This legislation should be amended to truly centre and build on the experience and expertise of student advocates, PSI employees, unions, community organizations, researchers, and grassroots survivor-led groups.

Courage to Act has identified some vital amendments needed in order for Bill 26 to protect and support those affected by GBV on campus. At present, this legislation lacks specificity and leaves significant gaps and room for loopholes in several areas. Some of our concerns are as follows:

  • The Bill includes inconsistent definitions and unclear language that leave things up for each institution to interpret for themselves, without providing the resources and tools to do so in a trauma-informed and comprehensive way;

  • It does not require mandatory education and training for the whole campus community, including employees. This is a important step in ensuring the integrity of the educational environment and preventing sexual violence;

  • It is too narrow, as the NDA clause only applies to post-adjudication NDAs;

  • It does not address the misuse of NDAs in student-to-student cases, where inequitable access to resources between students, and a focus on protecting institutional reputation, can leave survivors vulnerable;

  • It has no minimum standards attached to the requirement for a sexual misconduct policy;

  • It does not clearly define “adjudicators” and does not include investigators (internal and external) in subsection 5;

  • It does not explicitly recognize that employees and students can be subjected to harassment, have dual roles, or be engaged in experiential learning opportunities where the scope of policy can be unclear.

In order to successfully support all those affected by GBV on campus, Bill 26 needs to:

  • Integrate a trauma-informed, survivor-centric, student-focused approach throughout;

  • Amend the term “sexual abuse” to “sexual violence and sexual harassment” and include consistent language that all institutions can use regarding definitions of harm;

  • Regulate NDAs at all stages of the complaints process, not just after a decision is made;

  • Draw on clauses from PEI’s Non-Disclosure Agreements Act, specifically sections 4.2 (2) and 4.3 (3) which create opportunities for a trauma-informed approach to NDAs;

  • Consider dual roles, experiential learning, and the various power dynamic complexities that come with being a member of a campus community; and

  • Include minimum standards for sexual violence policies as developed by key stakeholders, as well as a mandate that PSIs create stand-alone statements on relationships between students and employees.

Further Recommendations to Address and Prevent GBV on Campus

The Ontario government needs an advisory committee on campus sexual violence with paid opportunities for students and survivors to work together to create minimum standards, education programs, and protocols to meaningfully address and prevent sexual violence and sexual harassment on campus. The Our Campus, Our Safety plan released in August of this year also provides 10 evidence-based calls to action that can be used as a roadmap for creating future legislation that centres the needs of post-secondary students. We also recommend consulting the work of High School Too in considering how to better protect students at the high school level.

We also urge the provincial government to ensure adequate and sustainable funding for addressing and preventing GBV on and off campus. The recent announcement by the federal government of a National Action Plan to End Gender-Based Violence provides an opportunity for the Ontario government to examine sexual violence and gender-based violence at PSIs and ensure funding priorities and the disbursement of funds will address this important issue.

To hear our concerns and recommendations on Bill 26 in greater detail, see the November 23rd press conference with Ziyana Kotadia (Western University student and member of the Safe Campus Coalition), Keneisha Charles (TMU student and member of the Consent Action Team at Consent Comes First), Jessica Look (President of the Ontario Undergraduate Students’ Alliance), Micah Kalisch (Founder and Director of PEARS: Prevention, Empowerment, Advocacy, Response for Survivors and student at University of Toronto), and Britney De Costa (Courage to Act):

Update: December 8th, 2022

Since this statement was originally published, the Ontario government has amended Bill 26 to include recommendations from Possibility Seeds and other community organizations and experts who were heard in Committee and in oral and written submissions. These amendments are a positive step to ensuring that Bill 26 achieves the aims at the heart of this legislation. We were pleased to see, in particular, the inclusion of updates to Article 16.1(5) which help regulate non-disclosure agreements and protect survivors’ right to tell their own stories. We specifically called on the Ontario government to draw inspiration from Prince Edward Island’s Bill 118 on how to effectively regulate non-disclosure agreements. We also recommended changing the term “sexual abuse” to “sexual violence and harassment.” While this recommendation was not fulfilled, the amendment does change the term “sexual abuse” to “sexual misconduct,” which allows for more flexibility in applying this legislation to various instances of violence.

While these are positive developments, Bill 26 still has a ways to go in protecting students on post-secondary campuses. We are still calling on the provincial government to do the following to ensure that everyone is safe on Ontario campuses:

  • Mandate all PSIs develop a clear standalone statement of expectations regarding student-employee relationships;

  • Require mandatory education and training for the whole campus community, including employees, that explicitly highlights the connection between the integrity of the educational environment and sexual violence;

  • Regulate NDAs across all sectors;

  • Explicitly recognize that employees and students can be subjected to harassment, have dual roles, or be engaged in experiential learning opportunities where the scope of policy can be unclear;

  • Resource a standing committee led by key stakeholders, including students, survivors, unions, gender-based violence advocates, and administrators, including by not limited to: the Council of Ontario Universities, Ontario Confederation of University Faculty Associations, Ontario Undergraduate Student Alliance, Canadian Federation of Students, PEARS: Prevention, Empowerment, Advocacy, Response for Survivors, Consent Action Team and Ontario Network of University Sexual Assault Centres to work together to create minimum standards, education programs, and protocols to address and prevent sexual violence and harassment on campus.

The amended Bill 26 effectively addresses many areas of concern for survivors on campus and their advocates, but there is still tremendous work to be done. Enacting these recommendations now will help students feel secure and safe in pursuing post-secondary education in Ontario.

__________

Suggested Reference : Courage to Act. (2022, November). A Statement on Ontario’s Proposed Bill 26 and the Need to Centre Students and Survivors. Courage to Act. www.couragetoact.ca/blog/bill26.

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