OGGO Committee Meeting

37th PARLIAMENT, 3rd SESSION

Standing Committee on Government Operations and Estimates

EVIDENCE

CONTENTS

Tuesday, May 11, 2004

¿

0905

The Chair (Mr. Paul Szabo (Mississauga South, Lib.))

Mr. Pierre Nollet (Vice-President, General Counsel and Corporate Secretary, CBC/Radio-Canada)

¿

0910

The Chair

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, CPC)

¿

0915

Mr. Pierre Nollet

Mr. Paul Forseth

¿

0920

Mr. Pierre Nollet

Mr. Paul Forseth

The Chair

Mr. Paul Forseth

The Chair

Ms. Monique Guay (Laurentides, BQ)

Mr. Pierre Nollet

¿

0925

Ms. Monique Guay

Mr. Michel Tremblay (Vice-President, Strategy and Business Development, CBC/Radio-Canada)

Ms. Monique Guay

The Chair

Mr. Robert Lanctôt (Châteauguay, Lib.)

¿

0930

Mr. Pierre Nollet

Mr. Robert Lanctôt

Mr. Pierre Nollet

Mr. Robert Lanctôt

Mr. Pierre Nollet

Mr. Robert Lanctôt

Mr. Pierre Nollet

Mr. Robert Lanctôt

Mr. Pierre Nollet

Mr. Robert Lanctôt

¿

0935

Mr. Pierre Nollet

Mr. Robert Lanctôt

Mr. Pierre Nollet

Mr. Robert Lanctôt

Mr. Pierre Nollet

The Chair

Mr. Leon Benoit (Lakeland, CPC)

Mr. Pierre Nollet

¿

0940

Mr. Leon Benoit

Mr. Pierre Nollet

Mr. Leon Benoit

Mr. Pierre Nollet

Mr. Leon Benoit

Mr. Pierre Nollet

Mr. Leon Benoit

Mr. Pierre Nollet

Mr. Leon Benoit

Mr. Pierre Nollet

¿

0945

Mr. Leon Benoit

Mr. Pierre Nollet

The Chair

Mr. Alex Shepherd (Durham, Lib.)

Mr. Pierre Nollet

Mr. Alex Shepherd

Mr. Pierre Nollet

Mr. Alex Shepherd

The Chair

Mr. Pierre Nollet

The Chair

Mrs. Lynne Yelich (Blackstrap, CPC)

¿

0950

M. Pierre Nollet

Mrs. Lynne Yelich

Mr. Pierre Nollet

Mrs. Lynne Yelich

Mr. Pierre Nollet

Mrs. Lynne Yelich

Mr. Pierre Nollet

The Chair

Mr. Ken Epp (Elk Island, CPC)

Mr. Pierre Nollet

The Chair

Mr. Pierre Nollet

Mr. Ken Epp

Mr. Pierre Nollet

¿

0955

Mr. Ken Epp

Mr. Pierre Nollet

The Chair

Ms. Monique Guay

Mr. Pierre Nollet

Ms. Monique Guay

The Chair

Mr. Robert Lanctôt

À

1000

The Chair

Mr. Pierre Nollet

The Chair

Mr. Pat Martin (Winnipeg Centre, NDP)

Mr. Pierre Nollet

The Chair

À

1005

Mr. Pierre Nollet

The Chair

Mr. Pierre Nollet

The Chair

À

1015

The Chair

Mr. Pat Martin

À

1020

The Chair

Mr. Pat Martin

The Chair

Mr. Paul Forseth

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Paul Forseth

À

1025

The Chair

Mr. Ken Epp

The Chair

Mr. Ken Epp

The Chair

Prof. Paul Thomas (Professor, University of Manitoba, As Individual)

À

1030

À

1035

À

1040

The Chair

Mr. Paul Forseth

À

1045

Prof. Paul Thomas

The Chair

Ms. Monique Guay

Prof. Paul Thomas

Ms. Monique Guay

Prof. Paul Thomas

The Chair

À

1050

Ms. Anita Neville (Winnipeg South Centre, Lib.)

Prof. Paul Thomas

The Chair

Mr. Alex Shepherd

Prof. Paul Thomas

À

1055

The Chair

Mr. Robert Lanctôt

Prof. Paul Thomas

The Chair

Mr. Pat Martin

Prof. Paul Thomas

The Chair

Á

1100

Prof. Paul Thomas

The Chair

Prof. Paul Thomas

The Chair

Mrs. Lynne Yelich

Prof. Paul Thomas

Mr. Paul Forseth

Prof. Paul Thomas

The Chair

---

CANADA

Standing Committee on Government Operations and Estimates

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NUMBER 014

l

3rd SESSION

l

37th PARLIAMENT

---

EVIDENCE

Tuesday, May 11, 2004

[Recorded by Electronic Apparatus]

¿  (0905)  

[English]

    The Chair (Mr. Paul Szabo (Mississauga South, Lib.)): Good morning.

    Our meeting today is pursuant to the order of reference of Tuesday, April 20, 2004, Bill C-25, an act to establish a procedure for thedisclosure of wrongdoingsin the public sector,including the protection of personswho disclose wrongdoings.

    This morning we're pleased to have, representing CBC/Radio-Canada, Mr. Pierre Nollet, vice-president, general counsel,and corporate secretary, as well as Michel Tremblay, vice-president,strategy and business development.

    Good morning, gentlemen. I'm pleased that you were able to join us this morning on this important matter. We understand you have some opening statements, and I'm sure the members will have some questions for you.

    Please proceed.

    Mr. Pierre Nollet (Vice-President, General Counsel and Corporate Secretary, CBC/Radio-Canada): Mr. Chair, the Canadian Broadcasting Corporation has examined Bill C-25 and wishes to provide the committee with its perspective on the implications of the draft legislation for the CBC.

    It is important to state that the CBC fully supports the principles of Bill C-25, which it understands to be: recognition of the essential importance of public institutions to Canadian parliamentary democracies; the importance of public confidence in the integrity of those who serve the public; the enhancement of confidence in public institutions engendered by the establishment of effective procedures to protect individuals who bring true wrongdoing within the public service to the attention of a third party; and the recognition of an appropriate balance between the duty of loyalty to an employer and an employee's right to freedom of expression.

    While supporting the principles inherent in this legislation, the characterization of CBC employees as public servants raises serious questions with respect to their independence from government and the perception of that independence.

    While an instrument of public policy, the CBC does not deliver a government program, and in recognition of the value of a free press in a democracy, its distance from government has been protected in legislation. In order to guarantee its independence, its officers and employees are specifically not public servants. The Broadcasting Act states, at subsection 44(3):

The officers and employees employed by the Corporation...are not officers or servants of Her Majesty.

    The members of CBC's board of directors are appointed by the government “during good behaviour”, rather than “at pleasure” to guarantee that the members of the board of directors act with a significant measure of independence from the government of the day.

    The Broadcasting Act specifically emphasizes the independence of the CBC in four different sections.

[Translation]

    The Broadcasting Act states that all of its provisions governing the CBC are to be interpreted and applied:

So as to protect and enhance the freedom of expression and the journalistic, creative and programming independence enjoyed by the Corporation in the pursuit of its objects and in the exercise of its powers.

    While the CBC's Board of Directors is appointed by the Governor in Council, the Act specifically reiterates that the CBC shall:

In the pursuit of its objects and in the exercise of its powers, enjoy freedom of expression and journalistic, creative and programming independence.

    It is stated that the provisions governing the financial circumstances of the CBC are not to be

interpreted or applied so as to limit the freedom of expression or the journalistic, creative or programming independence enjoyed by the Corporation in the pursuit of its objects and in the exercise of its powers.

    Furthermore, the CBC is not to submit to the Treasury Board, the Minister of Canadian Heritage or the Minister of Finance, any information which could “reasonably be expected to compromise or constrain the journalistic, creative or programming independence of the Corporation”.

    Finally, in any corporate plan or summary thereof submitted to the Minister of Canadian Heritage, the CBC is not to include any information which could “reasonably be expected to limit the ability of the Corporation to exercise its journalistic, creative or programming independence”.

    CBC as an instrument of a free press plays a vital role in Canada's democracy. The CBC enjoys the freedom of expression and freedom of the press guaranteed by the Charter. As the courts have repeatedly recognized, the media are the means of conveying information of importance to the public.

    The Supreme Court of Canada has repeatedly commented on the importance of freedom of the press. The following cases and comments summarize its view.

    First in Canadian Newspapers CO v. Canada (Attorney General), the Supreme Court said in a 1988 decision:

Freedom of the press is indeed an important and essential attribute of a free and democratic society, and measures which prohibit the media from publishing information deemed of interest obviously restrict that freedom.

    In Canadian Broadcasting Corp. v. New Brunswick (Attorney General), the Supreme Court said:

The media have a vitally important role to play in a democratic society. It is the media that, by gathering and disseminating news, enable members of our society to make an informed assessment of the issues which may significantly affect their lives and well-being.

¿  (0910)  

[English]

    In Dagenais v. Canadian Broadcasting Corp., the Supreme Court said:

Like the right of an accused to a fair trial, ...freedom of expression, including freedom of the press, is now recognized as a paramount value in Canadian society, as demonstrated by its enshrinement as a constitutionally protected right in s. 2(b) of the Charter. Section 2(b) guarantees the rights of all Canadians to “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”. The importance of s. 2(b) freedoms has been recognized by this Court on numerous occasions.

[Translation]

    In our view, these are some of the reasons Parliament, in its wisdom, decided to protect the independence of the Canadian Broadcasting Corporation in the Broadcasting Act.

[English]

    It is therefore our submission that defining CBC employees as public servants directly contradicts the independence that Parliament has been so careful to protect in drafting the Broadcasting Act.

    Respectfully submitted.

    The Chair: Thank you very kindly.

    We're going to begin the questioning with Mr. Forseth, please.

    Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, CPC): Thank you very much for being here.

    I guess I have to take exception to the line of questioning or line of argument that you're taking. I see in your bullet points on page 1 that you talk about the “recognition of an appropriate balance between the duty of loyalty to an employer and the employee's right to freedom of expression”. I don't know how freedom of expression has anything to do with wrongdoing.

    You also talk about the “guarantee that the members of the Board of Directors act with a significant measure of independence from the government of the day”. Well, independence is not licence for wrongdoing.

    Later in your remarks you cite or quote the Broadcasting Act that the CBC shall, “in the pursuit of its objects and in the exercise of powers, enjoy freedom of expression and journalistic, creative and programming independence”. What's that got to do with wrongdoing? There's absolutely no relationship between the two.

    Then you state further that, “The CBC enjoys the freedom of expression and freedom of the press....” That's not complete freedom to spend or to commit wrongdoing against employees or against the Criminal Code, such as fraud, bribery, forgery, and threats against individuals. We have the access to the courts. We know from the history of the CBC as far as its administrative side is concerned, not its journalistic opinion, that it is a corporation that has a lot to do to clean up its act.

    I see from the letter that we got from the CBC that all of a sudden it's waking up, and it's now deciding that it's going to do something. It's going to begin to put in new controls and a new regime for reporting wrongdoing, and it is saying, “We are okay, and we can handle it ourselves”.

    So instead of going down this line of a completely specious argument about freedom of the press, which has nothing to do with wrongdoing, I would like to hear from you what your plan is to develop your own regime of reporting wrongdoing that is going to be available to all employees, and that's going to have the public confidence, so that it could perhaps demonstrate to government how it could perhaps do it better than this piece of legislation. That's what we want to see, that there are guarantees to employees that there is a regime in which they can report wrongdoing, and not your going down this specious argument that somehow there's a relationship between the constitutional right of journalistic independence and reporting wrongdoing.

    Let's hear about what your plans are to help employees overcome the bureaucratic malaise that's already recognized in the CBC.

¿  (0915)  

[Translation]

    Mr. Pierre Nollet: As I mentioned at the outset and was mentioned in the letter as well, I think it is very important to understand that the CBC has no objections to the principles set out in the bill. In fact, that is why we say that there must be a move in the same direction as that put forward in the bill in order to achieve the balance required in our system to protect employees on the one hand and the organization on the other, and to serve the public interest generally.

    The fundamental difference is the way of achieving this objective, and that is where the independence of the CBC comes into play.

    The means used by the bill to achieve the goals set out in the principles is to define CBC employees as public servants. The reason I took the trouble to set out all these points regarding the CBC's independence is precisely because the government and Parliament, in their wisdom, were very careful in drafting the Broadcasting Act not to define CBC employees as public servants. Making CBC employees public servants is tantamount to limiting the independence of the CBC and its employees.

    Finally, CBC employees would become in the pay of the government. Journalists would be government employees, and as such, their credibility and the CBC's credibility would be affected. That is why we want to strongly support the principles of the bill, and establish a satisfactory system, one that provides the necessary independence and allows our employees to in fact report any “serious wrongdoings” they might identify, without making them into public servants. The ultimate objective of this would be to undermine their credibility as journalists and as part of a journalistic organization.

[English]

    Mr. Paul Forseth: I guess I'll just have to repeat my point that you're largely talking about independence from government, and that's not the issue. The issue is protection for employees within CBC, from the bottom up, who may have a desire to report wrongdoing.

    Over the years in any large bureaucracy, and especially the CBC, which has been involved in wrongful dismissal suits and all kinds of business going on there...I'm sure if employees had some kind of a protection regime they would have used it.

    That's what we're talking about. We're not talking about almost a constitutional matter between freedom of the press and a free and democratic society. How you can ever draw a line between those two things I think is absolutely incredible.

    My essential question was for you to tell us what your plan was, because the letter to our committee said that in view of the legislation you wanted to be able, as a corporation, to be left alone, exempt from the legislation, and that you were going to put your own regime in place. So can you describe what that new regime is going to be?

¿  (0920)  

    Mr. Pierre Nollet: I guess until now, like the government, the corporation has been relying on the provisions of the Canada Labour Code. So there's nothing exceptional in there so far.

    What we intend to do is in fact model the principle found in the bill, present the process to our board of directors, and have a policy adopted that would deal with the issue.

    Mr. Paul Forseth: Thank you.

    The Chair: Thank you very much.

    If I may, I want to clarify where I want to go to. I was curious. The issue of wrongful dismissal in normal circumstances is a matter of human resources policy, and there are mechanisms in place in virtually every organization with regard to a human resources grievance. The relationship of wrongful dismissal, I think Mr. Forseth would agree, would be to the extent that it was a consequence; that is, a reprisal for being a whistle-blower. So wrongful dismissal in totality is not necessarily to be addressed by this bill; it is wrongful dismissal only as a reprisal. Would that be a fair assessment?

    Mr. Paul Forseth: That is fair, but it is broader than that. On the way harassment works in a work unit sometimes, a dismissal is arranged because someone is not seen as being a team player on certain things he or she may not be onside with concerning certain wrongdoing. There are many different scenarios, but you're quite right that often the main concern is reprisal.

    I posed the question to the witness about.... They brought it up. They're the ones who said they were going to put a regime in place. We'd certainly like to hear from them, in a comprehensive way, about what their plans are, if we're going to contemplate changing the legislation to exclude them from the bill.

    The Chair: Thank you.

    Madame Guay, please.

[Translation]

    Ms. Monique Guay (Laurentides, BQ): Thank you, Mr. Chairman.

    I would like to thank our witnesses for being here this morning. You said in your presentation that CBC employees should not become public servants. The objective of the bill is not to make them into public servants, but rather to give your employees a remedy. As far as I know, you were a Crown corporation. The employees of Canada Post, which is also a Crown corporation, are covered by the act. The objective is to give them a remedy so that if they should disclose a problem, they would be protected by the act. You say that you do not want this, in order to guarantee the independence of the press; however, there is no connection between these two considerations.

    I would like you to explain how you see this connection, because I fail to see it. I would like to emphasize at this point that Mr. Rabinovitch in his letter said:

It is important to state at the outset that I fully support, and I believe that our employees would support, the principles of the bill.

    So I think there may be a way of finding some common ground, but personally, I would not consider having the bill not apply to you at all.

    Mr. Pierre Nollet: I think you have stated the problem very well. We do support the objectives of the bill. I think the only important distinction that must be made here is the way in which the bill goes about offering us this protection to which you refer. The only discussion the CBC really has at this point is very technical in nature, but it does have to do with the way we are brought under this bill.

    The approach used in the bill is to say that CBC employees become public servants for the purposes of the bill. That is what the bill states. That is where we have an objection, because the approach used destroys an even more important principle, as I try to explain. That is where there is a connection with the concept of independence, in other words, in an attempt to give the CBC the independence required to do its journalistic work, the Broadcasting Act has granted it independence and has acknowledged that its employees are not public servants. Now, through another bill, the bill before us here, CBC employees become public servants.

    I will use a mixture of French and English terms. The definition of "public servant", as it appears in the bill, and the definition of "public sector" or " public service" refer to a schedule in your bill and the schedule as such includes us as "part of the public service".

    So what concerns us is the means used to achieve the desired end. I do not think we are calling into question the objectives of the bill. Since we both agree on the principles, I think it must be possible to find a more appropriate approach. In this regard, we are prepared to work with government officials to try to find a procedure that would not violate the other principles set out in the Broadcasting Act.

¿  (0925)  

    Ms. Monique Guay: What you are trying to do is to find some way around this bill. Once it is enacted, you don't want this statute to apply to the CBC. That is what you are telling us.

    As far as I know, Mr. Nollet, the CBC currently has no internal rules to protect whistle blowers. We are passing legislation that will give these people some type of remedy. Whether they work for the CBC or any government department, these employees report to a senior officer or directly to the commissioner. Now, to protect its independence, you would like the CBC to be excluded. I find that unacceptable.

    We must find some way to satisfy both parties, but you cannot be excluded. If you opt out, then so will other agencies, like, for example, Canada Post, which is also a Crown corporation. I would prefer an inclusive approach whereby we would find some way to accommodate you within the legislation.

    Mr. Michel Tremblay (Vice-President, Strategy and Business Development, CBC/Radio-Canada): I agree that we need an inclusive approach. We are not trying to prevent our employees from having any type of remedy; that is not the point. What we are saying is that, for all intent and purposes, there is a fundamental conflict between the bill and an act that has already been adopted by Parliament, one that gives us a special status within the system. That is the point we are trying to make.

    That being the case, we must try to find some type of accommodation. When a bill infringes upon existing legislation, there are some fundamental issues that must be addressed. This has nothing to do with our willingness to adjust. We recognize the need to have some type of mechanism in place that would give our employees an opportunity to convey information when serious management issues arise. That is something to which I fully subscribe, but we must find some way to solve the fundamental legislative problem.

    Ms. Monique Guay: Thank you Mr. Chairman.

[English]

    The Chair: Thank you.

    Mr. Lanctôt, please.

[Translation]

    Mr. Robert Lanctôt (Châteauguay, Lib.): Thank you Mr. Chairman.

    As Mr. Forseth and Ms. Guay have said, what you have drawn to the attention of the committee is a very complex technicality that we must address. This is something that I believe all committee members clearly understand. Independence is very important, but has absolutely nothing to do with this. I would like you to give me some concrete examples, because I really can't see what you are getting at when you say that wrongdoing can have something to do with independence, whether it involves Crown corporation employees or public servants. The bill is very clear, and you say that there is a legislative problem with this bill. That is easy to see, it is in clause 2.

    Clause 2 distinguishes between public servants governed by the Public Service Labour Relations Act, as well as agencies named in the schedules to the Financial Administration Act. Moreover, the agencies are included. The differences are covered in sub-clauses 2(a) (b) and (c). The bill does not say that CBC employees are public servants, however, it does state they are part of the public sector. Just between you and me, I might tell you that you work in the public sector. So your employees will have just as much protection as public servants, since everyone will be covered by the act. Furthermore, we know full well that the CBC must continue to uphold journalistic independence.

    If you can give me concrete examples to demonstrate why you should be excluded, then my hat goes off to you, because the distinction has already been established in the bill. We are not saying that you are public servants, we are saying that you are part of the public sector. Your argument will only hold water if you can prove to us that you are not part of the public sector.

¿  (0930)  

    Mr. Pierre Nollet: It is quite easy to do; you have it right in front of you. In clause 2, to which you refer, the word “civil servant” is defined as: “every person employed in the public sector”. Now, automatically, with your definition of “public sector”, if you add the CBC as a government agency, then you are including us in the public sector, and defining us and all of the CBC employees, as public servants.

    Now, how do you reconcile this provision with the Broadcasting Act, which states that we are not government employees?

    Mr. Robert Lanctôt: It's not very hard to do. If what you are saying is simply that the definition of a civil servant, “every person employed in the public sector” is not suitable, then all we need to do is to amend that part. But you agree with the principle of the bill and the fact that is has nothing to do with independence. If all you want is to amend the definition of the word “civil servant”...

    Mr. Chairman, this must apply to the public sector; that stipulation is clear. But I understand what you mean about the definition given to the word “civil servant”, which could include the entire public sector. It would not be hard to do; we simply need to add a word or remove one from the definition of the word “civil servant” in English or “fonctionnaire” in French. All we need to do is to be more specific in the definition, and the problem will be solved.

    Mr. Pierre Nollet: I think that we agree that this is the best way to go about it, and we have no quarrel with the principle. That is what we have been saying from the outset. We are not against the principle and we agree that some type of arrangement is required. The means to achieve that, unfortunately, is inadequate. That is what I have been stating quite clearly from the very beginning.

    Mr. Robert Lanctôt: Well I want to be clear as well, because I don't want to complicate matters, I want to make things easier. If we can simply amend the definition of the word “civil servant” in English, “fonctionnaire” in French in clause 2, would you agree with the bill?

    Mr. Pierre Nollet: I think we have stated quite clearly from the very outset that we were in favour of the principles of this bill.

    Mr. Robert Lanctôt: Therefore, just to be perfectly clear, if we only amend the definition of the word “civil servant” in clause 2—and perhaps you could suggest a...

    Mr. Pierre Nollet: Well, there are pros and cons when debating such issues with a paralegal. It isn't as easy as it may seem to draft an amendment. That is why we decided to discuss this with the officials, because there are ramifications throughout the bill. We want the CBC employees to have all of the benefits, but there are ramifications when someone is defined as a public servant, and this would affect all of the government employees.

    Here is what I would suggest... I'm sure that the justice department officials have the qualifications to find some way to deal with this. I don't think I can tell you today what the best approach would be. If I had an answer, I would be happy to share it with you. I don't think I could find the best wording, but I'm sure it can be done, if we agree on the principles, on the best way to meet the objectives of the legislation.

    Mr. Robert Lanctôt: I'm telling you that while you may be a technical expert at law, I am one too, and I'd like to get clear answers from you because otherwise, you will no longer have an opportunity to come and tell us how we could improve the bill. I'm telling you there are simple ways of doing it; you're telling me it's more complicated than that.

    If it is indeed more complex, let me reiterate my initial request: give me specific examples of the way you would improve it, because if there are that many ramifications—personally, I don't see that many—we better know about them and we need to know which ones. That's why we're here. If you tell me that you agree with the principle, I'd say I too agree with the principle and I agree on many of the technicalities of the bill. I may not agree with all of them; we are here to improve the bill. But if you don't tell me where we can improve it, well then, I think there are not too many people around this committee table who can help you, because technical legal experts have already drafted the bill. So it's only up to us, and especially up to you to say if there are any places in the bill where technical changes or other improvements are needed.

    I understand the problem with the definition of the word “public servant”, because we're talking here about everyone who's employed in the public sector. That distinction is made, and therefore it's very simple to solve in my opinion and yet that is the major part of your criticism of the bill. But if there are other technical points, I want to know what they are.

    Mr. Pierre Nollet: The term “public servant” is used throughout the bill.

    Mr. Robert Lanctôt: Yes, but if we change it, it will change.

¿  (0935)  

    Mr. Pierre Nollet: But if you exclude someone from the definition of the word “public servant”, the bill will have to be reviewed in its entirety to examine how it affects the person you've excluded. That's why I'm saying that adjusting clause 2 is not...

    Mr. Robert Lanctôt: No. You've misunderstood me. I don't want this to be excluded. My goal is not to exclude you from this. The distinction that you fear will affect you by changing a principle that's established in your bill will be made. When you say that they mustn't be considered as public servants given the independence of the SRC, I can see where you're coming from, but I don't want to exclude you from the bill. You shouldn't think that I will encourage you to exclude yourselves from that. Above all, I want to protect you, in the sense that you don't want this bill to be interpreted in such a way that it would change the principle of the rule of law and independence as regards Radio-Canada, which you have already established. We can put that in there, but you will be included in the legislation nevertheless.

    Mr. Pierre Nollet: suppose we take a look at clause 12, or clause 11. Both clauses begin with: “Any public servant who believes...” and by “A public servant may disclose...”. In both cases, the definition of the term “public servant” is referred to. Once you change that definition, the rest will necessarily be affected. I think this is something for the technical experts.

    Mr. Robert Lanctôt: Yes but that's not very complicated, Mr. Nollet. Let say that clauses 11 and 12 will read: “A public servant and the entire public sector”, to which you will be subjected. All you have to do is add the words “and the entire public sector” to the words “public servant”. Thus, you would be included, but that wouldn't change the bill very much nor will it change your other principle, that I want to protect, because in my opinion you are right to make a connection between the words “public sector” and “public servant” in clause 2. I wouldn't change the term “public servant” per se, however, I will just change the fact that you are not a public servant. However, public servant and the public sector will thus be protected by this bill. That would be my goal.

    Mr. Pierre Nollet: All right.

[English]

    The Chair: Thank you.

    It's amazing. I think we will get a lot further if we assume that the act says “for the purposes of this act, public servant is”, or alternatively, we strike the term “public servant” totally and replace it wherever it appears in the act with “employees of the public sector as defined”, or “public sector workers”.

    All of a sudden, everything that has been argued here about whether or not somebody is a public servant is moot. So I think we should assume that argument is moot and not spend any more time on it.

    Mr. Benoit.

    Mr. Leon Benoit (Lakeland, CPC): Thank you, Mr. Chair. Welcome, gentlemen.

    I was going to pursue exactly that point. It's not unusual in legislation to have certain groups identified as being included for the purposes of a particular piece of legislation. It wouldn't in any way threaten or change the definition of the employees of that organization for any other purposes if it were specifically included for a particular piece of legislation. So I do think we have to get beyond that.

    The independence of the CBC is not the issue being dealt with here this morning, Mr. Nollet. We're dealing with the reporting of wrongdoing within the pubic service and crown corporations. There's a logical way of dealing with the concern you have about the independence of the CBC, and that's to make it a private corporation. If the CBC were a private corporation, that threat wouldn't be there. You wouldn't have that hanging over you all the time, and you would still be governed by the Broadcast Act and other pieces of legislation.

    I want to ask you precisely if you have read Bill C-25. You've talked to your lawyers about it, no doubt. What particular parts of this legislation really concern you?

    Mr. Pierre Nollet: Again, at the risk of being consistent with myself, I guess what concerns us is the means that was chosen to bring us under the legislation, as opposed to the objective of the legislation. As the chair indicated, my first point is now moot.

    If we take for granted that the CBC is brought under, as you suggest here, and we're part of this entire definition of public servant and public sector--and that's the example you're looking for--and suddenly we receive a brown envelope from some department, what is a reporter to do if this bill is enacted the way it's drafted now? We will be part of the definition, and a process will have to be followed before we can actually report wrongdoing. There will be a way to do it. So that means, as drafted now, our reporters will not have the ability to use the information they hold on government and publicly speak about it. They will have to follow a process. It sounds pretty serious to me.

¿  (0940)  

    Mr. Leon Benoit: Okay. It doesn't, though, because the CBC would clearly be included for the purposes of this legislation. Doesn't the other legislation governing the CBC protect against that?

    Mr. Pierre Nollet: We're saying there's a conflict between the two pieces of legislation. That's all we're trying to resolve, not the objective of your law.

    Mr. Leon Benoit: You're suggesting the way to solve it is to have your own parallel rules in place.

    Mr. Pierre Nollet: As it seems to be proposed for other organizations, we believe it is an acceptable goal that could be easily achieved. It would provide both Parliament and the public with what they required, in terms of our participation in the objectives of this act. A balance would be achieved in the protection of the employees, the public, and the organization by putting a mechanism in place that would be similar to the one proposed by the act, but governed by its own separate rules, to avoid the situation I've just described.

    Mr. Leon Benoit: So if you were going to put in place some parallel rules, I would think you would have examined what rules made sense by now. You would have looked at Bill C-25 in some detail.

    Would the contents of Bill C-25, in your evaluation, be an appropriate model for the parallel rules that the CBC would put in place?

    Mr. Pierre Nollet: I would be happy to answer this question if my board had been able to pronounce on the situation. I feel I would be pre-empting my board at this point. They will be presented with a policy on the subject matter, but at this point if I pronounce on the subject.... If you were a board member of my corporation and I came to this committee to say what will be, you would probably be very upset.

    Mr. Leon Benoit: Mr. Nollet, you've come to this committee to ask for the CBC to be excluded. You're coming here without having the arguments as to why you should be excluded, other than the one point, which I think has really been pretty effectively brushed aside. I'm very disappointed that you wouldn't come here at least being able to comment on whether Bill C-25 would provide the types of rules you've put in place within the CBC to deal with this important issue of whistle-blowing.

    Mr. Pierre Nollet: If that's what you heard from me, I spoke wrongly. I've already said that we would largely draw inspiration from this bill. We will be careful not to copy where we think there are issues, but the structure and the overall objective we do agree with, and we intend to follow it.

    Mr. Leon Benoit: You do acknowledge that with any organization, including the CBC, that is funded by the taxpayer, it is reasonable to have appropriate protection for the expenditure of taxpayers' money. Part of that protection is having in place some type of whistle-blower rules to allow people who see wrongdoing--because obviously, the people within the organization are the ones who are most likely to see the wrongdoing--to be in a position where they can report this without having their careers jeopardized.

    Mr. Pierre Nollet: That is very clear. No other organization within government, I believe, is more aware of the importance of protection of whistle-blowers. Our organization has been in the forefront of protection of sources, and that's why we believe in the principles enunciated in the bill. We think they are necessary. At the same time, we just want to protect the other principle, which is crucial. Again, the means chosen, if they were modified, would probably get us there.

¿  (0945)  

    Mr. Leon Benoit: You've said there's a conflict between this legislation and the legislation governing the operations of the CBC. Could you tell me exactly what that conflict is?

    Mr. Pierre Nollet: The main conflict is that it makes CBC employees public servants. In order to protect the independence of the corporation, the Broadcasting Act said exactly the opposite: employees of the CBC are not public servants. That's the only conflict I raise at this point, but it's a very important one.

    The Chair: Thank you.

    Mr. Shepherd.

    Mr. Alex Shepherd (Durham, Lib.): The example you gave was the black envelope from another department of government, the Department of Canadian Heritage, the Department of Defence. A journalist, presumably, under this legislation, you're saying, would be considered a civil servant and would therefore have to go through a process of reporting wrongdoing. I don't think that was the original intention of the act. I think the act clearly envisaged a department by department basis. So is there some kind of an amendment that can be made so that the reporting of wrongdoing is exclusive of the CBC?

    Mr. Pierre Nollet: You have to think of it overall. I believe what the officials of government had in mind was that any public servant could report any wrongdoing in any department, because people move, so they didn't want to restrict people's ability to talk about other departments where they have been in the past. I understand why it's drafted the way it is now. The difficulty is that because of the particular business we're in, it cannot be applied as is. I think for the rest of government, if you were to limit it by department, you would probably miss out on very important whistle-blowing.

    Mr. Alex Shepherd: But is the amendment that you seek not the exclusion per se, but maybe the definition of employees of the CBC so that wrongdoing under this act would only apply to the caveat within the CBC itself?

    Mr. Pierre Nollet: I haven't looked at it in exactly this way, but I would be happy to do so. You have to make it work with all the provisions of the bill, so it's something that should be looked into. I'm not sure it does the trick, but maybe it does.

    Mr. Alex Shepherd: I understand your point. You make a valid point of journalistic independence, the critic of government. I have no problem with that.

    The Chair: Something just struck me. There was a discussion about the intent of CBC to deal with the objective of the bill, with which you agree. Is it the intent of CBC to wait until this bill is disposed of, or is the CBC going to proceed in a timely manner and implement its own regime simply because it's necessary?

    Mr. Pierre Nollet: Again, I don't want to compromise my board, but my recommendation to our board would be that we proceed with a policy as soon as we can, without waiting for the bill to be finalized, finding our own way through this, working out our own policy. What we're proposing to do here today is not something we have never done. Most Treasury Board policies do not apply to CBC, for one reason or another, but notwithstanding this, we have drafted established policies that most of the time mirror the ones recommended by Treasury Board. So we do have a track record of proceeding with what is in the best interest of the corporation, and I believe this particular proposal is in the best interest of the corporation.

    The Chair: I think the public would agree.

    Madam Yelich.

    Mrs. Lynne Yelich (Blackstrap, CPC): Have you a definition of wrongdoing, and do you have any examples of wrongdoing in the CBC in the past? Can you see where this legislation and the definition of wrongdoing would be amenable?

¿  (0950)  

    M. Pierre Nollet: This is a very difficult question to answer, because this legislation does not exist now.

    Mrs. Lynne Yelich: Let's pretend it does. Give us an example.

    Mr. Pierre Nollet: I don't think I could come up with an example of any such thing.

    Mrs. Lynne Yelich: Because we're going to have to define wrongdoing.

    Mr. Pierre Nollet: That certainly concerns me as well, how it is defined, because gross mismanagement is a qualification used here that is in the eye of the beholder. So it's very difficult to come up with an example. What is gross mismanagement for one may not be for someone else who has better information. So the whole concept of how wrongdoings are defined needs to be thought through, but I don't think I can come up with a very precise example such as you're asking for. I'm sorry.

    Mrs. Lynne Yelich: Do you believe the whistle-blowers should be able to speak to the media? Do you think you should be a conduit for the whistle-blowers? In the legislation they have this process of going to the supervisor, then to an independent commissioner. Do you think they should be able to use you as a conduit?

    Mr. Pierre Nollet: There is a sort of dichotomy in our position. As a journalistic organization, we do believe freedom of the media, freedom of speech, should take precedence. As a responsible organization, we believe a proper process is warranted, which is what the bill suggests. We believe in balance. There has to be a balance between the ability for the system to work through its mechanism and the ability for a whistle-blower to speak out when they don't see results. I trust this committee and the Parliament to come up with the proper balance, and I suspect it will consist in the fact that people have to act in good faith. As long as people are acting in good faith, they should have the ability to do what you suggest.

    The Chair: Mr. Epp.

    Mr. Ken Epp (Elk Island, CPC): My questions are going to be really short-answer ones.

    The taxpayers put about $2.7 million a day into CBC, every day, 365 days a year. That's a lot of taxpayers' money. I would like to ask you what is the mechanism right now by which CBC provides accountability for the way it spends that money?

    Mr. Pierre Nollet: To answer this question properly would probably take me a lot of time. But I'll give you a summary.

    First of all, all our programming is on the air every day--television, radio, Internet, whatever you wish, so you can see where we spend the money. You can view it, you can listen to it. It's not a problem.

    The Chair: Actually, Mr. Nollet, I think Mr. Epp is asking about the safeguarding of the resources, as opposed to the spending of them.

    Mr. Pierre Nollet: There are many.

    Mr. Ken Epp: Exactly. I mean, this is the whole thing. We look at other television networks that don't get $2.7 million a day from the taxpayers and we have the same kind of programming, with pretty well the same mix of ads as we get from the CBC television. So that's not the point.

    Let's say that you, or maybe your president, were to spend a lot of money on lunches at noon--let's say, day after day, $300 or $400 for lunch. That is an abuse of taxpayers' dollars. How would that ever be accounted for? Who would ever find out about it? Who do you answer to in terms of those details?

    Mr. Pierre Nollet: We have, I believe--and you can find that through the Auditor General's report--a very strong mechanism to protect against those kinds of abuse.

    First of all, we've published our policy on hospitality and travel. We have internal auditors who are actually an external firm that we ask to review all of our controls to be satisfied, and they do this work. The Auditor General reports every year on what the financial statements of the corporation look like. They do a special exam every five years. We do an annual report. We do a corporate plan, a summary of a corporate plan. We report to Parliament through the Minister of Canadian Heritage.

    There is a tremendous number of controls, a tremendous amount of reporting and transparency from the corporation, within the confines of the act, obviously. You have to recall what the Broadcasting Act says about what we have to do. We do all of it and even more.

¿  (0955)  

    Mr. Ken Epp: My comparison was not too thinly veiled, actually, in terms of a former bureaucrat who did exactly this kind of thing and abused the taxpayers' dollars. That was found out because of access to information, among other things.

    If I put in an access to information request about CBC, I'm cut off right at the nose. I can't get a thing. There is no accountability there at all, as far as I'm concerned, when it comes to day-to-day operations. And if there were such an abuse going on, no one would ever know.

    Mr. Pierre Nollet: I disagree with you. It's very clear that our board approves the president's expenses and the chair's expenses every year. This board is appointed by Parliament, appointed by government. So these people are there, and the act says what is their duty: their duty is to oversee management of the corporation. So there are 12 people--or 11 if you do not in your example take into account the president--who oversee the management of this corporation. Believe me, a board meeting has access to a lot of information and asks an awful lot of questions if--

    The Chair: Thank you.

    Madame Guay.

[Translation]

    Ms. Monique Guay: Thank you, Mr. Chairman.

    We listen to you all morning. You're saying that you don't want to be identified as public servants as defined in clause 2. We could simply create an entirely new category, if necessary, to include you.

    Now with regard to clause 13, you ask was you're supposed to do if an employee, a journalist, receives a brown envelop. We're not forcing anyone to be a whistle-blower; we're saying that person can make a disclosure. Therefore, it also depends on the person's judgment. Presumably a journalist will want to continue to do his or her job as a journalist.

    You didn't arrive with any proposed amendment whatsoever, you haven't submitted anything to help us include you—the Crown corporations—in this. Is there any possibility that you might be able to bring us some amendments to help us design a bill that could include the Société Radio-Canada?

    Mr. Pierre Nollet: I would imagine that it's possible, but unfortunately, I don't have them here this morning. However, as far as helping you drafting amendments is concerned, I'm certainly prepared to do that.

    Ms. Monique Guay: Perfect. Thank you.

[English]

    The Chair: Mr. Lanctôt had a brief question, then Mr. Martin has a brief question. Following that the chair has a brief question.

[Translation]

    Mr. Robert Lanctôt: I'd like someone to explain to me where the problem lies here. You say it's not a matter of employees who might blow the whistle on certain actions within Radio-Canada, but it's about the brown envelops that you receive and that may cause a problem.

    Ms. Guay has just raised a point, but what's very important and must not be forgotten, is that conversely, if a journalist has done his job properly, he will maintain his independence, contrary to someone who makes false statements regarding false reprehensible acts. The same is true for any action in society. If the journalist doesn't check his sources or does not verify the information provided to him and uses what someone told him, he won't be protected either. This piece of legislation will not affect the journalist's independence. The journalist has a job to do. So someone who wants to make such a statement has a choice of doing so, if he acts in good faith. If he's acting in bad faith and hands over a brown envelop to a journalist who doesn't do his job properly, that will be his problem. This has nothing to do with independence.

    The journalist's professional conduct will protect his independence if he checks his sources and prefers to wait. If he wants to make information public before the whistle-blowing has run its course internally or before it goes before the commissioner, I think that the bill is well designed, because it also afford protection in the reverse situation. That means that whoever acts in bad faith and wants to make false accusations just to harm someone—his superior or someone else—and takes the risk of doing so, he as well as the journalist will have committed a wrongdoing. Such a person could even be fired or be subject to all kinds of sanctions, law suits, etc. The same is true for the journalist; that does not affect independence in any way.

    This is where I'm having trouble with this, even with the sole example that you gave me because I asked you to give us examples of how independence is threatened. You mentioned the brown envelop. In the case of the brown envelop, the bill is drafted in such a way that if the contents are false, both the whistle-blower and the journalist who hasn't done his job right will be in a sticky situation. That's what independence means. Before disclosing information to the public, you have to make sure it's true.

À  (1000)  

[English]

    The Chair: Mr. Nollet, do you have a comment?

[Translation]

    Mr. Pierre Nollet: The only comment I can make is that many things which have been put together should not necessarily be put together. The independence I spoke of has nothing to do with the brown envelope. That is my only comment.

[English]

    The Chair: Mr. Martin, please.

    Mr. Pat Martin (Winnipeg Centre, NDP): Thank you for this opportunity. I'm sorry for being late, but I did read your brief in the last few moments.

    I can simply say, on behalf of the NDP caucus, that the four-page letter from your chair to the Minister of the Treasury Board didn't go over well. The reaction was, as you know, very negative because most of us are of the view that CBC is a multi-billion dollar organization that is just as vulnerable to abuses, the maladministration of funds, the possible wrongdoings within your organization, as any other organization is vulnerable.

    The only argument in that four-page letter that I think maybe merits us visiting in a serious way is the definition of public servant. In retrospect, should you not have come forward simply looking for an amendment to the bill, rather than a blanket exemption from the reaches of the bill? If that's the only legitimate point you have, don't you think that would have been less disruptive?

    I mean, this went over like passing gas in a church service, really. That's how people felt about it. It really offended a lot of us that the CBC, an institution that I have infinite respect for, would seek to be excluded when this bill is supposed to be all about protecting whistle-blowers, not protecting corporations from whistle-blowers.

    Mr. Pierre Nollet: Yes, and again I apologize if that's the sentiment we conveyed. It certainly was not our intent to convey that we didn't respect your work and what you were trying to achieve. As I said at the beginning of this meeting, and I want to repeat it again, we do agree with the principles set out in the bill. This is the reason why we will attempt to achieve your objective even before the bill is passed, if anything, and hopefully outside the confines of the bill.

    Maybe we've been misled by what we found in the bill. This section 2, at the very end, already has a process for excluding some part of government. Maybe we were misled by this, but we thought it was an acceptable principle. It's already worked into your bill right now, so it may have been our mistake in that sense.

    But I believe, in terms of working out amendments--as I tried to explain to Monsieur Lanctôt earlier--there are many ramifications in each one of them. They have been gone through very carefully. I didn't think we had that much time ahead of us, but I'm prepared to work towards this goal if it's what the committee requires. I'll be happy to actually help the committee with our views on this.

    The Chair: Mr. Nollet, if a reporter becomes aware of a criminal act, does the Criminal Code require that reporter to report it to the police, to the authorities?

À  (1005)  

    Mr. Pierre Nollet: There's a debate about this. I don't think the Criminal Code requires it, but it's debatable. The police have been wanting to use reporters and reporting material to support certain charges that have been laid. We've always objected to this because we are not the agents of the police. Reporters and journalists are not the agents of the police. We've always strongly objected against the use of journalists and reporters as witnesses. We've always objected to the fact that they should have a positive obligation to report to the police and then become witnesses for the crown.

    In our view, although I can understand why the argument could be made--and believe me, the crown is making it--there is also a fundamental role journalists have to play that would not favour this kind of approach.

    The Chair: The Criminal Code requires persons to report knowledge of criminal wrongdoing under the Criminal Code. And I do understand that reporters sometimes go to jail for failing to identify sources. But I'm talking about knowledge of an act, forgetting about knowledge that might come from a source when that source is not the person who committed the crime.

    The reason I'm asking about it--other than the public servant definition, which I think we can get around--is that the only other argument I've heard you make with some emphasis is the one about the character or the nature of the broadcasting industry, about reporters, etc., and how they have to protect informers, sources, etc.

    This bill is about the public interest. I have a feeling that the argument you would make for reporters not reporting knowledge of a criminal wrongdoing, or a wrongdoing as defined in the act, is so they can exploit such knowledge for the purpose of doing their job in a very profitable way--if I could use the word “profitable”. This means you would be arguing that we put the interest of the CBC's journalistic objectives ahead of the objective of protecting the public interest. Do you think it is more important to enhance CBC's journalistic objectives than to protect the public interest?

    Mr. Pierre Nollet: I hope that's not how my intervention came across, and I'm sorry if that's the impression I left with this committee, but I don't think it's a matter of choosing between the public interest and the CBC's interest at all. The CBC only exists for the public interest, for freedom of expression and access to information. It exists to communicate public information to Canadian citizens.

    CBC on its own has no ultimate goal of profit, as you suggest, or anything similar to this. It is a vehicle that Parliament has deemed fit to enhance the democratic process by making information available to Canadian citizens. We do report on the judicial process, on the parliamentary process, and I believe the whistle-blowing legislation is another tool--and again, at the risk of repeating myself, we do support it--to further the public interest.

    So I don't think they are in competition with one another, absolutely not.

    The Chair: Thank you very kindly, Mr. Nollet, Mr. Tremblay. We appreciate your interventions and your presentation. I think it's been helpful in focusing some of the matters the committee will have to address. Thank you very kindly.

    We'll suspend for a moment as we bring forward our next witness.

À    

---

À    

À  (1015)  

    The Chair: We're going to resume. With the indulgence of the committee, what I would like to do is quickly deal with and discharge the motion, which we received due notice of from Mr. Martin. It indicates that.... Well, you have it before you. Let's assume it has been read in.

    Mr. Martin wanted an opportunity to speak to that motion and I'm going to let him do that now.

    Mr. Pat Martin: Thank you, Mr. Chair. I will be brief, and I appreciate you interrupting the order of business. There is some urgency in that this is the final day to comply with this motion.

    If I can set the context, I was one of the original founding members of this newly struck government operations committee, and when we first formed this committee, one of the specific tasks and duties was to review order in council appointments, specifically some of the more senior appointments. What I'm raising today was raised in the House of Commons as a point of order by the Right Honourable Joe Clark regarding this government's failure to refer certain order in council appointments to this committee, with specific reference to the new--what's the term they use?--national security adviser to the Prime Minister. That's Mr. Robert Wright.

    As we know, watching the news, this is virtually Canada's version of Rumsfeld. This is a very senior appointment. We know nothing about it. The country knows very little about it; Parliament knows very little about it. So not even commenting on the individual so much, who we know to be a senior public servant who is probably more than capable of doing the job, we want, or I want, by this motion, for this committee to deal with the details of this appointment, the tasks and duties, the responsibilities, the chain of command, of this very senior order in council appointment.

    The reason it's important that we deal with this today is that according to Standing Order 110(1) and (2), within 30 days of the appointment the appropriate standing committee is to review and vet--and interview, I suppose--the appointee.

    We're not going to have this opportunity. This Parliament is in its twilight hours, and this very important senior appointment has been made without our opportunity to review it. So the point I'm making is that this committee should be reconvened later today, if necessary, or by unanimous consent the rules of Standing Order 110(1) and (2) be extended to accommodate this committee's hosting of this witness.

    So I ask your indulgence or for any debate on that, but that would be my recommendation stemming from the motion.

À  (1020)  

    The Chair: I don't think the committee disagrees with the sentiments you've expressed. We did, however, have circulated to us a complete list of all the various persons or positions for the appointment that would be referred to us and that we were to respond as to which ones we wanted to review specifically. Certainly we always have the opportunity to review, and as you know, there are literally hundreds.

    I recall a discussion we had, and I think it was Ms. Neville who wanted to make sure we clarified whether we were separating chief executives, being presidents as well as chairmen of boards, to be included as our principals, and that is what we have been following. So Mr. Wright's appointment was in fact referred to us but did not meet the criteria we had established in terms of that.

    That said, I think it's unfortunate, but it's quite unlikely that we would be able to proceed any further on this since today is May 11 and the motion you gave notice of is that prior to today we would do this. So I guess we have a technical glitch, but I don't want to discharge this matter simply on the technicality.

    Mr. Pat Martin: The limitation is the 30-day stipulation in the Standing Orders, not the timeframe referenced in my motion.

    The Chair: Well, I would, in the spirit—

    Mr. Paul Forseth: Before you rule, maybe you can let me talk to....

    The Chair: In that spirit, Mr. Martin has made a motion that we do this. I guess I want to explore with him, does he really think it's pragmatic for us to somehow arrange all of the proper documentation and a meeting, and to have Mr. Wright appear today?

    Mr. Pat Martin: No. I said either that, or that by mutual agreement we extend the rules and deal with it next week. We believe we'll be back next week.

    The Chair: Do you want to simply amend the motion that we deal with it next week? I think it would be preferable that we at least have a reasonable—

    Mr. Pat Martin: Well, I'd be happy to do that, if there's interest from the other committee members.

    The Chair: But I think the point is that the committee, at least the members representing at the committee, should review the appointment of this particular person, given the nature of it. I think that's the principle and that we should attempt to arrange this for the week following the next, which is a break week.

    An hon. member: Right you are.

    The Chair: We have always proceeded on the basis that we do not anticipate unscheduled disruptions. We should make our decisions based on the normal calendar, so that in the week following the break, we should arrange for an appropriate review of the appointment of Mr. Wright. We could still do a review, notwithstanding that a time deadline may have passed.

    Is that acceptable to the members?

    Some hon. members: Agreed.

    The Chair: Mr. Forseth, quickly.

    Mr. Paul Forseth: Yes, Mr. Chair.

    So I take it that the technicalities of the 30-day deadline are such that it's automatically deemed to be reported and the procedure goes ahead. So the time has expired, but that does not inhibit us from calling him later anyway. Our ability to recommend yes or no may have passed, but we can certainly hear from him and do our due diligence about what Mr. Martin suggested is the larger issue of the office, as much as the individual is.

    Because this is somewhat of a new animal now, I think we need to put on the public record what this is about. I think through the transcript we can send the signal in advance as to what we're looking for, not just necessarily a curriculum vitae of the individual. Perhaps he might come with one or two individuals to talk about this role and the office, as well as the individual.

À  (1025)  

    The Chair: I think we have agreement. We will do that.

    Mr. Epp.

    Mr. Ken Epp: I just wanted to have this technically correct here.

    Mr. Martin has given us a notice of a motion. Mr. Chair, do you not now have a motion on the floor? Was the notice insufficient? He didn't actually move it.

    The Chair: The notice was fine, but it starts off by saying that prior to today we will do this. It makes no sense.

    The motion, I think, dies simply on its own wording.

    Mr. Ken Epp: So you've ruled it out of order.

    The Chair: But I think there's a consensus or an intent of the committee that it's still important that we undertake the review of the appointment, notwithstanding that we have passed the 30 days.

    We'll certainly keep that in mind for the future. For all members, I think that should any particular appointment come up that is beyond the scope originally anticipated—and notices are circulated to all—and that members felt would be important for us to review, those requests should be brought to the attention of the chair as soon as possible. So we will do that for the week following the break week.

    Now, back to Bill C-25.

    Mr. Thomas, thank you for indulging us. We're not going to rush you through this thing, but we're going to give you all of the time necessary.

    We have with us Mr. Paul Thomas, professor from the University of Manitoba, who is very knowledgeable in matters related to the subject matter of Bill C-25.

    We welcome you. We understand you have some opening comments. I'm pretty sure the committee will have questions for you, if you would please commence.

    Prof. Paul Thomas (Professor, University of Manitoba, As Individual): Thank you very much.

    It's a pleasure to be here, and I welcome this opportunity to appear before the committee.

    I intend to be brief and try to leave the maximum amount of time for discussion on this important and controversial topic. I'll attempt to do two things in the time available to me.

    First, on the basis of a lengthy paper, which I understand has been circulated to committee members, I'll make some short comments about the experience of other countries that adopted disclosure or whistle-blower laws earlier than Canada. This provides a comparative context in which to offer an assessment of Bill C-25.

    Second, I'll provide my opinion on the strengths and weaknesses of the bill.

    Since whistle-blowing is inherently value-laden, subjective, and controversial, there will never be a statutory framework and a set of related administrative practices that are beyond criticism. Also, each country must design laws and practices to fit with its own constitutional and institutional arrangements, its history and experiences, and the prevailing political and administrative values of the day. What works or doesn't work in other countries might not apply to Canada.

    So let me turn first, then, to the comparative experience. The lengthy paper I've mentioned reviews the arguments for and against the adoption of a whistle-blower protection law based on the Canadian debate over the past decade and the experience of a number of countries where such laws already exist. The countries reviewed in the paper are Australia, New Zealand, the United Kingdom, and the United States. I won't take you through all of that analysis. Instead, I will highlight 10 major points that I think emerge from the review of the experience of other countries.

    The first point is that there is almost universal disappointment with whistle-blowing regimes because usually the benefits of such laws have been oversold at the outset.

    Second, measuring the success of any whistle-blowing law is impossible because we lack agreement on the definition of “effectiveness”. It may be the volume of cases that come forward, the types of cases, or whether corrective action is taken. And I noticed in the testimony by Dr. Keyserlingk that his definition was the comfort of the consumers--the users of the law, the public servants--as the criterion of success. My point is simply that we bring different evaluative criteria to determining when a law is successful or not.

    Third, four findings based on the actual experience of the other countries indicate the basis for disappointment with such laws. First, the laws do not seem to have caused more people to come forward to identify wrongdoing. Second, there is no reliable evidence that I know of on how often whistle-blowers are wrong or act in bad faith. Third, laws are ineffective in protecting whistle-blowers against the more subtle forms of reprisal. And fourth, there is no reliable evidence on how often whistle-blowing leads to the correction of the alleged wrongdoing.

    Fourth, in my analysis, psychological, social, and cultural factors play a much larger role in determining the operation and success of whistle-blowing regimes than the laws themselves.

    Fifth, there is agreement on the need for an independent body to oversee whistle-blowing activities, but the case for making this a new officer of Parliament is not as conclusive as the proponents suggest.

    Sixth, in other cabinet-parliamentary countries the body that oversees whistle-blowing is usually housed within government but is given certain protection against ministerial and bureaucratic interference. The position of those offices in other countries is similar to the president of the Public Service Commission in Canada.

    Seventh, in all of the cabinet-parliamentary countries the oversight bodies have ombudsman-like powers of publicity and persuasion. Dr. Keyserlingk is asking that the new commissioner be given real order-making power to stop reprisals, to make final and decisive rulings regarding allegations of reprisal and so on. Granting a new officer of Parliament an order power involving actual decision-making, I argue, would infringe principles of ministerial responsibility.

    Eighth, reliance upon legal requirements and adversarial procedures to deal with dissent within organizations can reduce trust, collegiality, and shared purposes within departments and non-departmental bodies.

    Ninth, adoption of whistle-blowing laws both reflects and reinforces, unfortunately, the public's perception of widespread wrongdoing and cover-ups within government.

À  (1030)  

    Finally, the tenth point I take out of my analysis is that what will always matter most to the prevention of wrongdoing is the internalized, subjective sense of doing right on the part of public officials, both elected and appointed. Passage of a law will contribute only marginally to ethical awareness and responsible behaviour.

    Now, much more could be said about the operation of whistle-blowing laws elsewhere and the relevance of that experience for Canada, but in the interests of time I'll move on to my assessment of Bill C-25.

    I begin with this point. There can be no immutable rules respecting whistle-blowing; therefore, any statutory framework must create administrative structures and procedures that balance a range of values and interests and inspire support and confidence in a number of locations.

    Drafting whistle-blowing laws is not a precise science in which lawmakers can predict with certainty how the detailed provisions will operate in practice, including how they will be interpreted by quasi-judicial tribunals and/or courts.

    The following are what I regard as some of the potential benefits of the proposed bill.

    First, it involves Parliament in the debate over what is a reasonable balance between the legal requirement for loyalty to the employer versus freedom of speech and a recognition of the legitimacy of dissent within public organizations.

    Second, it provides a statutory basis for encouraging responsible disclosure of wrongdoing as opposed to reliance upon a merely administrative policy controlled exclusively by government.

    Third, it places the activity of internal disclosure in the context of a code of conduct of good behaviour and contains a commitment by government to establish a charter of public service values.

    Fourth, it respects the constitutional principles of ministerial responsibility and does not seek to modify them indirectly or inadvertently by other means, such as granting the proposed public service integrity commissioner real decision-making power based on his or her interpretation of something so elusive as the public interest. Instead, the bill allows the commissioner to draw wrongdoing to the attention of responsible ministers when deputy ministers and CEOs are unresponsive. This focuses accountability where it belongs in our system of government, namely with responsible ministers who are answerable to Parliament.

    The bill extends the scope of coverage of the existing internal disclosure policy to cover non-departmental bodies, such as crown corporations. It recognizes that it's preferable, if at all possible, to deal with wrongdoing internally in order to limit the damage to the careers of individual public employees and to the operations and reputations of the organizations they serve. It requires each deputy minister or chief executive officer in the federal public sector to establish an internal disclosure mechanism and it provides an additional avenue of disclosure, subject to a limited set of conditions, to a public service integrity commission.

    It provides for the involvement of Parliament in the appointment of the commissioner and allows him or her to make special reports to Parliament if needed. It provides protection for public employees against reprisal arising from their decision to complain about wrongdoing, and it allows employees to take complaints about reprisals to one or two quasi-judicial employment tribunals, and beyond that, to the courts.

    I think one of the witnesses who came before you suggested that the Public Service Modernization Act blocked appeals to the court. I went out and sought a legal opinion on this, and I think it's simply inaccurate. I think there still is, in the worst-case scenario, an avenue of appeal to the courts.

    This bill includes the usual types of wrongdoing found in statutes in other jurisdictions and allows for disclosure to outsiders respecting more serious forms of wrongdoing, such as violations of the law that have occurred or are about to occur, and when speed in terms of disclosure is required.

    Finally, it attaches potentially serious consequences both to frivolous or vexatious allegations of wrongdoing and to proven reprisals.

    In summary, there is no doubt, in my opinion, that this bill represents a good first step toward the creation of a balanced, fair, and efficient internal disclosure policy framework. I don't agree with critics who argue that the bill is worse than having no law. Insistence on crafting “perfect” legislation could kill immediate reform, and just in support of that point, I would observe that I was a member of the external advisory committee to the federal task force on access to information in 2001-2002, and the freedom of information lobby did everything in their power to discredit that whole activity. As a result of that, the ministers had no encouragement to try to amend the 20-year-old access to information law.

    When you insist on perfection, you may not get even a start toward improvement.

    Most countries have found it necessary to amend their legislation in the light of their experience, and Canada will be no exception in this regard. Critics of the bill who say it's too flawed and too weak make a number of points, some of which I regard as more persuasive than others.

À  (1035)  

    The first point they have criticized is that being part of government, the commissioner will not appear to be independent and will not inspire the confidence of public employees. The present public service integrity officer, however, has reported no interference in his operations, even though he is located within the Treasury Board Secretariat. The bill creates a number of conditions to provide for both the reality and the appearance of independence. Other countries, like Australia, the United Kingdom and the United States, rely on oversight bodies within the executive branches of government, but the issue of location of the oversight body has not been as serious an issue as it has become in Canada.

    Critics suggest that the proposed commissioner should join the growing ranks of officers of Parliament, implying that this status guarantees independence. However, as the Radwanski affair makes clear, the use of the officer of Parliament model does not guarantee responsible and accountable behaviour.

    In the past, Parliament has failed to fulfil its scrutiny obligations with respect to officers of Parliament. Finding the right balance between independence and accountability for such oversight bodies cannot be done in the abstract. It requires careful examination of the mandate, appointment, budgeting, staffing, reporting, and accountability mechanisms for officers of Parliament.

    In an article that appeared last fall in the journal Canadian Public Administration, I discuss at length those details of independence/accountability arrangements and how they need to be balanced to achieve the appropriate scrutiny of officers of Parliament.

    Critics complain about the two-tiered process for making disclosure, with a preference established for raising matters first within their department or agency. For reasons stated earlier, I believe it is preferable for employees to first seek internal resolution of concerns.

    The Public Interest Disclosure Act in the United Kingdom provides that employees must, in most cases, complain first within their departments and subsequently they can file a complaint with the civil service commissioners. The advocacy group in the U.K., the Public Concern at Work, has criticized other features of the U.K. whistle-blowing scheme, but the requirement to use internal avenues first has not been a significant issue. Australia also requires that employees normally go to permanent heads--equivalent to our deputy ministers--first.

    Critics have described the two tribunals that will deal with grievances arising about reprisal--the Public Service Staff Relations Board and the Canadian Industrial Relations Board--as merely administrative bodies that lack knowledge of whistle-blowing issues. It is more accurate, I believe, to describe these boards as quasi-judicial, and over time they will develop specialized knowledge on the topic of whistle-blowing.

    In the United Kingdom again, the advocacy group found in its review that the employment tribunals used there and the courts had applied the Public Interest Disclosure Act rigorously.

    In summary, the main criticisms of the bill must be taken seriously but should not be an obstacle to passage, in my judgment.

    I finish with three possible improvements to the bill.

    For administrative and accounting purposes, I understand that the commissioner's office will be on the books of the new Public Service Human Resources Management Agency, which reports to the President of the Queen's Privy Council. While technically part of the new agency, the commissioner will have his own premises, staff and systems. If this arrangement still gives rise to the concern that the government could stifle the new body, provision could be made for the right of the public service integrity commissioner to complain to Parliament about underfunding or restrictions in such areas as staffing and classification levels.

    Secondly, relying as the bill does on the ombudsman model of investigation, persuasion, and publicity, it is more appropriate that the public service integrity commissioner have stronger investigatory powers--being able to enter premises, summon witnesses, and compel the production of documents. However, the commissioner, in the exercise of those powers, should himself or herself be subject to due process and fairness in their operations.

    Finally, proposed subsection 16(3) of the bill requires an employee to make a complaint of reprisal within 30 days of when they knew, or ought to have known, that some negative consequences for their career had resulted from a disclosure action. Thirty days seems like too short a period. Most states in the United States--and there are 40 of them now that have such laws--allow for 60 to 90 days. Even that length of time could be too short. Perhaps a calendar year from the time of the initial disclosure, in combination with a reverse onus on the employer to prove that adverse consequences were not a direct result of disclosure action, would be fairer to employees, who have a great deal to lose and far fewer resources than the government.

À  (1040)  

    A further source of leverage over ministers and departments could be the commissioner's authority to issue, at any time, a special report to Parliament. Rarely used, this authority could be a source of significant influence since both ministers and senior public officials generally want to avoid bad report cards.

    Should Parliament recommend in favour of an officer of Parliament model, I would recommend that MPs and senators take up the unfinished business of creating a more consistent framework of direction and accountability for such distinctive bodies as officers of Parliament. And Parliament must assume its obligation to provide more regular, systematic, and constructive scrutiny of their operations.

    Thank you for your attention. I'd be pleased to answer any questions you have.

    The Chair: Thank you.

    Colleagues, I understand the transport committee has this room at 11 o'clock, so I would ask you to please be as concise as possible.

    Mr. Forseth.

    Mr. Paul Forseth: Thank you.

    I appreciate your last comments, particularly about calling into question the issue of what really is an officer of Parliament. My theme is that we have a kind of hybrid and that if we truly have independent officers of Parliament, they should be screened, hired, paid for, and report to Parliament. They should not be order in council appointments at all but should be dealt with totally through the Board of Internal Economy and be a parliamentary issue alone, so that they truly are officers of Parliament.

    One of the other things you talked about was that in spite of some of the other testimony we heard, there still may be the possibility of appeals to the courts, despite the previous Bill C-25 we passed. Perhaps you could briefly comment on that now, but later provide some of the background material--you said you had a legal opinion or whatever--and you could submit that to the committee and really help us on that point.

    Another thing you could comment about...you were saying we shouldn't get overly optimistic about what this Bill C-25 is going to deliver, but you are still saying it's worth doing and that we need to perhaps, outside the legislation, change a lot of the management protocols and style of management to change the larger culture. Perhaps you could help us with some of those things as well.

À  (1045)  

    Prof. Paul Thomas: First, on officers of Parliament, I think the primary relationship of accountability should be to Parliament, not to the political executive and to the central agencies of government. In the longer paper I've written on officers of Parliament, I go into some detail about mandate, appointment, budgeting, staffing, all those kinds of things. The Auditor General, amongst officers of Parliament, has a kind of distinctive power in the capacity to complain about a lack of resourcing for her office, if she feels she can't perform her duties.

    I will submit something to you, through the clerk, on the issue of whether the relevant section in the Public Service Modernization Act represents any restriction on the operation of a whistle-blowing law. My understanding is that there are two different redress mechanisms and the one doesn't block the other from operation.

    On the matter of culture, I'm doing some work now on trust within organizations--control and trust, their relationship. Transforming cultures takes times. It takes years--decades even--and the public service is risk-averse in many ways, partly because all the emphasis from ministers is about error-free government, partly because Parliament wants to highlight the mistakes that are made and the unwanted developments that take place, so it creates an environment of safety within the public service, and concern. That contributes to the reluctance of public servants to come forward and the fact that you can't, longer term, guarantee that there won't be damage to your career.

    The Chair: Thank you.

    Madame Guay.

[Translation]

    Ms. Monique Guay: Thank you for your remarks. I will move quickly because we don't have a lot of time. It is a pity because you have done excellent work which will be extremely useful to us when proposing some amendments.

    The vast majority of witnesses who appeared before the committee asked us to amend the bill, in particular with respect to the commissioner. They want the commissioner to report directly to Parliament, just as the Auditor General does. I would like to hear your opinion on that.

    Secondly, what do you think of the fact that a Crown corporation such as the CBC wants to be exempt from the act? We cannot exempt a Crown corporation. If we exempt the CBC, we would eventually have to exempt Canada Post. So I would also like to know your opinion on that matter.

[English]

    Prof. Paul Thomas: Thank you.

    I'm not sure reporting through a minister is a fatal weakness. The Public Service Commission reports annually to Parliament and can make exceptional reports outside the annual calendar, and I don't know of instances where reports have been held back by ministers.

[Translation]

    Ms. Monique Guay: They have 10 days. Ministers have 10 days to table a report or not. Therefore, there is some leeway set out in the bill.

[English]

    Prof. Paul Thomas: Yes, and I guess it depends on how timely you think a report is. There may be imminent wrongdoing, or something is so serious in terms of a threat to the health and safety of Canadians, from damage to the environment or something like that, that you may want some way to ensure more immediate reporting. In most instances ministers are going to be reluctant to expose themselves to the criticism they held back on a report. Now, you may say the system will fail in the worst cases, the ones where it's most urgent that Parliament hear about something that's gone seriously wrong.

    On crown corporations, I don't think you can make the case that any crown corporation should be exempt from this law.

    I served a term as the chair of the board of the Manitoba Telephone System when it was a crown corporation. During that time access to information laws were passed. We were in a competitive environment for part of our business. I didn't think we should get blanket exemption from the access to information law because of that. I thought we should just have more of a case to be made on an individual case-by-case basis as to why certain types of information should not be released.

    From what I've read of the CBC's submission to you and from what I've briefly heard today, I'm not persuaded by their argument.

    The Chair: Thank you.

    Madam Neville.

À  (1050)  

    Ms. Anita Neville (Winnipeg South Centre, Lib.): Thank you.

    I'll be very brief because I may choose to follow up with you at home on this, Professor Thomas.

    In your opening comments you talked about whistle-blowing legislation being value-laden. Further on you said “...what will always matter most to the prevention of wrongdoing is the internalized subjective sense of doing right....” Then further on you talked about the code of conduct. How do we reconcile these? How does one ensure that the culture of fairness of responsibility...? I mean, it is value-laden, and as a government how do we ensure this--or can we?

    Prof. Paul Thomas: Well, legislation will play some part in that. If Parliament debates and passes a law that sends a message to public servants that responsible dissent within an organization is legitimate and that we see value in that when it's done rightly, then that's part of it.

    From my dealings with them over the years, I think members of the public service feel a little bit beleaguered now that they're overseen by a number of bodies. We've multiplied the number of officers of Parliament whose job it is to provide scrutiny on behalf of Parliament and to protect citizens. That does create what I described earlier as a kind of risk-averse culture. I think they need to see leadership at the top of the public service that demonstrates integrity, honesty, and open communication and that encourages that to take place, but it won't happen overnight, as I said.

    In the aftermath of things like HRDC, Paul Cochrane, the Virginia Fontaine Memorial Treatment Centre, and now the sponsorship scandal, and earlier Somalia, the ethical foundations of the public service have been shaken. Often they feel they're the target of criticism for problems that arise not necessarily from their actions but from pressures within the system and pressures from ministers to do things. We're going to have to get to a point where we shift our focus from accountability as naming, blaming, and shaming to more accountability as learning and constructive improvement.

    Not to flatter this committee unduly, but in some of the testimony I've read from this committee over the last several years, members have related to issues of government in a more constructive, non-partisan way, and that has to happen more. The issues are often not issues of political ideology; they're more about good government in a general sense.

    Parliament contributes to the climate and the culture within the public service. When you haul public servants up here and ask them to testify in public, you send chills down their spine. They don't like coming here because they're not sure what the rules of engagement are.

    The Chair: Mr. Shepherd, and then Mr. Lanctôt.

    Mr. Alex Shepherd: This is just a general question following up on what we talked about: this evolution of culture in the civil service, the theory about letting the managers manage, loosening up on the decision-making, and the fact that what we really want is an innovative civil service pushing us through the 21st century. My short question would be, to what extent does this legislation impede that? It's just the reverse of that because of the whole concept of risk taking. Why take a risk if you're going to have these kinds of consequences?

    Prof. Paul Thomas: There is undoubtedly a tension there, and I think in the early part of the nineties all the emphasis was on removing excessive controls; control almost disappeared from the lexicon of official Ottawa. The Treasury Board Secretariat, on which I served as a member of the advisory committee to the former president, dropped that language in a lot of it. It was all about empowerment of public servants and risk taking, as you say, but then a series of events happened--unwanted events, embarrassing events--and the pendulum swung back in favour of control again.

    I liken it to the Goldilocks principle: we want our porridge just right, neither too hot nor too cold. We want balance, and finding that balance is tricky. It's different in a public sector organization from a private sector one. In a private sector firm you could grant relative freedom and autonomy to managers to risk the company--to bet the company, in effect--because they would pay a serious price.... There aren't the same expectations of accountability that surround a public organization.

À  (1055)  

    The Chair: I want to go to Mr. Lanctôt for a quick question and Mr. Martin for a quick question.

    Unfortunately, we'll have to leave the room.

[Translation]

    Mr. Robert Lanctôt: Thank you.

    I would like to hear your comments on an issue that irks me quite a bit, because you seem to be on the same wavelength as I am.

    Mr. Thomas, sometimes appearances are more important than reality. How would it appear if this integrity commissioner in fact came under, just as the bill sets out, the Treasury Board Secretariat, when for so many years we had policies which "really didn't work"? Wouldn't an integrity officer accountable to Parliament only be there for appearance sake, or would the position truly allow for greater independence?

[English]

    Prof. Paul Thomas: Appearances do matter. I think Dr. Keyserlingk is right in saying public servants are more nervous about approaching someone who's housed within an entity that's mainly about control and that represents the employer, the Treasury Board Secretariat. Now, the new agency supposedly is not part of the Treasury Board Secretariat, but I think the original location of the public service integrity officer within the Treasury Board was probably wrong.

    If I were starting out, I might put it in the Public Service Commission, but that might confuse people in terms of whether this was all about staffing matters. It's about the public interest; it's not just about staffing issues, so there's that question.

    Now, as to whether an officer of Parliament would have more independence, I would suspect so. From work I've done with the Office of the Auditor General and with John Reid in the information commissioner's office, informally I get the sense that their dealings with Treasury Board are more negotiations as opposed to command and control. If they need additional resources, they get to bargain with the Treasury Board over that, whereas in some instances the Treasury Board Secretariat simply tells a deputy minister or his ADM of finance to live with the resources they have, and there isn't much room for negotiation.

    The Chair: Mr. Martin.

    Mr. Pat Martin: Thank you.

    I'll be brief because we've spoken about this before and I've read your brief.

    You seem to be a booster of the bill and I'm not. I don't like the bill; you seem to like everything about it.

    The one thing I would comment on now is that you seem to feel it's okay that the employee, if he feels he has suffered some reprisal, has to find recourse at the CIRB or the Public Service Staff Relations Board. From my trade union background I know what it's like going to arbitration: first, it'll be 18 months or two years by the time you get through, and second, innocent people are found guilty and guilty people are found innocent in any quasi-judicial setting.

    Why don't you accept that if the bill is specific about discipline for those making complaints in bad faith and malicious and vexatious complaints, why is it not specific about discipline for those who punish whistle-blowers? Why is it weighted so much against the whistle-blower and in favour of management? Do you not see that as a problem?

    Prof. Paul Thomas: I have two quick points. I recognize that you have to adjourn.

    In terms of symbolism, employees should not be bought off symbolically either. They shouldn't have any illusions under this bill that there isn't the risk of real damage to their careers. I agree with you on the point that you have to provide as much protection as possible.

    However, giving the commissioner the time to reappoint someone or redress grievances gives real decision-making powers. I don't think it's appropriate under our system of government. You know more about the proceedings before the tribunals than I probably do, but it seems to me that employees want to have some ultimate legal forum where they can protect their rights. It probably has to be a quasi-judicial body, but with the opportunity for mediation by the commissioner before it gets to that stage.

    The Chair: Mr. Thomas, I think the committee really appreciates the clarity of your presentation that was circulated. You have raised some very interesting points. You certainly highlighted some of the areas in which we still have work to do, because there is not a total consensus on every aspect of the bill, and you simply have raised the fact that a number of jurisdictions have this.

    The transport committee is giving us another minute or two, simply because it is waiting for a quorum, so we're not going to wet our pants.

    Also, Lynne has a quick question.

    Professor Thomas, you finished your presentation with regard to the suggestion that we need a regime or a mechanism to do a better review on accountability. You're talking about the parliamentarians.

Á  (1100)  

    Prof. Paul Thomas: Yes.

    The Chair: Do you have any opinion whatsoever as to whether parliamentarians have the resources to do what you think we should be doing?

    Prof. Paul Thomas: The short answer is I don't think you have the resources. I think that austerity for the committee system took its toll during the 1990s. I think it's a big job, given the vast scope and complexity of the public service and the non-departmental bodies within government.

    One of the suggestions I've been peddling for a while, and getting no takers on, is the idea of a joint committee of the Senate and the House of Commons. In my studies of the joint committee on regulations and statutory instruments, I reflected that often the Senate contingent was the core of the committee and did a lot of the hard work.

    The Chair: Okay.

    Finally, Ms. Yelich.

    Mrs. Lynne Yelich: The Treasury Board manuals for the policies and regulations are not an act of Parliament or a regulation. Should they be? They're not an act; they're only policy.

    Prof. Paul Thomas: I'm not sure I have an opinion on that. In other countries, they're not either, particularly in Australia. I shouldn't speak too broadly because I don't know about all countries.

    I'm doing some work now on the communications policy of the Government of Canada. I wouldn't want to have to try to translate that into legislation; it's almost beyond being rescued.

    Mr. Paul Forseth: What about the regime of ethics?

    Prof. Paul Thomas: I could see passage of a public service act, as Australia did in 1999, that contains a statement of values and principles. It's pretty general and vague. On a day-to-day basis, if you're facing an ethical dilemma, you wouldn't be able to read it and know what to do on Monday morning.

    The Chair: Professor Thomas, thank you for your constructive input for the committee with regard to Bill C-25.

    Thank you for your presentation. We will certainly want to pursue those matters further.

    We're adjourned.