(Above is a portion of the internal investigation submitted to the Congress of Aboriginal Peoples in response to sexual harassment allegations against Senator Patrick Brazeau when he was national chief of the organization. Brazeau says the report’s conclusion cleared him of the allegations. The lawyer for Alisa Lombard says the report does not totally clear the Senator. The above report was filed in Federal Court as an attachment to Lombart’s affidavit)
By Jorge Barrera
APTN National News
A lawyer representing Senator Patrick Brazeau says he would be “surprised” if the Federal Court sided in favour of a former staffer at an Aboriginal organization seeking to overturn a Canadian Human Rights Commission decision to dismiss her sexual harassment complaint against the Senator on jurisdictional grounds.
Andrew Lister, founding partner with Ottawa law firm Lister-Beaupre, says he’s “confident” the Federal Court will side with Brazeau in the ongoing court battle which has dragged on for over a year.
“We are fully confident we will be successful in front of the Federal Court just as we were successful in front of the Human Rights Commission on the jurisdictional issue,” said Lister. “We would be most surprised if in this instance they decided to overrule the Canadian Human Rights Commission.”
Lister was responding to story published online by APTN National News Wednesday detailing the harassment allegations levelled by Alisa Lombard, a lawyer who once worked for the Congress of Aboriginal Peoples, against Brazeau, who was national chief of the organization.
APTN National News contacted both Brazeau and Lister the same day, but both were unavailable for comment on the story before publishing.
Lombard’s lawyer, Max Faille, a partner with Gowling’s in the law firm’s Ottawa office, said it’s a bit premature for Lister to be predicting victory.
“I suppose that everyone has confidence in their position or they wouldn’t be advancing it,” said Faille, who was also unavailable for comment Wednesday. “They were successful in round one and sometimes things change in round two and round three.”
The sexual harassment complaint stemmed from one alcohol-drenched office Christmas party on Dec. 20, 2007. The incident is detailed in several documents, including two human rights complaints, a third-party investigation report, and a letter written by Lombard to CAP’s board, which were all filed in Federal Court.
Lombard, who is now a lawyer, is trying to convince the Federal Court that the CHRC erred in its decision to dismiss her claim on grounds it fell outside its jurisdiction because CAP is an Aboriginal organization dealing exclusively in federal issues.
No date has yet been set for a full court hearing.
She initially filed her complaint with the Ontario Human Rights Commission and the Ontario Human Rights Tribunal decided the complaint also fell outside its jurisdiction.
Lister said Brazeau was cleared of the sexual harassment allegations by an internal investigation conducted by a third-party firm ADR Chambers, which was hired by CAP.
“Allegations were made against the employer and Senator Brazeau and at the end of the investigation he was found not to have violated any harassment policy in place at CAP,” said Lister, who never saw the final report, only an executive summary. “He has not done anything wrong at any time.”
CAP, however, had “no specific definition of what constitutes harassment” within its policy, according to a portion of the 32-page, “confidential” report by ADR Chambers, which was filed in Federal Court.
The investigators, Joy Noonan and Roger Beaudry, said they based their analysis on the events on how the term was defined in provincial human rights cases and by the Ontario Human Rights Commission.
The investigation focused on three aspects of Lombard’s complaint, including a botched kiss, the conversation that led to it and the text messages that followed. They analyzed each of the aspects separately and concluded that each, by itself, did not meet the standard for sexual harassment.
“Taken as a trio, the three key allegations in this complaint, if proven, would form a course of conduct or pattern of behaviour that would constitute sexual harassment,” the investigators wrote in their conclusion.
The report continued:
“However, as also set out above, when examined individually and then further placed under the spotlight of the need for clear and cogent evidence in support of each allegation, we are left in our view with two very different takes on a sexually charged series of events at a Christmas party where both parties (and all witnesses) were drinking. Alcohol fuelled much of what took place in the incidents described and we believe that alcohol likely ultimately propelled the CAP’s most senior member to make a stupid move.”
Faille said he doesn’t believe the internal investigation completely absolved Brazeau of the allegations.
“We don’t think that is the case at all,” he said. “If the Senator did nothing wrong and has nothing wrong and had nothing to hide, the best thing for the Senator would be to go forward and have that hearing instead of relying upon a convenient jurisdictional argument.”
Brazeau’s decision to fight the harassment complaint on grounds that CAP falls outside of federal jurisdiction flies against the very thing he championed when he was national chief of the organization, said Faille.
“The challenge to federal jurisdiction is against the interests of the people that CAP represents and the people that Senator Brazeau had been elected to represent,” he said. “CAPs position has been that the federal government has a Constitutional responsibility for all Aboriginal people and not just status people on reserves.”
The harassment complaint against Brazeau has not been proven or tested in court
The harassment complaint, according to Lombard’s account, which is supported by the third-party investigation, stems from a night that began with wine, beer and shots at a bar on Montreal Rd. Called Caps.
The drinking started at about 5 p.m. and Brazeau found himself sitting next to Lombard who was drinking wine along with a “shot or two,” according to the documents.
“I noticed that additional drinks continued to be brought to me. I suspect it was Mr. Brazeau because when I inquired as to my bill, he expressed that I should not worry about it,” wrote Lombard. “I did not drink the additional glasses of wine.”
The conversation, which initially centred on work-related issues, turned to the personal when the then-married Brazeau started discussing his marital difficulties with Lombard, according to her human rights complaints.
Brazeau also wanted to talk about Lombard’s boyfriend and at one point asked her, “Have you ever cheated on your boyfriend?” Lombard alleged, according to the court documents.
“During the course of the course of the discussion, he would speak about work and his ability to ensure my overall advancement,” states Lombard.
The investigator’s report states that “Mr. Brazeau drank heavily” that night and the “conversation on the subject alleged happened.”
The investigators noted that, “it was not an appropriate conversation for a superior to be having with any staff. As chief, Mr. Brazeau ought to recognize that his position of authority creates a power imbalance with any subordinate.”
The investigators, however, said it was unclear whether Brazeau would have realized the subject matter of the conversation was making Lombard uncomfortable.
“Ms. Lombard says she told Mr. Brazeau she didn’t like the question and he in turn totally denies that and says she was a willing participant,” the investigators wrote.
Later, standing outside the bar, a “drunk” Brazeau, allegedly grabbed Lombard by the back of the head and pulled her towards his lips for a kiss.
Lombard states that she turned and “froze.”
His lips missed their target, landing on her cheek. Brazeau then made a “mouawh” sound.
“It all happened very quickly. I backed away and said, ‘what the hell?” stated Lombard in one of the human rights complaint form filed in Federal Court.
The investigators found Lombard’s account of the kiss to be credible. The report noted that Brazeau “was very drunk and slurring his speech at this time.”
The investigators found that the kiss “was certainly stupid and inappropriate,” and a rather a “goofy Christmas-time kiss from a happy inebriated party-goer.”
The next day, Lombard said she missed 15 calls on her cell phone from an unknown number.
“For fear that it was Patrick, I didn’t answer. I felt sick to my stomach,” she stated, in one of the human rights complaints.
Then Brazeau, who had forgotten his winter boots that evening, began texting her “Pas de botte d’hiver.”
Lombard stated she believes the text messages were a double-entendre based an inside office joke and a colloquial French expression “une bonne botte,” meaning a “good lay.”
She said Brazeau sent her the message three times.
The investigators found the messages could not constitute sexual harassment because it was unclear whether the messages meant more than what they stated on the surface.
“However innocent the action (and it may well have been innocent), it does not take away the impact that this had on the complainant. She was genuinely hurt by what appeared to her at least to be a course of action (with the text messages) of harassment against her,” the investigators said.
They also noted that Lombard continued to work for CAP after the incident and invited Brazeau to the home of her mother for a lobster supper.
Lombard, however, stated in a submission to the CHRC, which is also filed in court, that the investigators never met with any of the witnesses she suggested.
In a sub-plot of the ongoing court case, the Federal Court of Appeal awarded Brazeau costs after Lombard, who was representing herself at the time, committed a procedural error on a motion seeking time extension for cross-examination.
The exact dollar figure for the costs has yet to be set.