Bill S-232, the Can’t Buy Silence Act, would create a new Act and amend the Financial Administration Act and the Parliament of Canada Act. Its stated goal is to report on the use of certain non-disclosure agreements (NDAs) and limit when public money can be used for them. These are proposed rules, not provisions shown as in force in the supplied material; if enacted, the Act would start 60 days after royal assent.
Federal public-sector entities covered by the Public Accounts would have to provide annual NDA counts and the total dollar amount of agreements containing NDAs. The President of the Treasury Board would have to report this information to Parliament and certify that the entities’ information is accurate.
Federal departments, departmental corporations and Crown corporations could enter into an NDA with a complainant only after the complainant had an opportunity for independent legal advice and then made a specific, voluntary written request. The bill also lists disclosures the NDA could not prevent, including communications with legal, health and support providers.
Public money could not be used by those federal entities to litigate NDAs against complainants. For grants and contributions to organizations outside the Public Accounts, the authority to provide the money would have to be used to prevent it funding certain settlements that include NDAs or litigation against complainants.
Organizations outside the Public Accounts receiving federal grants or contributions would have to report annually to the President of the Treasury Board on their NDA counts and the total dollar amount of agreements containing NDAs. The grant or contribution agreement would have to require this reporting.
Rules would also restrict NDA use and litigation funded with public money by specified parliamentary offices and bodies. A parliamentary committee would review the Act and how it works every two years, starting as soon as feasible after its second anniversary.
Complainants dealing with covered federal entities: An NDA would require your specific, voluntary written request after you had the opportunity to get independent legal advice, including advice about other ways to protect personal information. The listed exceptions would allow certain disclosures even if you signed an NDA.
People dealing with federal departments, departmental corporations or Crown corporations: These entities could not use public money to litigate an NDA against a complainant.
Organizations receiving federal grants or contributions: Their funding agreement would have to require annual, identity-protecting reports about NDAs. Funding authorities would have to take steps to prevent the public money from paying for settlements about harassment, violence or prohibited-ground discrimination if the settlement includes an NDA, or for litigation against complainants.
People covered by parliamentary workplaces and services: The bill names the Senate’s Committee on Internal Economy, Budgets and Administration; the House of Commons Board of Internal Economy; the Parliamentary Librarian; and the Parliamentary Protective Service. Their use of public money for NDAs or litigation would be restricted under the bill’s conditions.
The general public: The bill would not directly change taxes, create a compensation benefit, or ban all NDAs. It would require some reporting to Parliament, with information presented in a way not likely to identify a person.
The bill would require annual reporting and Treasury Board reporting and certification, but gives no estimate of staffing or other administrative costs.
It would restrict some uses of public money for settlements and litigation. The material does not estimate how much spending this could affect.
It does not set a tax, fee, fine or appropriation.
The parent Acts were not supplied, so the current rules and the precise changes to them could not be checked against existing law.
The bill does not explain how funding authorities must ensure grant money is not used for the restricted purposes, or how compliance would be checked.
It does not set out a process for collecting, checking or correcting reports. It also does not explain how the President of the Treasury Board would verify the information before certifying it.
The bill requires some information to be reported in a way not likely to identify a person, but does not explain how that standard would be applied.
The definition of “harassment and violence” includes actions or conduct that may be prescribed, but the supplied material does not say what, if anything, would be prescribed.
A possible argument for the bill is that reporting would make the use and dollar value of NDAs in covered public-sector entities more visible to Parliament.
Requiring a complainant’s specific, voluntary written request after an opportunity for independent legal advice could help ensure an NDA reflects that person’s informed choice.
The listed disclosure exceptions would preserve ways to seek help, report information where the law protects or requires disclosure, and make some forms of artistic expression.
Restricting public money for certain settlements and litigation could limit the use of public funds to secure or enforce silence about alleged harassment, violence or discrimination.
One concern is that annual reports and the parliamentary review do not, by themselves, set out a complaint-handling process, deadlines, or a way to challenge an NDA.
The bill does not explain how funding authorities would prevent restricted uses of grant money or what happens if an organization fails to report.
Reporting could create administrative costs for government and grant recipients, but the material gives no estimate.
Even with identity-protecting reporting, collecting and publishing NDA counts and agreement amounts may raise concerns about protecting sensitive information. The bill does not explain how that risk would be assessed.