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37th PARLIAMENT, 3rd SESSION

Standing Committee on Government Operations and Estimates

EVIDENCE

CONTENTS

Thursday, May 13, 2004

0905

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

Mrs. Anne Kothawala (President and Chief Executive Officer, Canadian Newspaper Association)

0910

The Chair

Mr. Marc-André Blanchard (President, Ad IDEM (Advocates in Defence of Expression in the Media))

0915

0920

The Chair

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

0925

Mr. Daniel Henry (Past President, Ad IDEM (Advocates in Defence of Expression in the Media))

Mr. Paul Forseth

Mr. Daniel Henry

Mr. Paul Forseth

Mr. Daniel Henry

Mr. Paul Forseth

Mr. Daniel Henry

Mr. Paul Forseth

0930

Mr. Marc-André Blanchard

Mr. Paul Forseth

Mr. Daniel Henry

Mr. Marc-André Blanchard

The Chair

Mr. Daniel Henry

The Chair

Mr. Daniel Henry

The Chair

Mr. Daniel Henry

Mr. Marc-André Blanchard

The Chair

Mr. Marc-André Blanchard

0935

The Chair

Mrs. Monique Guay (Laurentides, BQ)

Mr. Marc-André Blanchard

Mrs. Monique Guay

Mr. Marc-André Blanchard

0940

Mrs. Monique Guay

Mr. Marc-André Blanchard

Mr. Daniel Henry

Mrs. Monique Guay

Mr. Daniel Henry

The Chair

Mrs. Monique Guay

Mr. Daniel Henry

0945

The Chair

Mr. Robert Lanctôt (Châteauguay, Lib.)

The Chair

Mr. Robert Lanctôt

Mr. Marc-André Blanchard

0950

Mr. Robert Lanctôt

Mr. Marc-André Blanchard

Mr. Robert Lanctôt

The Chair

Mr. Robert Lanctôt

The Chair

Mr. Marc-André Blanchard

The Chair

Mr. Marc-André Blanchard

Mrs. Anne Kothawala

The Chair

Mrs. Anne Kothawala

The Chair

Mr. Robert Lanctôt

The Chair

Mr. Leon Benoit (Lakeland, CPC)

Mr. Marc-André Blanchard

Mr. Leon Benoit

Mr. Marc-André Blanchard

Mr. Daniel Henry

Mr. Leon Benoit

Mr. Daniel Henry

Mr. Leon Benoit

0955

Mr. Marc-André Blanchard

Mr. Daniel Henry

Mr. Leon Benoit

Mr. Marc-André Blanchard

Mr. Daniel Henry

The Chair

Mr. Leon Benoit

The Chair

Mr. Roger Gaudet (Berthier—Montcalm, BQ)

Mr. Marc-André Blanchard

Mr. Roger Gaudet

Mr. Marc-André Blanchard

Mr. Roger Gaudet

Mr. Marc-André Blanchard

Mr. Roger Gaudet

Mr. Marc-André Blanchard

1000

Mr. Roger Gaudet

Mr. Marc-André Blanchard

Mr. Roger Gaudet

Mr. Marc-André Blanchard

Mr. Roger Gaudet

Mr. Marc-André Blanchard

Mr. Roger Gaudet

The Chair

Mr. Robert Lanctôt

1005

Mr. Marc-André Blanchard

Mr. Robert Lanctôt

Mr. Marc-André Blanchard

Mr. Robert Lanctôt

Mr. Marc-André Blanchard

Mr. Robert Lanctôt

Mr. Marc-André Blanchard

Mr. Robert Lanctôt

Mr. Marc-André Blanchard

Mr. Robert Lanctôt

Mr. Marc-André Blanchard

Mr. Robert Lanctôt

Mr. Marc-André Blanchard

Mr. Robert Lanctôt

Mr. Marc-André Blanchard

The Chair

Mr. Alex Shepherd (Durham, Lib.)

Mr. Daniel Henry

1010

The Chair

Mrs. Lynne Yelich (Blackstrap, CPC)

Mrs. Anne Kothawala

Mrs. Lynne Yelich

The Chair

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

Mr. Daniel Henry

Ms. Anita Neville

Mr. Marc-André Blanchard

1015

The Chair

Mrs. Lynne Yelich

Mr. Daniel Henry

Mrs. Lynne Yelich

Mr. Daniel Henry

Mrs. Lynne Yelich

The Chair

Mr. Daniel Henry

Mr. Marc-André Blanchard

Mr. Daniel Henry

The Chair

1020

Mr. Daniel Henry

The Chair

Mr. Daniel Henry

The Chair

Mr. Daniel Henry

The Chair

Mr. Daniel Henry

The Chair

Mr. Daniel Henry

The Chair

Mr. Daniel Henry

The Chair

Mr. Daniel Henry

The Chair

Mr. Marc-André Blanchard

Mr. Daniel Henry

The Chair

1030

Mr. Daniel Raunet (President, Syndicat des communications de Radio-Canada)

The Chair

Mr. Daniel Raunet

The Chair

Mr. Daniel Raunet

The Chair

1035

Mr. Daniel Raunet

1040

The Chair

Mrs. Chantal Larouche (President, Fédération nationale des communications)

The Chair

Mrs. Chantal Larouche

The Chair

Ms. Lise Lareau (National President, Canadian Media Guild)

1045

1050

The Chair

Staff Sergeant Gaétan Delisle (President of the Association des membres de la police montée du Québec Inc.; Canadian Association of Mounted Police)

1055

1100

The Chair

Mr. Paul Forseth

S/Sgt Gaétan Delisle

The Chair

Mr. Leon Benoit

S/Sgt Gaétan Delisle

Mr. Leon Benoit

S/Sgt Gaétan Delisle

1105

Mr. Leon Benoit

S/Sgt Gaétan Delisle

Mr. Leon Benoit

S/Sgt Gaétan Delisle

Mr. Leon Benoit

Ms. Lise Lareau

The Chair

Mrs. Monique Guay

1110

S/Sgt Gaétan Delisle

Mrs. Monique Guay

S/Sgt Gaétan Delisle

Mrs. Monique Guay

S/Sgt Gaétan Delisle

Mrs. Monique Guay

S/Sgt Gaétan Delisle

Mrs. Monique Guay

S/Sgt Gaétan Delisle

Mrs. Monique Guay

S/Sgt Gaétan Delisle

Mrs. Monique Guay

Mr. Daniel Raunet

1115

Mrs. Monique Guay

Mr. Daniel Raunet

Mrs. Monique Guay

Mrs. Chantal Larouche

Mrs. Monique Guay

Ms. Lise Lareau

1120

Mrs. Monique Guay

S/Sgt Gaétan Delisle

Mrs. Monique Guay

S/Sgt Gaétan Delisle

The Chair

Mr. Robert Lanctôt

S/Sgt Gaétan Delisle

1125

Mr. Robert Lanctôt

Mr. Daniel Raunet

Mr. Robert Lanctôt

1130

Mr. Daniel Raunet

Mr. Robert Lanctôt

Mr. Daniel Raunet

The Chair

Mrs. Chantal Larouche

Mr. Robert Lanctôt

The Chair

Ms. Lise Lareau

1135

The Chair

Ms. Lise Lareau

The Chair

Ms. Lise Lareau

The Chair

Mr. Éric Lévesque (Legal Counsel, Fédération nationale des communications)

Mr. Paul Forseth

1140

Ms. Lise Lareau

Mr. Daniel Raunet

Mr. Paul Forseth

Mr. Daniel Raunet

Mr. Paul Forseth

Mr. Daniel Raunet

Mr. Paul Forseth

1145

Ms. Lise Lareau

Mr. Paul Forseth

Ms. Lise Lareau

Mr. Paul Forseth

The Chair

S/Sgt Gaétan Delisle

The Chair

Mr. Roger Gaudet

Mr. Daniel Raunet

1150

Mrs. Chantal Larouche

Mr. Robert Lanctôt

Mrs. Chantal Larouche

The Chair

S/Sgt Gaétan Delisle

The Chair

Mr. Daniel Raunet

The Chair

Mr. Daniel Raunet

The Chair

1155

Ms. Lise Lareau

The Chair

Ms. Lise Lareau

The Chair

1200

Ms. Lise Lareau

S/Sgt Gaétan Delisle

The Chair

S/Sgt Gaétan Delisle

The Chair

Mr. Daniel Raunet

The Chair

CANADA

Standing Committee on Government Operations and Estimates

NUMBER 015

3rd SESSION

37th PARLIAMENT

EVIDENCE

Thursday, May 13, 2004

[Recorded by Electronic Apparatus]

¿ (0905)

[English]

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

Pursuant to the order of reference of Tuesday, April 20, 2004, we are resuming consideration of Bill C-25, an act to establish a procedure for the disclosure of wrongdoings in the public sector, including the protection of persons who disclose the wrongdoings.

We welcome this morning our first panel of witnesses, from Ad IDEM--Advocates in Defence of Expression in the Media--Mr. Daniel Henry, past president, and Mr. Marc-André Blanchard, president.

We also have Anne Kothawala, president and chief executive officer, from the Canadian Newspaper Association.

Good morning, and welcome to all of you. I understand that each organization has a statement to make to the committee, and I'm very sure committee members will have questions for you, so please proceed.

Who would like to start?

Mrs. Anne Kothawala (President and Chief Executive Officer, Canadian Newspaper Association): Thank you very much, honourable members.

The Canadian Newspaper Association is a non-profit industry association that represents daily newspapers, both French and English, from coast to coast. Our mandate is to promote and protect a free press. Freedom of the press and freedom of expression are central pillars of our democratic system. Their importance has been recognized by the Supreme Court of Canada:

It is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression. Indeed a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions.

Bill C-25 as it stands will diminish these freedoms. It must be amended. As it stands, this legislation fails whistle-blowers and fails the public's right to know.

The media are watchdogs of government. Our journalists perform a vital public service by telling things as they are and by discerning fact from spin and truth from deception. Truth can make people uncomfortable. We sometimes talk about the naked truth as sometimes shocking. People find ways of covering it up. They bury it, hide it, or use threats to force others not to speak it. Truth can have great destructive power. It can destroy relationships and careers, assumptions and beliefs. It can bring down institutions, corporations, and governments.

A decade ago Shidane Arone was a household name in Canada. That's the Somali teenager beaten to death in custody by members of Canada's Airborne Regiment. The deaths of Arone and two other Somalis may never have come to light had it not been for the courage of a whistle-blower, Major Barry Armstrong. We only began to learn of these terrible truths after letters from Major Armstrong were leaked to the media. In them, Armstrong, a military doctor, described execution-style killings of Somalis by Canadian soldiers. Armstrong had taken his story up the line but he feared it would be swept under the carpet. We know today, as a result of the work of Armstrong and an enterprising journalist, that the Canadian military was prepared to go to extreme lengths to hide facts about its actions in Somalia.

Fast forward to April 2001. An anonymous brown-paper envelope arrives on the desk of the National Post's Andrew McIntosh, who's been investigating the Prime Minister's business dealings. McIntosh wants to find out if the Prime Minister had a conflict of interest in the sale of the Grand-Mère Golf Club in his home riding. In the envelope is a document that appears to prove this, but suspecting forgery, the RCMP gets a search warrant to seize the document and conduct DNA testing to see who had created it.

Lawyers for the National Post, The Globe and Mail, and the CBC mounted a legal challenge to protect the principle of confidential sources. In a major decision earlier this year, Judge Mary Benotto agreed:

Often, the more explosive the story is, the greater the risk to the informant if he or she is exposed. Reputations, livelihoods and security may be at stake. (...) Without confidential sources, many important stories of considerable public interest would not have been published. Confidential sources are essential to the effective functioning of the media in a free and democratic society.

Of particular relevance to Bill C-25 are Judge Benotto's observations on confidentiality:

If employee confidentiality were to trump conscience, there would be a licence for corporations, governments and other employers to operate without accountability. It is only through the press that most individuals can learn of what is transpiring in government and come to their own assessment of the institution and its action.

Honourable members, protecting sources and protecting whistle-blowers are indeed two sides of the same coin, but Bill C-25 threatens democratic freedoms and the role of the media in keeping governments accountable by its failing to afford adequate protection to public servants who report wrongdoing to the media.

¿ (0910)

Under Bill C-25, disclosing wrongdoing to journalists is punishable, except in very limited exceptions. The test is simply too narrow and the options for disclosure too limited.

There are many reasons why public servants may not be able to report up the line or to the commissioner. We are also concerned that Bill C-25, as written, could be vulnerable to constitutional challenge for its restrictions on freedom of expression.

My colleagues from Ad IDEM will speak specifically to certain subclauses. I would like to go on record to support their recommendations on deletion of paragraphs 9(b) and 9(c) and the redrafting of clause 13, in order not to deter but to encourage timely and effective whistle-blowing.

If this law acts to deter and not truly protect whistle-blowers, the objective of strengthening Canadian democracy will not be met. Media have a much more important role to play in society than battling governments in the courts over protection of sources, access to information, publication bans, and other impediments to the public's right to know.

Honourable members, with an election looming, you have before you an opportunity to show leadership and ensure that the public interest is served by giving whistle-blowers the protection of law.

Thank you very much. I'd be pleased to answer any questions.

The Chair: Thank you very much. I appreciate it.

Mr. Blanchard.

Mr. Marc-André Blanchard (President, Ad IDEM (Advocates in Defence of Expression in the Media)): Thank you, Mr. Chairman.

Honourable members, Ad IDEM was formed in 1998 as a national association of lawyers who practise media law, representing most of the major media organizations and their journalists across Canada. Our members have day-to-day experience in dealing with laws that impact on freedom of expression affecting the role of journalists and the content of what the media can publish and broadcast.

One of our principal goals is to enlarge and enhance the freedom of expression of all Canadians, recognizing that many in this country, as listeners and readers, rely on the media to provide them with information.

Bill C-25 begins with a noble objective: protection of government whistle-blowers. Our members are very conscious of the necessity to provide this protection. When individuals come forward to inform the public through our client media organizations and their journalists, they should not only be protected, but often rewarded.

The fundamental flaw in Bill C-25, as currently drafted, is it presumes that whistle-blowers owe an iron-clad guarantee to their employers that they will never disclose information to parliamentarians, the media, or the public, except in very narrowly defined emergency circumstances. Until now there has been no such guarantee, and one ought not be created now.

The duty of loyalty does not justify a duty of silence. Plugging and controlling leaks may be necessary and useful to military or competitive commercial operations, but to the extent it is applied to controlling the public's access to information about the general operation of government, it tends to serve the interests of the government at the expense of public debate and the proper functioning of our democracy. As a result, as currently drafted, this bill contributes substantially to the democratic deficit this government has pledged to eliminate.

Public servants disclosing wrongdoings directly to parliamentarians, the media, or the public would face disciplinary action or termination of employment, as per clause 9 of the bill, with no apparent general public interest defence. The onus is on the whistle-blower to demonstrate that he or she believes, on reasonable grounds, that there is not sufficient time to make the disclosure under the act, and that there is either a serious offence being committed, or an imminent and serious danger to life, health, safety, or the environment. Yet it is the threat of wrongdoing being disclosed to the public that deters wrongdoing in the first place.

The media and its journalists serve society by acting as a conduit for public servants who notice deficiencies in the delivery of government services. Minor disclosures rarely result in publication. Serious and significant disclosures more often do.

To encourage effective whistle-blowing, we recommend that whistle-blowers be given a choice: report up the line, and if necessary to the public service integrity commissioner; or talk to parliamentarians, the media, or other persons in positions to investigate or initiate corrective action. Each option offers benefits to the public, and the availability of each will spur the other to more effective action.

To that end, we have proposed amendments to Bill C-25 that would more carefully reflect the duty of loyalty set out in Canadian jurisprudence and the philosophy underlying existing access to information legislation.

Bill C-25 should honour and further the following basic principles enunciated in section 2 of the Access to Information Act: government information should be available to the public, and necessary exemptions to the right of access should be limited and specific.

Public servants should be encouraged to disclose government information of public interest, not be threatened with termination of employment for disclosing any information outside the limited exceptions built into its provisions. While it is true that paragraph 9(c) permits disclosure mandated by any other act of Parliament, presumably including the Access to Information Act, that paragraph and other sections in Bill C-25 begin from the opposite principle to that quoted above--that government information should not be disclosed to someone outside government unless the situation fits within very limited exceptions.

Freedom of expression, according to the Charter of Rights and Freedoms, is a fundamental right of all Canadians. It is useful to be reminded from time to time just how important this right is. Justice Cory of the Supreme Court of Canada, in the Edmonton Journal v. Alberta, in 1989 said:

The concept of free and uninhibited speech permeates all truly democratic societies and institutions. The vital importance of the concept cannot be over-emphasized. No doubt that was the reason why the framers of the Charter set forth s. 2(b) in absolute terms which distinguishes it, for example, from s. 8 of the Charter which guarantees the qualified right to be secure from unreasonable search. It seems that the rights enshrined in s. 2(b) should therefore only be restricted in the clearest of circumstances.

¿ (0915)

Also, the “duty of loyalty” as defined by the Supreme Court of Canada does not demand absolute silence from public servants. In the Fraser decision, Chief Justice Dickson, as he then was, said:

Where a matter is of legitimate public concern requiring a public debate, the duty of loyalty cannot be absolute to the extent of preventing public disclosure by a government official. The common law duty of loyalty does not impose unquestioning silence. As explained in Fraser, the duty of loyalty is qualified: “some speech by public servants concerning public issues is permitted.” It is my understanding that these exceptions to the common law rule may be justified wherever the public interest is served. In this regard, the importance of the public interest in disclosing of wrongdoing, referred to as “the defence of whistleblowing”, has been recognized in other jurisdictions as an exception to the common law duty of loyalty.

Significantly, Bill C-25 adopts only part of this formulation of the common-law whistle-blowing defence. Section 13 only permits disclosure where “there is not sufficient time” and only for “serious offences” or “imminent and serious danger”. It has dropped the equally valid and independent whistle-blowing defence, where “the public servant's criticism” has “no impact on his or her ability to perform effectively the duties of a public servant or on the public perception of that ability”.

As a result, while Bill C-25 pays homage to “a duty of loyalty” in its preamble, it expands it broadly and unacceptably in the specific provisions of the proposed act.

To realize the principles already enshrined in the Access to Information Act, we recommend that paragraph 9(b) and paragraph 9(c) of the bill should be deleted. These provisions would simply deter good-faith whistle-blowers from coming forward for fear that, despite their best intentions, their actions would be misinterpreted.

Neither provision is necessary. The kinds of disclosures contemplated by paragraph 9(b) would be deterred in the normal course of social convention. In the extreme, they would also be deterred by potential actions for defamation.

Disclosures contemplated by paragraph 9(c) are covered by other statutes. This provision merely acts as a redundant offence, and, in emphasizing the risk of coming forward, deters legitimate whistle-blowing.

Clause 13 should also be redrafted to conform more closely to existing law on the duty of loyalty and to encourage effective and timely whistle-blowing. You will find our brief suggested amendments, which we have filed in italics in the text of our remarks.

While we understand that mismanagement and waste in every department of government and every crown corporation should be dealt with, we cannot accept that the provisions of Bill C-25 are the appropriate means to deal with the CBC. Fitting CBC into this bill is like fitting a square peg into a round hole. It is a unique crown corporation that has, as parts of its mandate, independence from government. Bill C-25 deals with public servants. Under subsection 44(3) of the Broadcasting Act, CBC employees are expressly “not officers or servants of Her Majesty”. Given its independent role, which often involves criticism of the government, this attribute of its employees is essential to its ability to function.

The independence of all broadcasters is confirmed in subsection 2(3) of the Broadcasting Act. CBC's specific independence from government is established in subsection 52(1) of the act.

Bill C-25 would not only compromise the CBC by its definitions, but if its provisions were applied to CBC journalists as public servants, it would compromise the freedom to make disclosures about other government institutions, and compromise their ability to gather and present information independently of government in the face of the powers of the public service integrity commissioner to require public servants to cooperate with him or her.

¿ (0920)

Having said this, we understand that CBC should not be exempt from the basic principle that whistle-blowers in it should be protected. We recommend that CBC be encouraged to develop its own internal whistle-blower regime that serves the objective of Bill C-25 but does not compromise its required independence from government.

Whistle-blower legislation provides Parliament with an excellent opportunity to foster open government, free expression, and democracy--all values that are fundamental to our society. We are appreciative of the opportunity to assist you in realizing this goal. We look forward to answering any of the committee's questions in this regard.

Thank you.

The Chair: Thank you for your presentation.

We'll commence the questioning with Mr. Forseth.

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

I'd like you to discuss a little more the case about protecting sources, just what court level we're at--and I take it the Supreme Court itself has not ruled on that matter. Really, as far as absolute privilege or privacy is concerned, I believe the only place we really have it is in solicitor-client privilege. Your talking to your priest in a confessional is still subject to court examination, and so is most everything else subject to court subpoena of documents.

So maybe you could talk a little bit about the whole shift of the law relating to protection of sources in the media and how that would impinge on Bill C-25.

¿ (0925)

Mr. Daniel Henry (Past President, Ad IDEM (Advocates in Defence of Expression in the Media)): The issue was addressed by the Supreme Court of Canada, in obiter, in Regina v. McClure, in 2001. The court said that the relationship here, while not protected by a class privilege, is one that may, on a case-by-case basis, be protected. Examples of such relationships include “doctor-patient, psychologist-patient, journalist-informant, and religious communications”. So the journalist-informant relationship has been acknowledged by the Supreme Court to be one that can be protected by privilege. The scope of that privilege is being developed in the case law.

In a case I was involved in arguing, the prosecution against the National Post and its application to quash the search against it in relation to the “Shawinigate” matter, CBC intervened--I'm a lawyer in-house at CBC--and the court ruled that in that case there were very strong reasons to protect the journalist-informant privilege, based on affidavits from 15 journalists, which were unopposed by the crown. Very strong statements were made in that regard.

One particular comment, which I was going to refer to later, but I might as well put on the record at this point, is:

Sources want confidentiality for a variety of reasons. They may, themselves, be breaching a duty of confidentiality. They may have stolen the information. They may fear economic reprisals. They may lose their jobs. They may fear for their safety. They may fear for the safety of their families. The Crown argues that the actions of these sources should not be encouraged. I disagree. If employee confidentiality were to trump conscience, there would be a licence for corporations, governments, and other employers to operate without accountability.

The recognition of the importance of whistle-blowing is now expressed in this case. I should add that it is being appealed to the Ontario Court of Appeal, but as the matter stands, that's the expression of the law.

Mr. Paul Forseth: Okay. That last statement was by which judge?

Mr. Daniel Henry: Madam Justice Benotto of the Ontario Supreme Court.

Mr. Paul Forseth: I take it the state of the law today, then, is on a case-by-case basis.

Mr. Daniel Henry: Yes.

Mr. Paul Forseth: I think what you've alluded to in your various points of testimony is certainly helpful when as part of your submissions you sight flaws or defects in the bill and actually come forward with your own wording--for example, for section 13. You're saying that paragraphs 9(b) and 9(c) should actually just be struck from the bill. You've given a fair amount of information about the implications of that, how it would work if those were not there.

I really appreciate it, when there is material before a committee, that we don't just complain, but we come up with a constructive alternative.

Mr. Daniel Henry: It was an interesting exercise and a difficult one. In this case the attempt was to more accurately reflect the duty of loyalty that was enunciated by the Supreme Court of Canada.

Mr. Paul Forseth: We had a bit of a to-do in a go-round Tuesday with the CBC. They were citing the arguments of journalistic independence, and I remained unconvinced as to the operations of whistle-blowing within the administration of the CBC itself, whatever that had to do with journalistic independence. Despite what the witnesses had to say, I remained unconvinced. I felt it was a completely spurious argument to make. It was talking about something that had absolutely nothing to do with wrongdoing within a bureaucracy.

I think your position is that CBC should not be included in the bill, but now, because the bill is on the table, we have heard evidence that they're going to get going to actually produce their own regime. Well, if they're going to produce their own regime, why shouldn't it be in the bill?

¿ (0930)

Mr. Marc-André Blanchard: I think the fundamental difference is that the independence of journalists has been recognized by the Supreme Court. In Canadian Broadcasting Corp. v. Lessard in 1991, the Supreme Court, in a search warrant case, said it is very important that journalists not be government's agents and not be unduly restricted by government.

It was quite clear in the intention of the legislature at the time of the Broadcasting Act that for one thing, CBC as a news organization was to be independent from the government in one aspect. We strongly feel that the bill as it is drafted contravenes the Broadcasting Act as it now stands, for one thing.

Second, we find there is a fundamental flaw, because if the employees of the CBC are recognized as being public servants in terms of the whistle-blowing act, technically that would mean that when they obtain information from a whistle-blower or have information concerning the government, they are bound by this act and would need to report to a superior or to the commissioner before they disclose this information to the public, which we feel is in its essence contradictory.

For example, if the CBC wants to report information about the fact that the commissioner is not doing his job properly, it's somewhat difficult for them to go to the commissioner in the first place and say, “Look, we need to report this. We have learned of this, but we need to pass this information in front of you before we make it public.” Just saying it shows how illogical this solution is.

So there are, in our estimation, very strong reasons why the CBC, at least in its journalistic operations, should not be considered bound by this act.

Mr. Paul Forseth: Thank you.

Mr. Daniel Henry: I should add that the CBC has been established historically as a public broadcaster, not a state broadcaster. The duty of loyalty we have been talking about is a duty of neutrality of the public service. It is not a duty an independent broadcaster can logically subscribe to when it is criticizing the government—and is mandated to criticize the government in the same breath.

That's why, no matter how the redrafting is done, it's hard to understand how the corporation could fit within the specific regime set out, which applies to the government as a whole.

The act itself, while it's correct that it's dealing with financial matters, is really at its root dealing with information about financial matters, and it's information that is the lifeblood of an independent CBC—information, though, from a different perspective.

We are saying that as an organization CBC should have a whistleblowing regime. What we are saying is that this whistle-blowing regime should respect its independent nature. The division of the journalistic side from the other side is frankly a very difficult one to come to grips with, because as you know the chain of command on key journalistic issues extends all the way up to the president and the board of directors. It's one corporation; it's not easy to hive off a part of it. But it should definitely have a whistle-blower regime.

Mr. Marc-André Blanchard: I think there are numerous--

The Chair: All right, I think the point has been made.

Here's a quick question, Mr. Henry. Is CTV a public broadcaster?

Mr. Daniel Henry: No.

The Chair: What are they?

Mr. Daniel Henry: They are a broadcaster under the Broadcasting Act. CBC is the national public broadcaster under the Broadcasting Act.

The Chair: You said CBC is a public broadcaster, not a state broadcaster.

Mr. Daniel Henry: Correct.

Mr. Marc-André Blanchard: That's correct.

The Chair: In response to what CTV is, you say they are a broadcaster. Do we now have actually three different models?

Mr. Marc-André Blanchard: There are two different models. There are public broadcasters and broadcasters. We don't have state broadcasters in Canada.

¿ (0935)

The Chair: Okay; that's interesting.

Madame Guay.

[Translation]

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

I looked at your recommendations. We met last Tuesday with representatives from the CBC. Of course, they would like to be exempt from this legislation, but the committee is generally against that proposal. I do not believe that the CBC should be protected against whistle-blowers even if there is Canadian legislation in this regard. I believe that the corporation should be covered by the act. If we allow the CBC to be exempt, the same thing might happen with other Crown corporations such as Canada Post, since they will probably ask for the same thing.

At the end of the meeting with the CBC representatives, they told us that the bill could be amended so that it would work for the CBC. We had proposed that another category be established in clause 2 so that CBC employees would not be defined as public servants. They had a great deal of difficulty with that. We asked them why they did not want a special category to be set up for them. They did not say no. They were open to the idea.

With respect to paragraphs 9(b) and 9(c), you are right. A number of witnesses have asked us to withdraw those paragraphs from the bill, so that people would not be restricted in their disclosure of wrongdoings and would not decide against the disclosure if they did not meet a given criterion.

You talk about journalistic independence. I looked at the amendment that you are proposing to clause 13. We will consider it. It is interesting. With respect to journalistic independence, I think that we need to balance things out and take a very logical approach. There is nothing in the bill that forces anyone to disclose wrongdoing. People have the option of doing so, but they do not have to. So we need to be logical in all this.

I would like to hear your comments about the commissioner that will be appointed. I will ask you a question that we have asked all the witnesses. Should the commissioner report directly to the House of Commons, a bit like the Auditor General, or through a minister?

Mr. Marc-André Blanchard: If I may, I will make three comments.

Mrs. Monique Guay: Go ahead.

Mr. Marc-André Blanchard: With respect to the CBC, we are of the firm belief that there are much more specific legislative means that could be used to ensure that the CBC is subject to a regime that is identical to the one outlined in Bill C-25.

For example, Bill C-25 could include a provision to require the CBC to establish a regime that is equivalent to the one in this legislation within a prescribed time, which could be six months or a year; otherwise, Bill C-25 would apply. The corporation would thus have to develop a process.

We fundamentally believe that the definition of “public servant” and the hierarchy created in Bill C-25 create very serious problems with respect to the Broadcasting Act, among other things. We strongly feel that very specific legislative means exist and can be used to force entities like the CBC... It is probably a bit of a special case because of its journalistic role, but when we look at the schedule in the bill, which relate to clauses 2 and 3, it is clear that exactly the same thing could be done for other Crown corporations that are mentioned, except that the concerns are not the same.

The legislator's concern should be to ensure that a process of this type is established. I would submit to you that an independent entity like the CBC should have the possibility of setting up its own regime. The legislator can force the CBC to adopt the principles and precepts in the legislation, but the bill would not make CBC employees into public servants. So I believe that there are other legislative means that are much less damaging to the CBC's independence in this context. In my opinion, this is quite a minimal legislative approach in the context. Once again, if the CBC did not comply with the principles in the legislation, when it comes to this exception requiring it to do something, it would become subject to the act, on the one hand.

On the other hand, we thank you for your comments on paragraphs 9(b) and 9(c). As regards clause 13, I would point out that, although we talked about the past, the present and the future in subparagraph 13(b)(iii) of our proposal, we left out the past in subparagraph 13(b)(iv); we talk only about the present and the future. We understand that legislative drafting is complex and difficult, but we probably should have talked about the past as well in subparagraph 13(b)(iv) of our proposal.

¿ (0940)

Mrs. Monique Guay: [Editor's note: inaudible]

Mr. Marc-André Blanchard: Exactly. We need to do this if the spirit of subparagraph (iii) is to be respected. The interpretation principles could state that the legislator did not talk about the past in subparagraph (iv) but did so in subparagraph (iii). So that could cause a problem. In order to cover all aspects, we also need to talk about the past in subparagraph 13(b)(iv) of our proposal.

With respect to the commissioner, in the context we see for this type of legislation, we believe strongly that he should report to the House of Commons, and not to a particular minister or department. I believe that the very nature of the commissioner's duties, the importance of his role, his independence and his impartiality would clearly be better served if he was appointed by the House of Commons and reported to the House of Commons, with all the guarantees associated with that.

Mr. Daniel Henry: I would just like to add something. We talked about serious offences because the bill uses that language right now, but we are wondering whether the word “serious” is necessary. Why not say “any offence”?

We did not talk about clause 14 of the bill, which excludes any protection for people who are permanently bound to secrecy. The whole regime of the Security of Information Act is problematic for us. We feel that it is too restrictive. In that context, it might be too difficult to rewrite the legislation, but we find it problematic.

Mrs. Monique Guay: So you have problems with clause 14.

Mr. Daniel Henry: Yes. In our opinion...

[English]

The Chair: I want to jump in here. We're going to have to be a little crisper. The member's time is totally exhausted, and I think she still had another question or two. We have many people who want to ask questions, and I think if we can be a little crisper we'll get a lot more information to help the bill.

I'm going to let the member maybe ask one brief question to complete.

[Translation]

Mrs. Monique Guay: I would like you to explain to the committee how Bill C-25 conflicts with the Broadcasting Act. We are not all legislators around this table, and it is not clear to us. Explain that to us very concretely so that we can understand why you want the CBC to be exempt from this legislation.

[English]

Mr. Daniel Henry: It's impossible to read clause 9 in a way that is consistent with the independence of CBC. If CBC employees are public servants, subject to disciplinary action, how can they disclose wrongdoing?

The purpose of the regime is to control government employees for the purpose of having a neutral public service. That's the purpose of the duty of loyalty. The purpose of CBC is to enlighten Canadians about what is happening in society, including reporting on the very government and the government employees who are trying to maintain that duty of loyalty and keep some information from the public that would conflict with their duty of loyalty. That's the basic problem, which is what you asked for.

¿ (0945)

The Chair: Monsieur Lanctôt.

[Translation]

Mr. Robert Lanctôt (Châteauguay, Lib.): I understand the duty of loyalty very well, but the Supreme Court has handed down a ruling, and you are trying to make this like the Supreme Court ruling. I do not believe that the bill, as it is drafted, is in direct contradiction with the Supreme Court ruling, even though the provisions in paragraph 9(b) and 9(c) are included.

A public servant could make a frivolous disclosure. A journalist who does his work properly checks not only the source but also the information. I think that journalists have a professional duty to do that. If people are worried that the information could not be used without asking the permission of the commissioner or someone in-house, I would say that all journalists have a duty to do this anyway. At least that is how I understand the Broadcasting Act and the professional duty that journalists have. If they do not do this, they run the risk that the source, that is the whistle-blower, may be making this disclosure just to hurt someone. If paragraph 9(b) and (c) were removed, we would run the risk of people making disclosures to get back at someone in their organization.

Imagine that the chairman is my boss and I do not like him.

[English]

The Chair: This is hypothetical, I hope.

[Translation]

Mr. Robert Lanctôt: I could make false statements, knowing very well that there is some trace of truth, but not much. He has not committed fraud or done anything that really goes against the public interest. I make these disclosures in order to hurt him. If paragraph 9(b) and (c) were not in there and I made a disclosure, I would be less afraid. I could go to a journalist and take him aside. I can also work the other way. These paragraphs have been put in the bill to prevent people from trying to take revenge. But if the information is true, paragraph 9(b) and (c) to do not create any problem for the whistle-blower because he will be protected by the legislation, just like a journalist who does his work properly. Do you understand me?

Mr. Marc-André Blanchard: Yes, I understand your concerns. I would like to raise two points in response to your comments.

First, we need to understand that, in a context of labour relations, both in government and outside it, anyone acting in bad faith is a priori subject to disciplinary sanctions or even firing. That being the case, I would say that paragraph 9(b) is probably redundant, since that provision already exists in labour relations regimes in both the public and private sectors.

Second, we need to understand—in the context of our presence here today—that if someone acts in bad faith and makes a purely vexatious disclosure, etc., the disclosure is not necessarily made public. Our members, or our members' representatives, will not necessarily disclosure this information to the public. Just because a public servant comes to see us and says that he or she has a great scoop does not mean that the story will be in the newspaper or on television the next morning. The media still have an obligation to obtain information and check it out.

So, when an information source, whether the person is a public servant or not, comes to see us, we have a duty to check out the information with independent sources, except in extraordinary and exceptional circumstances. The journalistic rule is that one does not rely on a single source, especially not on issues that seem to us... If you will allow me the expression, we have to do a sort of smell text. If it smells like a settling of accounts, journalists have a duty to be much more careful in what they do with the information.

I would say that—and this is the second part of my answer—in this context, it is not necessarily because a public servant wants to take revenge on his boss, to use the example that you have given, that the story will be on the front page of the newspapers the next day. In that context...

¿ (0950)

Mr. Robert Lanctôt: It is the same thing, only the other way around. That is what I am trying to tell you. If we do not take out this part of the bill, your answer confirms what I am saying to a certain extent: it is proof by adverse reasoning. Whether we take down this paragraph or not, the legislation can exist. If it is redundant, then too much protection will not be a problem. This is not contradictory or in opposition. It is there if people misuse their right.

Mr. Marc-André Blanchard: With all due respect, I do not believe that it is bad faith. For example, I may be somebody who acts in very bad faith and wants to hurt you, but the information that I want to make public is of great public interest. The information is really of public interest, but my bad faith is certainly clear. Do you understand? The important thing for us is to be able to report information that is of public interest. The more the information is of public interest, regardless of the motivation of the person providing us the information, the more fundamental it is for our democracy that the information be made public. That is why...

Mr. Robert Lanctôt: What would prevent someone from doing that?

[English]

The Chair: All right.

[Translation]

Mr. Robert Lanctôt: This is not an internal matter.

[English]

The Chair: You're in full flight, I can see.

[Translation]

Mr. Marc-André Blanchard: The pubic servant would risk sanctions, since he would be...

[English]

The Chair: Mr. Blanchard.

[Translation]

Mr. Marc-André Blanchard: I apologize.

[English]

Mrs. Anne Kothawala: Can I add one really quick point to that?

The Chair: I'm going to let everybody know how we're going to proceed here. We have only seven minutes left in this session. There are still five people who want to ask you questions. We're going to have to say we're going to extend the session for you to make sure that the other questions are put on the table. But while I understand it's easy to get into full flight and go into a full oration, I think in the public interest we're going to have to tighten this up. So please, short questions, short answers.

I think Ms. Kothawala would like to make a quick intervention on that point.

Mrs. Anne Kothawala: I think the key is that it revolves around who defines “frivolous” and “vexatious”. That's the issue. I would put that on the record, because it's the difficulty. If you keep that clause in, then who's defining it? The government's defining it, the commissioner's defining it. And there will be lots of information that wouldn't get out, because frankly it would be in the best interest of the person trying to hide the information from getting out to say that's just frivolous, that's just vexatious. That's the real issue.

The Chair: Mr. Lanctôt.

[Translation]

Mr. Robert Lanctôt: I will let my colleagues ask questions, although I could still ask quite a few others.

[English]

The Chair: We're going to assume this is the second round. We'll take about five minutes for the questions and the answers cumulatively.

Mr. Benoit.

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

Good morning.

On this issue of CBC, I understand what you're saying. I do see the concern with it applying as this bill is now; it is a difficult issue to deal with. But suggesting parallel whistle-blower rules for CBC may not be the only solution. Wouldn't it be possible to have this act apply, once it's fixed up, amended substantially, to the CBC, but have one exception, and this is that the reporting would be to someone within the CBC? Would that solve the problem?

Mr. Marc-André Blanchard: Instead of the commissioner, as I understand from your comment.

Mr. Leon Benoit: Yes. Isn't the fact that the reporting is made to someone in government really the problem?

Mr. Marc-André Blanchard: That is the problem.

Mr. Daniel Henry: That's part of the problem.

Mr. Leon Benoit: What's the rest of the problem?

Mr. Daniel Henry: Under clause 9 there is a controlling mechanism. It depends on what controlling mechanism is adopted. Are we saying that wrongdoing should never be released except through channels? If that applies to journalists, obviously that's a problem. It can't. So there would have to be some mechanism to ensure that the information CBC has gotten through its journalism is allowed to come out.

Mr. Leon Benoit: But you're proposing some amendments to clause 9, are you not?

¿ (0955)

Mr. Marc-André Blanchard: Yes, to delete paragraphs 9(b) and (c).

Mr. Daniel Henry: Who is the duty of loyalty to if it's under this bill? There's a fundamental problem. If you look at the whole structure of this bill, you'll see that it's designed to deal with government employees and a neutral public service. The problem is fitting it in.

Mr. Leon Benoit: When it comes to a public broadcaster such as the CBC, there are independence problems. It's always a concern. There is the CRTC, which regulates, and there is the budget, which can be used by government to punish the CBC. The Reform Party had taken the position that it would make the CBC a private institution in order to solve some of these problems. I believe we've been punished by the CBC. So there is a real problem with independence, and that always will be a problem. Maybe having it become a private broadcaster is the best and easiest solution. But for now, that's not the situation, so we do have to figure out a way whereby whistle-blowing can be done effectively inside. I don't think you've convinced me that it can't be done through this legislation by having the reporting made to someone within the CBC.

Mr. Marc-André Blanchard: That would be feasible. That's one legislative scheme that could be envisioned, because then it would stay independent of government. I don't think it's something we would not agree with.

Mr. Daniel Henry: It depends on what is in the bill as a whole and what the restrictions are on the employees of the CBC. Obviously, independent journalism is its raison d'être. There shouldn't be a regime that tells its employees what they may and may not disclose about government wrongdoing.

The Chair: This will be your last question.

Mr. Leon Benoit: On page 8 of your presentation, under the Canadian Broadcasting Corporation, you say, “While we understand that mismanagement and waste in every department of government and every Crown corporation should be dealt with...”. But really it's corruption that is being targeted. It's mismanagement and waste to some extent, but corruption is probably a bigger issue.

The Chair: Monsieur Gaudet.

[Translation]

Mr. Roger Gaudet (Berthier—Montcalm, BQ): Thank you, Mr. Chairman.

I am going to start from the beginning. The Canadian Association of Advocates in Defence of Expression in the Media, is that you?

Mr. Marc-André Blanchard: Yes.

Mr. Roger Gaudet: What do you do for a living? You are here this morning, but what do you do besides that?

Mr. Marc-André Blanchard: We have about 125 members in Canada who represent their media organizations, that is, television broadcasters, radio broadcasters and the written press, or lawyers in private practice who represent the information media.

Mr. Roger Gaudet: If I understand correctly, regarding this whistle-blowing legislation, you would like your association to be a kind of commissioner for the CBC.

Mr. Marc-André Blanchard: No, not really. We would like to see an identical system to the one in the bill, but a system that would be completely independent of government. Then, given that the commissioner reports to Parliament, there is still a public organization outside the CBC that can have some control over information content within the CBC. That is where we have a problem. In our opinion, the CBC should be totally independent from interference in this regard.

Mr. Roger Gaudet: I have a problem with that. Whistle-blowing happens in every context, whether we are talking about journalism or politics. You talked earlier about the little brown envelop in connection with the inn in... I never saw anyone go up to a microphone and say that he or she was disclosing something. It is always done using a little envelop. Whether we like it or not, there has to be whistle-blowing legislation and people need to be protected, and well protected. I do not see why the CBC should be exempt. Things happen at the CBC like they do anywhere. I remember journalists who were sidelined for saying certain things. I remember the case of Normand Lester. At one point, there was a kind of little problem in the problem, and what did we learn? You sent him to the Maritimes.

Mr. Marc-André Blanchard: What we are saying to the committee is that there are other legislative means that can be used just as effectively to ensure that the CBC establishes an identical mechanism to the one in Bill C-25. Employees at the CBC, both journalists and non-journalists, would be protected by such a mechanism.

It is our view that making the CBC subject to Bill C-25 causes fundamental problems, including the one involving the Broadcasting Act and the definition of “public servant”. In our opinion, the legislator already has a way of achieving exactly the same objectives of Bill C-25 without constraining the CBC. The legislator's concerns would be met fully because there would be a mechanism, but it would be independent of the government mechanism. That is the problem.

À (1000)

Mr. Roger Gaudet: Then you could end up with 6, 7, 8 or 10 independent mechanisms. Crown corporations are all like yours.

Mr. Marc-André Blanchard: I would respectfully submit that the CBC is the only corporation with a bit of a special mandate, which is to inform the public, among other things, about government action. That is not the role of Canada Post, for example, and the other organizations that are listed in the schedule to the bill.

Mr. Roger Gaudet: I agree with you, but those organizations all provide service to the public. You provide a media service and the others provide other kinds of services. I believe that there is a certain similarity among all Crown corporations. They were created to provide services. Whether we are talking about postal services or communication services, they are still services to the public. If the organizations cannot provide them properly and no one can wrap their knuckles for it, as Mr. Benoit was saying earlier, then their budgets will be cut.

Mr. Marc-André Blanchard: I think that we need to make a distinction between the CBC's primary mission, its role, and the way it carries out its duties. We are talking here about subjecting certain journalistic information to some kind of control, and that just does not fit with the role of the CBC and of its journalists, which is to provide the public with information of public interest.

Mr. Roger Gaudet: But it does not prevent journalists from doing their work and providing information. That is not what we are saying. If there is corruption at the CBC and no one is talking about it, if you keep this to yourselves, how can Parliament find out about it?

Mr. Marc-André Blanchard: The test is first and foremost the public interest. We are not saying that the CBC should not be able to talk about its in-house problems in any way. We are saying that the oversight mechanism needs to be independent of government. There should be a mechanism, of course, but the mechanism should not ultimately be under government control. For example, a journalist wanting to disclose something being done by his employer at the CBC, has the right to do that, and will even have the right, as we are proposing, to speak to parliamentarians, the police or other people.

Mr. Roger Gaudet: I would rather you made amendments to improve Bill C-25 instead of trying to create a parallel mechanism. Those are my comments.

[English]

The Chair: Thank you.

I think Mr. Lanctôt had a related matter. He gave up a little bit of his five minutes, so I'm going to let him jump in with one question. Then we'll go to Mr. Shepherd.

[Translation]

Mr. Robert Lanctôt: Thank you, Mr. Chairman.

There are two things here, I think. You want to create a parallel mechanism because you do not want CBC employees to be included in the definition of “public servant” because that is in contradiction to their independence, etc. I think that we have understood that clearly. If we are just talking about the public sector, we solved that part of the problem, since these employees are part of the public sector. They do not want to be defined as public servants, but that can be changed or amended without any problem. The problem is that the journalist who has the envelop will not be the whistle-blower; he will be providing the public with information received from whistle-blowers. That is not the same thing.

Why do you have to be included in the legislation, especially if it is amended to state clearly that you are in the public sector? It is within the corporation that there may be whistle- blowers who give us information on what is happening internally. We are not talking about information that you get from a department or another Crown corporation, that you make public because you have checked it out. You are saying that you will not be sued for defamation because you make that information public. You are not whistle- blowers; you are reporting facts that a whistle-blower has provided to you. Given that we have paragraphs 9(a), 9(b) and 9(c), whistle-blowers will have to be careful about vexatious disclosures or disclosures made to get revenge. It is the whistle-blower that has to be careful and not the journalist. Do you understand? I make a very clear distinction between the two.

À (1005)

Mr. Marc-André Blanchard: With all due respect, I would like to make a brief comment. Clause 9 depends on the definition of “public servant,” which is in clause 2 of the bill...

Mr. Robert Lanctôt: If clause 2 is amended, if the definition of "public servant" is amended and we talk about the "public sector" instead...

Mr. Marc-André Blanchard: It says "Every person employed in the public sector..."

Mr. Robert Lanctôt: Yes, but I am suggesting that we drop that.

Mr. Marc-André Blanchard: The definition of “public servant” given in clause 2 is “Every person employed in the public sector, including chief executives”.

Mr. Robert Lanctôt: Yes, but I am suggesting that the definition of “public servant” be changed, or that it be dropped and that only the public sector be included. In the public sector, there are Crown corporations, organizations and public servants that come under the Public Service Staff Relations Act. If we drop the definition of “public servant” and talk only about the public sector, we resolve the problem.

Mr. Marc-André Blanchard: That is probably true, given the definition in the Broadcasting Act, which excludes...

Mr. Robert Lanctôt: That is true, it will match the Broadcasting Act.

Mr. Marc-André Blanchard: We certainly agree with that.

Mr. Robert Lanctôt: I do too. That is why I want...

Mr. Marc-André Blanchard: However, we feel that the legislation needs to be changed.

Mr. Robert Lanctôt: We need to amend only that part.

Mr. Marc-André Blanchard: There are concerns about paragraph 9(b) and 9(c).

Mr. Robert Lanctôt: I did not get any response to what I said to you.

Mr. Marc-André Blanchard: Our concerns are of another order.

[English]

The Chair: I hate to break this up, gentlemen; it's fascinating. But we're going to go to Mr. Shepherd now.

Mr. Alex Shepherd (Durham, Lib.): Just as an odd comment, as we went through all of this, it seems to me that if you just defined “wrongdoing” as “wrongdoing within the CBC”, you would solve a lot of your problems. In other words, our problem is that due to journalistic integrity we would see aspects of wrongdoing in other departments of government. That's the problem. So why don't you define “wrongdoing” as an amendment only to “wrongdoing within the CBC”? Anyway, that isn't really the thrust of my question.

You made some comments about journalistic integrity and professionalism in journalism and checking stories and so forth, and it gets me back to this paragraph 9(b). As politicians, most of us are aware of unsubstantiated stories in the press as being quite common, so I'm less enthusiastic about that caveat. I'm more concerned that we spend very little time in this legislation talking about the rights of people who are accused of wrongdoing under this legislation.

I think the whole idea of paragraph 9(b), at least, was to up the ante there, that there were consequences of frivolous.... I understand your comment of who defines, but presumably the commissioner defines what is vexatious.

We seem to be promoting.... In fact, I even heard you say that it was acceptable to steal documents if your intentions were good. I don't know where you'd draw the line. You can even commit theft if your intentions are good. Who defines good intentions? I don't know. We seem to be promoting licence, which thwarts the whole concept of a duty of loyalty, but there is no consequence.

I guess what I'm really getting back to is there are no consequences for vexatious reporting--taking out your boss or something because you're just ticked off with him. Presumably we can get that in the press and we can get all kinds of clout out of that. I suppose you're going to tell me that libel laws or something will protect him, but people have to bring these things forward with some kind of conscience. It seems to me you're taking all of the weight off people who whistle-blow and putting significant liability on those people who are accused, without any kind of ability for them to have recourse.

Mr. Daniel Henry: If I may respond, I think you have to ask, as we did, what the purpose is for this legislation. It is to encourage whistle-blowing and to protect whistle-blowers. The problem with paragraph 9(b), for example, is that it does not encourage whistle-blowing; it seriously discourages whistle-blowing.

If you look at the Hayden and Chopra case, for example, that was fought in the courts, they were fighting the whole department. They were fighting all the way up to the Prime Minister, who would do nothing to help them. They finally went to CBC and CTV to get the story out. Finally, it was held that the duty of loyalty allowed them to do what they were doing, but they did it at tremendous risk and at tremendous cost, after nine years of frustration within the system.

Even if you remove the paragraph 9(b) provision, you would have a strong disincentive for whistle-blowers to go forward. If you've read anything about whistle-blowers generally, as I'm sure you have, and the pain and ostracism they suffer within their organizations, it takes tremendous courage to bring this forward. If the taps are open, you should not assume that every frivolous and vexatious thing will be covered.

In fact, as media, we should be blessed with more information from the civil service, so we can pick and choose only the serious things to cover. Keeping the provision there is so arbitrary, and so serious a potential problem to a whistle-blower, that it does not encourage whistle-blowing, it discourages whistle-blowing.

As far as the other comment you made, on where to stop and start in terms of breaking laws and stealing documents, we propose that public interest should be the determining factor. If there is a breach of law, it depends on what law it is and what the circumstances are. The more important and the more serious the law is, the higher the public interest test should be, but there should always be this safety valve. Frankly, it's the way the system works now, but without protection.

Whistle-blowers come to us with brown envelopes—you all know about it—but we have very little protection to offer them. I thought the object of this exercise was to offer protection to people when their consciences dictate they must proceed.

À (1010)

The Chair: Thank you, Alex.

I'm sorry, I have to move to Ms. Yelich.

Mrs. Lynne Yelich (Blackstrap, CPC): I have a quick question. Should the budget for the public sector integrity officer be set by Parliament? Who should set the budget for this office?

Mrs. Anne Kothawala: I think it would be set by Parliament. We'd have to look very seriously at parallels. For example, there have been a lot of complaints that the office of the access to information commissioner is underfunded.

I think, with this law, you would have to make sure the commissioner was independent, well funded, and could carry out his or her duties in an effective manner.

Mrs. Lynne Yelich: Thank you.

The Chair: Ms. Neville.

Ms. Anita Neville (Winnipeg South Centre, Lib.): Thank you. I apologize for arriving late.

Several of my questions have been answered.

I have some sympathy with the argument you're making. You've talked about a parallel structure within the CBC. Could you give us some advice on what you think the components of a parallel structure within the CBC should be?

Mr. Daniel Henry: The object would have to be defined. There is going to be time between now and whenever this legislation comes back. It seems apparent this legislation is going to come back. I think time will probably allow CBC to offer its own mechanism and satisfy Parliament as to whether or not the mechanism will work. But for us to sit here and draft it in a three-minute answer I think would be difficult.

Ms. Anita Neville: I'm not suggesting you sit here and draft it, but you're quite clearly making an argument to us, and you've quite clearly thought about this issue. As I do have some sympathy for what you're saying, I'd like to know what you think the major components would be.

Mr. Marc-André Blanchard: When we talk about a parallel system, obviously the fact is there could be an in-house equivalent of the commissioner at the CBC. The mechanism would be somewhat the same as the one we find in this legislation. As I said earlier, you could impose a similar scheme on the CBC and tell them, look, if you don't adopt something that is similar to what we find in Bill C-25, we're going to impose Bill C-25 on you.

I think the mechanism is already there in the act. What the CBC has to do is to comply with a scheme that is similar to the one we find in Bill C-25, which is independent. The suggestion of one of your colleagues was that we delete the definition in clause 2, which is another way of looking at the solution--or of looking at the problem, depending on which end of the lens you're looking through. Obviously there are many ways to define something that could be satisfactory.

Our foremost concern, again--and I'm ending my comments on this--is that it's very important that we preserve the CBC's independence as an institution from the government.

À (1015)

The Chair: Ms. Yelich has one quick question and then the chair has a couple of questions.

Mrs. Lynne Yelich: You've talked a lot about loyalty. What do you think: if there is wrongdoing, should it be in our legislation that it's mandatory for them to report, that it be “shall” instead of “may”?

Mr. Daniel Henry: We struggled with that. Certainly some jurisdictions do have it mandatory; then it becomes important to determine exactly when it's mandatory. The thrust of the position we have taken is that there generally should be an ability for public servants to speak.

Mrs. Lynne Yelich: Is there any timeframe like the 30 days in the bill? Should it be longer or extended, or should there be a timeframe?

Mr. Daniel Henry: Well, again, that often depends on the circumstances. If there's a serious and imminent danger to life, health, and safety, it should be one hour, not 30 days. You have to look at the list of things you want people to have to disclose, failing which they would face penalties. That is a narrow circumstance. I don't think you would say civil servants should tell everything all the time; you're going to have to define that narrowly.

Our point is that if you want to choose that, it's certainly open to Parliament, but there should be this broader willingness to let government information out to the public and the media, to people who can actually absorb, understand, and deal with the information.

Mrs. Lynne Yelich: Thank you.

The Chair: I'm interested that you mentioned the one-hour scenario, which leads me to ask you again about clause 13, which is a permissive article within the bill to allow employees to basically circumvent the established routine because of imminence. Your recommendation is to delete clause 13?

Mr. Daniel Henry: No.

Mr. Marc-André Blanchard: No, it's just to redraft it.

Mr. Daniel Henry: The provision has been redrafted to include what is there now but to add elements to it.

The Chair: With regard to the whole discussion about the CBC being public servants, I would refer you to the transcripts of our meeting with them, where you'll see substantial discussion. I think we resolved that, and I would simply refer you to that.

The question I want to pose to you has to do with the premise Ms. Kothawala laid out, I think, which was that the press is really the only true, guaranteed means of getting these things out. Whistle-blowers are a sort of.... I started to think of whistle-blowers as being those people who are traditionally referred to as “Deep Throat”.

If there is wrongdoing--let's assume there is wrongdoing in that there's misuse of public assets, and we're talking about material--do you believe it is in the public interest to permit a person covered by this act to go to a public broadcaster before they have made any attempt to go to the commissioner?

À (1020)

Mr. Daniel Henry: It is in our brief that--

The Chair: No, answer the question. Is it in the public interest to go to a broadcaster before going to the commissioner?

Mr. Daniel Henry: Yes.

The Chair: Okay, what--

Mr. Daniel Henry: May I answer why?

The Chair: No. Let me see if we can chip away at this. We have to chunk this one.

If a person is aware that their boss is going to steal a lot of money right away and they go to you, they go to the broadcaster, what is the broadcaster going to do with that that the commissioner would not do, and on what timeline would this happen? I guess the question is, who would get to the bottom of it and deal with it most effectively, the broadcaster or the commissioner?

Mr. Daniel Henry: The first question is who does the whistle-blower who is the repository of that information think is going to deal with it most effectively. Over time, the public service integrity commissioner may establish a reputation for dealing with things effectively and efficiently, and the whistle-blowers in future may go to that person.

Our argument is--

The Chair: Let's go back--

Mr. Daniel Henry: --that the whistle-blower may choose to go to a media organization that would, when it has that information, do a number of things that would end up with the remedy you are talking about. One of the things is that by doing a story, the police would get hold of the information and start an investigation, which is the same thing that would happen if the public service integrity commissioner gets wind of the same information--they would also go to the police. So the police are going to get the information quickly, regardless.

The Chair: But I think you've answered the question by your story, because, you see, the public broadcaster has to produce and get that information out to the public and then the police pick it up, as opposed to the commissioner going to the police. Your only argument is that the credibility of a commissioner or the whole system is in question.

Mr. Daniel Henry: Not at all.

The Chair: Your presumption is not innocence, it's guilt.

Mr. Daniel Henry: No, not at all. The presumption is that the media will not only.... I said “go to the police” to be a simple answer, but obviously when the information gets to the public generally, what you find is that people who are knowledgeable about the circumstances come forward and the situation is explored more fully and more quickly than if it is dealt with in secret, where channels are dealt with very quietly. So there can be--there isn't always--a quicker response, but it is a choice that I think the whistle-blower should have.

The other thing, by the way, is that it's not just the media we are talking about--

The Chair: No, no. You know, if you carry on, you're going to tell the whole story. I want people to be on the edge of their seats. And they're going to have to follow this procedure even further, because we're out of time.

I want to thank you all. Also, to all of you, if you feel there is further information or insight or clarification of anything that has been said or questions asked, I invite you to make further submissions. That way, we can take advantage, because obviously you've done some work on this thing.

There are many questions. The CBC is the recipient of close to $1 billion worth of public moneys, and obviously it's hard to argue that the public interest does not have some attachment to at least the administrative side. You make the argument on the journalistic arguments, so obviously more discussions are going to have to be had on this. We're not going to answer all those questions today, but we all thank you very much for your constructive input.

We're going to suspend to bring in the next panel.

Mr. Marc-André Blanchard: Thank you for your time and consideration. Merci.

Mr. Daniel Henry: Thank you very much.

The Chair: Thank you.

À (1023)

À (1029)

The Chair: Resuming considering of Bill C-25, we are pleased to have another panel: from the Syndicat des communications de Radio-Canada, Mr. Daniel Raunet, president; from the Fédération nationale des communications, Chantal Larouche, president, and Éric Lévesque, counsel; from Canadian Media Guild, Lise Lareau, national president; and from the Canadian Association of Mounted Police, Gaétan Delisle, president of Association des membres de la police montée du Québec, and André Girard, secretary treasurer of Association des membres de la police montée du Québec inc.

Welcome. We have obviously had an extension of the time we spent with the first panel on matters much related to yours, and I'm sure we are just going to pick up where we left off. However, you saw that it is very easy to get into full flight and start giving speeches rather than answers to questions. The bill and the public interest will be better served if we can have our discussion in terms of concise information on the table. It will be helpful to this bill. So I invite you to make your opening statements, please, as briefly as possible.

Let's begin with Mr. Raunet.

À (1030)

Mr. Daniel Raunet (President, Syndicat des communications de Radio-Canada): Thank you, Mr. Szabo.

I have timed it, and it will take about seven minutes to say what I have to say--

The Chair: Make it five minutes.

Mr. Daniel Raunet: --not abusing the time allowed.

[Translation]

Thank you for having sought out the opinion of my organization with respect to this bill. I am the President of the Syndicat des communications de Radio-Canada, which represents 1,700 employees of the Société Radio-Canada, or French CBC in Quebec and in the City of Moncton, New Brunswick.

Contrary to the position taken by our employer, we ask that you do not exempt all employees of SCRC from the scope of Bill C-25, but only employees who hold journalistic or editorial positions. Why not exempt all of SCRC? Essentially, it is a matter of common sense. The goals of the bill as stated in the preamble target all federal institutions. Citizens want to have the assurance that public funds—and SCRC operates essentially on public funds—be spent with integrity. There's no reason to prevent employees who have knowledge of any wrongdoing to report this under the provisions set out in Bill C-25.

SCRC's senior management wraps itself in the cloak of journalistic integrity in its request for an exemption. But what do the acts under clause 8 of your bill have to do with journalistic integrity? The legislator targets the contravention of any act, misuse of public funds or a public asset, gross mismanagement, specific danger to life, health or safety of persons, a serious breach of a code of conduct, and the taking of a reprisal against employees. All of that has absolutely nothing to do with journalism or editorial independence.

SCRC promises to set up internal processes which are equivalent to those found in your bill. All of these issues amount to an act of faith, in this case that the Crown corporation can be both judge and jury, in an impartial manner. That is impossible. I will give you an example, of something which occurred this past month.

May 4th last, all francophone unions of the corporation, my union, the SCRC, the STARF, the technicians union, the SCFP, the office workers, the directors association as well as the APS, a management group, wrote to the CBC ombudsman, Mr. Renaud Gilbert, to oppose the appointment of a person named to the position of Director of French television for the region of Quebec City, who has links to a political party. Ms. Louise Cordeau was, less than a year ago, chief of staff in the office of Mr. Jean-Pierre Charbonneau, Speaker of the Quebec National Assembly and Minister responsible for Intergovernmental Affairs in the Landry government. This appointment is a breach of the journalistic standards and practices of the CBC, which requires a two-year cooling off period in such cases.

In his reply sent on May 7, ombudsman Gilbert ruled that he did not deal with employees or unions, but only with the public. Bill C-25 would have given us an effective redress mechanism to disclose such major violations to the code of professional ethics on the part of the Rabinovitch administration.

[English]

The Chair: Excuse me. I think I have encouraged you to put seven minutes into five, which is not going to be very helpful to the interpreter, who is going 90 miles an hour trying to keep up.

Mr. Daniel Raunet: I apologize to the interpreters and to you.

The Chair: Let's get a better balance so the smoke stops coming out of the back room.

À (1035)

[Translation]

Mr. Daniel Raunet: As a second example, I would point out that a few months ago, CBC managers approached my union to bring to our attention certain aspects of real estate transactions carried out by the Corporation in Quebec City.

On November 27, 2002, Radio-Canada, the CBC French services, sold its Sainte-Foy station, on Laurier Boulevard, for $2.425 million. The transaction was carried out without a broker and was signed directly by the CEO of Hydro Quebec, Mr. André Cayer, and Mr. Michel Saint-Cyr, President of the Real Estate Division of Radio-Canada. Mr. Saint-Cyr was appointed directly by Mr. Rabinovitch and is only accountable to the CEO of the Crown corporation.

Hydro Quebec resold the property for $0.5 million more, seven months later. On June 18, 2003, the SSQ, the Société d'assurance-vie, bought the former French CBC station for $2.925 million. For 16 months, French CBC remained a tenant of its former location and finally moved in February 2004, to 888, rue Saint-Jean, downtown.

Rightly or wrongly, the managers who approached us were worried about the financial conditions of not only the sale of the station, but also of the move from the Sainte-Foy location. We never obtained access to internal documents which would have allowed us to judge for ourselves. We are convinced that, in the framework of Bill C-25, it would have been more appropriate for these people to voice their concerns to the commissioner and for there to be an independent process to assess their statements.

Another example—which was mentioned in the previous presentation—is also known as the Scully affair. Allow us to remind you that one of our journalists, Mr. Normand Lester, was the first to expose how public hidden funds were being used to fund certain shows being broadcast on Radio-Canada, which were produced by Mr. Robert Guy Scully's agency, called L'Information essentielle. This name does not refer to anything different than what is currently being called the sponsorship scandal. You have certainly heard about it.

On September 20, 2000, we asked the Ombudsman, Mr. David Bazay, for the CBC's English services to investigate compliance with the corporation's policy as well as links between the Bronfman Foundation, the President of the Corporation, Mr. Rabinovitch, the Canada Information Office and the series Heritage Minutes and Le Canada du millénaire, produced by Mr. Scully's agency. The ombudsman clarified some aspects of the controversy but he was unable to do anything on one key point, and I quote:

... as you know, the ombudsman reports directly to the president of CBC and, through the president, to the Corporation's Board of Directors. I therefore do not think that it is appropriate to ask the Ombudsman to investigate the person or people to whom he reports.

We believe that had there been a mechanism such as Bill C-25 in place, more people would have spoken up and discussions would have taken place in an independent manner, under an internal process within Radio-Canada.

The Scully affair demonstrates the need to exempt journalistic activities from the scope of the bill. Indeed, in reading your bill, one can conclude that any journalist aware of any wrongdoing taking place within Radio-Canada would be compelled to resort to the mechanism set out under provisions 10 to 12 to disclose these acts, without having to report them publicly. It is certainly not the intention of honourable members to prevent such investigations such as the one carried out by Normand Lester.

It would be appropriate to specify that, in your definition, the term “public servant” excludes anyone whose principal activity is editorial or journalistic.. Radio-Canada continues to blur management activities and journalistic activities. We feel that journalistic activities should be clearly targeted and that everything Radio-Canada does should not be included. Therefore Radio-Canada's editorial independence would remain intact as well as the right of journalists to investigate their own employer.

I would add that it would be useful to amend clause 13 of the bill to prevent a misinterpretation of the legislation which would open the door to repressing those who decide not to resolve an issue internally, but who proceed externally and exercise their freedom of speech—without a net of any sort—and by being careful of the consequences. Certain legal precedents show that public employees may proceed in this manner.

To conclude, may we remind you that contrary to what Mr. Rabinovitch stated, Radio-Canada is anything but an independent organization. Its CEO and its Board of Directors owe their positions solely to the good will of the Prime Minister of the day, and their activities are racked by serious problems in the following areas, and I quote: “transparency, accountability and arm's-length relationship with the government.”

À (1040)

I'm not the one saying so. It was your colleagues in the House of Commons Standing Committee on Canadian Heritage, in their June 2003 report entitled “Our Cultural Sovereignty—The Second Century of Canadian Broadcasting”.

In this report, the members expressed the opinion that, and I quote:

... the Committee believes that it is both appropriate and necessary that criteria and guidelines be developed for nominations to the CRTC and the CBC. For example, in the interests of fuller accountability and arm's-length from government, nominations to the CBC Board should be made by a number of sources, and the CBC President should be hired by and be responsible to the Board.

This is a recommendation that we endorse without reservation.

In closing, we would remind you that the Canadian Broadcasting Corporation is not subject to the Access to Information Act. It is an opaque bureaucracy whose leaders, once appointed, are really accountable only to themselves. We feel that Bill C-25, combined with an urgent reform of the public broadcaster's operations, would strengthen the crown corporation by making it more accountable to its true owners, that is the Canadian people, through you, our Parliament, and in compliance with its laws.

Thank you for your attention.

[English]

The Chair: Thank you.

That was nine minutes and twenty seconds, close enough to seven minutes. We'll take the extra out of the little time I have. See, it's easy to go longer.

Chantal Larouche, s’il vous plaît.

[Translation]

Mrs. Chantal Larouche (President, Fédération nationale des communications): Indeed, Mr. Chairman, we will take up very little of your time since the Fédération nationale des communications supports all the points in the position taken by the Syndicat des communications de Radio-Canada. Therefore, this is a common position.

[English]

The Chair: Thank you. That's very kind.

I'm sure members will tell you--and I think we all agree--the best part of the meeting is the question and comment.

[Translation]

Mrs. Chantal Larouche: Yes.

[English]

The Chair: Lise Lareau, please.

Ms. Lise Lareau (National President, Canadian Media Guild): I won't be as short as that, I have to say.

By way of introduction, in some ways we are the mirror image of Monsieur Raunet's union. We represent the journalists outside Quebec and Moncton, New Brunswick. The Canadian Media Guild is the biggest union at the CBC. We represent nearly 6,000 people, not just at the CBC. We represent everyone who works at the CBC, from on-air people, radio, television, wire services, new media, the background people, the directors, the producers, to the administrative staff, the finance staff, the IT professionals, the technicians--everybody, really, outside of senior management and management.

The role we play in representing journalists is often different from the role we take in representing the rest of the employees. I'll walk you through this as we go. I do have a suggested amendment, as we go, that might help you deal with the deliberations of an hour ago.

As you are aware, the president of the Canadian Broadcasting Corporation is seeking to have Bill C-25 amended to remove the CBC from it. The Canadian Media Guild fundamentally disagrees with that position of Mr. Rabinovitch, as do my colleagues from the SCRC.

We've long argued that the CBC needs a more open and accountable management culture. It's currently excluded from the Access to Information Act. As a public broadcaster, it should set a standard for openness and the appearance of openness. In short, the CBC needs to be subject to whistle-blowing legislation, partly for its own good. CBC employees should not be denied the right to speak out about wrongdoing within the corporation.

As you know from his letter, Mr. Robert Rabinovitch, the president of the CBC, seems to understand the need for more accountability, but as you discussed here earlier, he wants to do it internally, outside the confines of the proposed act. You heard earlier today that there are suggestions that the CBC be encouraged to develop its own internal whistle-blowing regime of some kind or another.

We're concerned that if this type of special treatment or exclusion were to be granted to the CBC, the corporation would end up with an inferior process to the one debated and instituted by Parliament and through your committee and so on acting under the public scrutiny that has forced this government to bring the bill forward in the first place.

The CBC is a unique crown corporation. You've heard lots about that, and we can talk about it more in the question and answer period. It is a creation of the Broadcasting Act. Its job as the national public broadcaster is to provide a wide range of programming that informs and entertains in the public interest, not in the commercial interest, which separates it from CTV and the rest--I know you asked that question earlier.

However, in order to be an effective journalistic organization it must be both independent and be seen to be independent from the government. This is where we have the specific challenge we've been wrestling with this morning.

The CBC's own brief outlines all the ways the corporation's independence is guaranteed by the Broadcasting Act; it's all true, and we're happy to have that independence. We believe there are ways to maintain this independence within the confines of Bill C-25.

This brings us to the issue of CBC journalists and their independence under Bill C-25. I'll try to simplify some of what you've heard today. In my view, this issue divides into two main categories-- whether CBC journalists would actually be inhibited from doing their work under this legislation, and this perception of their being defined as public servants.

Let's talk about the work first, the issue of functioning as a journalist. It's been suggested that Bill C-25 as written would compromise CBC journalists in their freedom to make disclosures about other government institutions, and that under this law they'd be obliged to comply and cooperate with the public service integrity commissioner when disclosures are made to them. You heard Danny Henry on that a bit earlier.

It's not clear that this bill could be used against CBC journalists this way. I'm not sure this was ever its intent. So we propose the following amendment--or something similar to it. It is in the document. Our amendment would basically hive off the journalistic section of the CBC from this act. We hope it would go some way toward a solution for you. We propose an amendment in Bill C-25 that would read, “Nothing in this act can be construed as constraining the journalistic, creative, and programming functions of the CBC/Radio-Canada”--or something along those lines.

À (1045)

This separates out the journalistic operations and allows the CBC as an institution, not a news deliverer, to be subject to Bill C-25 and its laudable principles. It must be remembered that the journalistic component of the CBC does not reflect the entire corporation. In fact, it represents less than half of it.

The CBC, as you heard from Mr. Rabinovitch on Tuesday, is mostly concerned with this definition of CBC employees as public servants under the bill and the effect this may have on their independence as defined by the Broadcasting Act. We believe our amendment—the one I just read to you—and other potential amendments along those lines, as long as they amplify journalistic independence, can easily satisfy that concern.

At the same time, it cannot go unsaid in this room or anywhere else on Parliament Hill that the CBC is a public broadcaster, and as such it could be argued that its employees, apart from its journalists, are public servants in the broad terminology of the word, as opposed to civil servants or government employees. These employees work for a corporation that is the recipient of more than $1 billion in parliamentary appropriations, which you are well aware of, and whose president and chair of the board are PMO appointments. The broad mandate of the CBC is to create programming in the public interest. Once the journalistic functions are separated out by our proposed amendments or other similar amendments, there should be no further concentration on this issue.

I'll close on the bigger issue: the need for effective whistle-blowing legislation in Canada. Taken as a whole, Bill C-25 is a good start. It needs amendments to be the piece of legislation that it was undoubtedly intended to be to protect whistle-blowers, as Daniel Henry and the Ad IDEM people said to you earlier today.

For example, the guild—and this is internal CBC employees now—is concerned that an employee who believes that wrongdoing is happening or about to happen within the corporation or elsewhere would be obliged to raise his or her concerns internally—to their own supervisor, for example—before going to any federal officer or to an outside media outlet. We believe employees would be discouraged from doing this, particularly in a heavily bureaucratized environment.

As a committee you've heard from others who have proposed amendments to make this bill more user-friendly for the whistle-blower, yet respecting the duty of loyalty to the employer. We encourage you to take a close look at the proposed amendments offered by Ad IDEM, the group here before us, and others to clause 9 and clause 13. As a media union, we represent members whose professional abilities would be strengthened by tough whistle-blowing legislation. As citizens we know that democracies around the world are dealing with this very issue in rooms just like this and that Bill C-25 was designed to advance the cause of openness, accountability, and free expression. These are all fundamentals in our democracy. We urge your committee to recommend changes to this bill that respect these core values.

Thank you, and I look forward to the question and answer period.

À (1050)

The Chair: Thank you kindly.

We are now going to move to the Canadian Association of Mounted Police, Gaétan Delisle and André Girard.

Would you like to make an opening comment? It may not be on the CBC, I gather. But we're here collectively to discuss Bill C-25 and the public interest and protection and all of the other elements, and you have a common bond of association with all of us, so we look forward to your comments and participation in the questions and comments.

[Translation]

Staff Sergeant Gaétan Delisle (President of the Association des membres de la police montée du Québec Inc.; Canadian Association of Mounted Police): Thank you very much, Mr. Chairman. I wish to thank the committee for having agreed to see us so quickly. In fact, it happened yesterday. Moreover, we were advised that we were a bit late. So I'll thank you once again for allowing us to testify at the same time as other people who are demanding more or less the same things we are, and not what the employer is demanding, namely to have access to everything and control everything within.

[English]

I represent roughly 2,100 members, a voluntary association that has been lately formed as the Mounted Police Professional Association of Canada. I have 35 years of service as staff sergeant. Along with me is Staff Sergeant André Girard, who's in his 29th year.

In our functions in the RCMP we are what we call a local union, an inside union, with shop stewards. The RCMP introduced in 1974 a divisional staff relations representative whereby members elect their own members and those members represent the members at large. I have been in such a position for 27 years and have been accordingly re-elected every second year. My partner, André Girard, was also. We are here, though, on our own time, on annual leave, simply because the RCMP does not recognize any association outside of their own system.

I might also add that because we are within the internal system there are a lot of our members who feel that the whistle-blowing covered by this Bill C-25, which specifically excludes us, should include us specifically for one purpose. We say that because recently our own commissioner went public and said that he misused our pension fund. Now, that's our own money. So if anybody wants to know what's happening, can you imagine the same thing in your own pension, not being accessed to it by the person who governs it? Rest assured that there are a lot more than those 2,100 members out of those 15,000 who are a bit upset by not being included in Bill C-25.

Our presentation is short. We are specifically excluded. We should be included. We have that special system that supposedly guides whistle-blowers within our own organization. We have an ethics commissioner.

We have submitted to you correspondence through the clerk in which we cite a very recent case that was adjudicated, whereby Corporal Read here in Ottawa went for immigration and was fired because of his activities. Why was he fired? I ask this because under the RCMP Act any process we have, be it grievance, be it informal discipline, be it formal discipline, be it administrative discharge...even the commission of inquiry for public complaints only recommends to the commissioner. The commissioner has the final say into everything that happens. That person was fired, even though there was a committee that recommended he should not be because he was acting in good governance regarding the law.

Oddly enough--and that's the reason why we did submit the decision to you--it was overturned at the Federal Court. Why I'm bringing you this case is because there's also another one, the Stenhouse case. It is exactly the same thing. It's about organization with organized crime that the RCMP didn't want to hear about. Nevertheless, we gave it to you as an example.

We also gave you the decision of the Supreme Court of Canada that states that the system we have as whistle-blowers--which is the internal system--is not independent. As a matter of fact, we were seeking the right to have access to a union. We've also put in documents before the Senate committee studying Bill S-12, which is a bill to rejuvenate and to better the staff relations system in the RCMP and to give the right to collective bargaining so that members will not be under serious reprimand. That's what we're talking about.

If we blow the whistle inside the RCMP, as the examples we have given you show, we are fired. Or simply put, members can be recommended for transfer. That's only an informal issue, “recommended for transfer“.

Take into account two members who live together, one in B.C...or in Alberta. You have to separate the family because of what? Because what you thought you believed was right. That's the reason we have to be included, because we feel, although there might be some subsection.... I'm not going to go into it. You will have the leisure to go section by section.

À (1055)

According to Bill C-25, you have to start within your own system. After that, if there is nothing you like there, you may ask the commissioner, under this new system, to interfere. Right now everything is under one guidance, the commissioner, and we feel that if we go outside, at least somebody else will be able to look at it. Then the intent and the spirit of Bill C-25 will be followed.

[Translation]

In my opinion, that's a very important point. It's undeniable that the Gingras decision by the Federal Court of Appeal in 1992 mentions that members of the RCMP are public servants, for all intents and purposes.

To our mind, it's very important to state that the definition of “public sector” in clause 2, which excludes us, also excludes the Canadian Security Information Service. However, you will recall that in 1984, the RCMP split up activities. We no longer look after the Canadian Security Intelligence Service; we take care of operations that are included in our mandate under the RCMP Act, namely investigations at the provincial and municipal levels as well as federal investigations. We no longer deal with anything that concerns the Canadian Security Intelligence Service Act, except, I will admit, investigations into terrorism. So why are we being lumped in with the Canadian Armed Forces and CSIS, whereas the laws in this country now state that we are public servants for all intents and purposes?

One can take a closer look at the cases that have been cited. I know that you will be reading about them in our document, which is very brief. Nevertheless, I would like to draw your attention to this point in particular.

We have also provided the committee with a copy of a video cassette.

[English]

It's a video cassette of CTV's Fifth Estate. Oddly enough, Bill C-25 was introduced on March 22, and this came out on March 27. They talk about the Read case. I would urge the committee, when you are dealing with this section that excludes us, to take cognizance of the fact that what happened to Corporal Read is a day-to-day activity in the RCMP. I don't know how Corporal Read got $150,000 to go to Federal Court, because we don't have a system internally like a union; members have to go on their own to do it. So you can imagine. The only cases we know are the few that can get money somewhere in order to struggle and go to Federal Court. Because in the RCMP Act, again, every process we have can only be reviewed under section 18 of the Federal Court Act, which is every decision of the commissioner. I am blessed, again, to be beside people who do not look at the internal system to deal specifically with this.

I thank you again. We're open to questions.

Á (1100)

The Chair: You certainly are.

We have about an hour, and we will make the best use of that time we can. Please do your very best to keep the questions concise, and answers as well.

Mr. Forseth.

Mr. Paul Forseth: Thank you.

It came up earlier that the regime of the bill would perhaps exclude the court process. You talk about redress for Mr. Read. First of all, can you tell us what's happened to him, what his current situation is? Then, I wonder if any of you has a comment about what leave, in spite of the act, there still is to go into the court system to seek redress, to seek remedies perhaps against the employer or against a colleague who was malicious. Issues of harassment and wrongdoing are not necessarily between employer and employee, but are sometimes between colleague and colleague.

I've posed a few questions there, and perhaps some of you could comment. But start with the situation today for Mr. Read.

S/Sgt Gaétan Delisle: Since he is in the Ottawa region—and there again, we will be able to provide you with more information if need be—our understanding is that the member is still suspended pending the review of filing of section 18, although it was not mandatory by the commissioner to keep him on strength following his decision. That's our understanding.

Again, we will check it out to see what's happening with it. But normally in cases that involve section 18, we have seen many occasions when the members were officially fired, then they go through the court system, go through everything. At the same time, we know of many cases right now on sexual harassment that are before the court. There again, I come strongly to the fact that our members have to struggle with their own money out of their own pocket in order to act on that, because we don't have legislation that will give that.

The Chair: Mr. Benoit is going to carry on with the questioning.

Mr. Leon Benoit: Yes, I met with Corporal Read on two occasions. I was immigration critic for our party at the time, and he came to me, quite frankly, in many ways a desperate and broken man. He had performed, in my evaluation, a great public service, and his reward for that was to have his career destroyed and in many ways to have his life destroyed.

If having the RCMP come under a modified version of this act will help others who would come forth in situations like that, then I think we'll see.... Well, I'd like your thoughts on how many cases, how often this might be used to effectively protect the public interest—not numbers, but just a general idea.

S/Sgt Gaétan Delisle: I hope not numbers.

Mr. Leon Benoit: No, no.

S/Sgt Gaétan Delisle: There are 15,000 of us, plus 3,000 civilian employees.

I think I can rest assured in saying the process that I believe is in Bill C-25 is after the internal process has been started. That's where, right now, management hang their hat, saying they're going to control everything that there is right now. So all I'm saying to you is that by only opening that aspect, it will render them responsible on behalf of the commissioner of the new thing.

Hey, we went through access to information. Out of 100 senior officers, they had bonus pay of $1,200,000. If we don't have that, how can we address some of that? It's internally. It's due process or not.

Á (1105)

Mr. Leon Benoit: There seems to be a lot of parallel between what the other witnesses here have said the situation within the CBC and Radio-Canada is, and the situation within the RCMP--namely, a lack of accountability right now, which could be partially dealt with by an effective version of Bill C-25. Do you agree with that?

S/Sgt Gaétan Delisle: Well, I'll speak for myself. If there's a will of this committee, then it will happen. If there's no will—

Mr. Leon Benoit: I have to leave, unfortunately. But are you going to provide in the future some specific recommendations for amendment to this bill so that it will work within the RCMP should the committee and the government decide to make that change?

S/Sgt Gaétan Delisle: Again, it was a short notice. We're more than pleased to give what.... You have to realize we are on very limited....

[Translation]

Being here before you is like a vacation for us. It's too bad, but if you tell me that I can have everything... I have no problem with that... I'm joking.

[English]

We will supply you with something, not as elaborate as these people can do, but we will provide you with something.

Mr. Leon Benoit: Well, having your input maybe at another time on some suggestions the committee might make I think would be valuable. We can work together. I understand you don't have the resources to provide the actual amendments.

Thank you. I do have to run right now.

Ms. Lise Lareau: May I comment on one of the questions you asked about the current process in a unionized environment, and how this might differ? There's an important distinction.

Currently, the union can deal with retribution issues in a very limited way. We can deal with harassment and discipline in our grievance and arbitration process, and it's a long and winding road. This bill is unique and worth preserving for as many people as possible, because it's about the front end of that equation. It's about getting the information out, rather than dealing with the retribution afterwards, which we have some expertise in doing. I like to think that a bill like this will prevent a lot of that work down the road.

The Chair: Good point.

Madam Guay, please.

[Translation]

Mrs. Monique Guay: Thank you, Mr. Chairman. I'd like to welcome you all.

This is quite pathetic. Prior to this, we heard people who were completely against this, who were trying by every possible means to find a way to amend clause 2 and even create a whole other category to include them, if possible. I absolutely do not believe that the CBC—this is my opinion, but I think it's also the opinion of many of my colleagues around this table—would adopt measures as important as those contained in the bill that we have before us. Personally, I want the CBC to be subject to the new legislation.

However, we have to find ways to protect journalists. We understand your concerns and we can amend the bill. As a matter of fact, since I know you have a lawyer with you, I would ask that you send us amendments that we could consider during clause-by-clause consideration of the bill.

I'm very surprised to hear that RCMP officers are not yet unionized. SQ officers and municipal police officers are unionized. That does not prevent them from providing essential services and acting responsibly. I know that you're working very hard on this. Yes, you are specifically excluded from the bill, and clause 2 specifies that. We have to look into this. We would need you to help us with that and we will need the help of our lawyers to figure out how we could have you protected by this legislation.

The purpose of this bill is to protect as many people as possible to encourage them to inform us of certain inappropriate measures. You are paid with public funds. The RCMP operates with public funds, as does the CBC. This is taxpayers' money. You should be afforded protection. If you were to witness improper activities within your team, you should be able to blow the whistle.

You talked about an ethics counsellor within the RCMP, but you seem to be saying that this is not effective. Could you elaborate?

Á (1110)

S/Sgt Gaétan Delisle: Our opinion is that this measure is not effective, but the people who are in the position do have integrity. The problem is that they only make recommendations. The commissioner renders sublime decisions...

Mrs. Monique Guay: Isn't he independent?

S/Sgt Gaétan Delisle: Try to make him independent! I don't know what his exact rank is. Is he a chief superintendent, an assistant commissioner? In any event, how independent can you be when you report to the commissioner? There are ranks and there's a regimental structure. It's quite an aberration. As a matter of fact, that is what is referred to in Bill S-12, tabled by Senator Nolin. You will see the comments: they deal with that. Something has to be done to make sure that these relations are appropriate in this new millennium.

Mrs. Monique Guay: What reasons were given to justify the fact that you're excluded from the bill?

S/Sgt Gaétan Delisle: None have been given.

Mrs. Monique Guay: Is it a matter of security or...

S/Sgt Gaétan Delisle: When I read this for the first time, I said to myself, surely they went to the commissioner. It's as if they'd gone to the representatives of Société Radio-Canada, whom I heard earlier, and asked them what they wanted written into the act. I'm convinced that they would have wanted their name to appear in the list of exclusions. I'm taking it for granted that that's what happened.

Mrs. Monique Guay: According to the bill before us, you can go to a higher-ranking officer, who would be your ethics counsellor, or if you don't feel that he is in a position to examine the case, you can go directly to the commissioner. I imagine that for you, that would be a much more equitable situation.

S/Sgt Gaétan Delisle: In the area of labour relations—I don't think I'm wrong here, and there are experts here around the table who could undoubtedly confirm it—you have to try to solve the problem as quickly as possible, and that is in here.

Mrs. Monique Guay: This allows you to do that.

S/Sgt Gaétan Delisle: Afterward, if nothing happens, you have to be able to figure out where to go next. That's what this gives us, but in a separate system.

In the RCMP, there's the legislation and there's the procedure to file a report; there's even a code of conduct under which we do not have the right to speak publicly about the administration of the RCMP. There's even an article on that subject within the code. There are exceptions that are specifically included, on the subject of human rights, among other things. The same is true for matters of official languages. As a matter of fact, it took 14 years to have that recognized.

But there are other things that come under RCMP administration. The closure of stations or detachments in Quebec is one example. Technically, we have no right to get involved in that. We do it through the association, which is a bit embarrassing for management, because it's a third party doing it, but we do it on our own time.

Mrs. Monique Guay: Thank you very much. We will try to find ways to do something if we see that this doesn't contravene certain other acts. We'll have to see.

I now have a question for the SCRC. It's very simple. Do you sincerely believe that if the CBC were excluded from this bill, it would adopt measures such as the ones we are preparing to provide for all crown corporations and departments?

Mr. Daniel Raunet: The answer is clearly no, because as we speak, the CBC does not comply with its own regulations in certain cases and there's no other internal mechanism to challenge what it does. I think that Parliament must make a very clear distinction between the activities that involve the journalistic independence of the CBC and its day-to-day management activities. When the CBC buys and sells real estate and manages public funds, that has absolutely nothing to do with journalism.

Earlier, you asked if we had any specific suggestions for amendments. I didn't express it as such, but in clause 2, we have the definition of “public servant”, which reads as follows: “Public servant means every person employed in the public sector, including chief executives”. One could add something like “excluding any person whose main activities are of an editorial or journalistic nature”. That would take into account this objection.

Our colleagues from the guild made another proposal, which I discovered with you a few moments ago and which seems just as appropriate. I'm sure that you have sufficient number of lawyers among you to find the best wording. But please, do not exempt the CBC from scrutiny of its activities. Contrary to what its representatives are saying, it is not an independent crown corporation, given that the Minister of Finance and Parliament give it money each year, tightening or loosening the purse strings, so therefore controlling the money very directly. Moreover, in the final analysis, the CBC's management depends on appointments made by the Office of the Prime Minister of the day; once appointed, these people are accountable to no one.

There's something wrong about the way the CBC is managed, and as I was saying, a year ago, the Heritage Committee came to more or less the same conclusion on this issue. The CBC regularly hides behind journalistic independence and integrity and does not want anybody interfering in its affairs. This is abuse of the principle of journalistic independence, in my opinion.

Á (1115)

Mrs. Monique Guay: I'm going to ask you the same question I ask all witnesses about our commissioner. Do you think the commissioner should report solely to Parliament, like the Auditor General does? Is this a good idea? That's not what is stated in the bill. The bill provides for the commissioner to report to Parliament through a minister. Up until now, reaction has generally been favourable to total independence of the commissioner. I'd like to hear your views on this.

Mr. Daniel Raunet: It would be a good idea for the commissioner to report directly to Parliament as does the Privacy Commissioner, the Access to Information Commissioner, etc. In any event, with regard to the CBC, you are ours masters and it should not be a problem. In our humble opinion, our masters have neglected the CBC to some extent. You should take charge of things on behalf of the Canadian voter. From our standpoint, it would be a very good thing if the CBC were more directly accountable to Parliament.

Mrs. Monique Guay: Go ahead.

Mrs. Chantal Larouche: For my part, I'd like to add that we will be pleased to submit proposed amendments, as you requested. Of course, this will take into account the position relative to CBC. There will also be a proposal to preserve freedom of expression. Too often, fundamental rights such as freedom of the press, come up against other legislation and it's very rare that fundamental freedoms win before the courts.

We want to ensure that freedom of the press is protected but we also want to protect the worker or public servant who is exercising his or her freedom of expression in the face of sanctions. In any event, it's pointless to provide for sanctions in the act, because the employer always maintains the right to sanction an employee who commits a reprehensible act.

In short, we think that the bill in its current form has a few weaknesses with regard to freedom of speech. Therefore, we will submit amendments in this regard.

Mrs. Monique Guay: Ms. Lareau.

[English]

Ms. Lise Lareau: I'll go back to the question of an internal whistle-blower, and whether the CBC would be prepared and motivated to put in place its own whistle-blowing legislation or statute, and whether we think that would happen.

I obviously agree with my colleague that it's not in their immediate interest to do so. It's almost counter-intuitive for you as a senior manager, or for a board of directors, to actually write tough whistle-blowing legislation for your own corporation. It's almost a conflict, in a way. I don't expect that very many corporations would do that for themselves. It's a difficult thing to get your head around.

I don't see any reason, as I said in the brief, why the CBC and its employees should be subject to something that would be separate and distinct, and possibly less comprehensive than the bill before you now. I just don't see it. There's just not enough there.

In terms of Parliament, absolutely, report to Parliament, not to a minister.

Á (1120)

[Translation]

Mrs. Monique Guay: Mr. Delisle.

S/Sgt Gaétan Delisle: I think that in the past few months, especially in Parliament, it has been necessary for the auditor general to operate independently, especially with regard to research within the RCMP. It would have been unthinkable to proceed otherwise. Otherwise, it would have been impossible for her to play her role properly.

I also believe that the appointment should not be for only two or three years, otherwise things will become redundant. If I understood correctly, in the case of the auditor general, Parliament opted for a 10-year appointment.

Mrs. Monique Guay: It's seven years in the case of the commissioner.

S/Sgt Gaétan Delisle: I eluded to a 10-year period for a good reason. A lot of things can happen in that timeframe. It is appropriate in the case of an auditor general. I'm perfectly comfortable with this idea, especially since a large number of departments are targeted here and there will undoubtedly be a very large number of staff members involve. Are you going to conduct an internal audit only? No.

You have to face fact. If you want to do your homework given this huge bureaucracy that you're trying to target—and I hope that the RCMP will be included—this commissioner has to have a mandate similar to that of the auditor general, which will allow for some consistency to be introduced for some time. That's the recommendation we're making.

[English]

The Chair: I'll go to Mr. Lanctôt. We'll have another round.

[Translation]

Mr. Robert Lanctôt: Thank you.

Mr. Delisle, you will surely have time to draft amendments, even if the means aren't there. It would seem that the election will be called very soon and this bill will probably be reintroduced in the new legislature. Therefore, you will certainly have time to draft amendments which will be very useful for another committee. Will the committee have the same members? We have no idea.

S/Sgt Gaétan Delisle: Can I reply immediately, Mr. Chairman? We will also be involved in the election. We have a great deal of work to do during the elections. That was just an aside.

Á (1125)

Mr. Robert Lanctôt: That's good.

My questions deal with certain points that we've been trying to clarify for some time now and that you did clarify. I think we understand this very well around this table.

I'd like to get back to the issue of the independence of journalists, because among the others, there was agreement to change the definition of “public servant” in the case of the CBC. Personally, I don't think this is a problem. It's not a matter of adding something, but rather of removing something. You want us to add something with regard to journalists.

In Canada, the Charter of Rights and Freedoms gives primacy to freedom of expression and freedom of the press. So in my opinion, including something very specific on this subject in the bill will be redundant. The only place where there could be a problem, according to you, is within the CBC. The question your asking is this: if, as journalists, you know that something isn't right, would you be obligated to go before the commissioner rather than report it in the newspapers? In my opinion you would have a conflict of interest if we gave you what you want. If that's the case, I think that the better way, just for this part, which is very specific... I think you understand full well why I have a problem with this, because as far as the rest is concerned, I agree with you totally. Why wouldn't you behave like the others? Why do you want to be different? Why are you requesting that everyone except journalists be subject to this? You are asking us why you shouldn't do your job as journalists should you see something in your own backyard. Well, because you would be in a conflict of interest situation. Why wouldn't you use this mechanism? Journalists in other media will use it. They will check their facts properly and they will go before the commissioner. Therefore everyone, including journalists, would be on an equal footing. This would prevent other people from evoking another aspect of the charter to try to be excluded because journalists have been excluded in the name of freedom of the press or freedom of speech.

Personally, I don't want that to happen. That's why I'm pleased to hear the RCMP say that... I want to exclude as few people as possible. If what you are asking for were granted, that would open the door to things like this. The legislator has already stated that there are some people who have to be excluded. On the contrary, let's be as restrictive as possible about exclusions, and then we will have the most solid piece of legislation possible.

That's how I see things. Given the supremacy of the charter, you will certainly have the protection you want. If you put this in the act... In any event, that's what I'm suggesting, and I hope to be here in the next legislature to promote that view of things.

Mr. Daniel Raunet: The problem you've raised is very important in terms of journalistic ethics, conflict of interest and so forth. I want to point out that within the CBC right now, this is not clear. You are all quite familiar with the main issues in the Scully affair, which took place a few years ago. The point was to verify the use of funds which had been earmarked, I suppose, for national unity. But on TV, it was never mentioned in the credits that some of the funds came from the government and private foundations, among others. Normand Lester conducted an investigation that involved the CBC.

From a journalistic standpoint, the sole and main question that arises in a case like this is: is this in the public interest? A report might concern the CBC, TVA or any other network, but one has to wonder whether it's in the public interest. Under these circumstances, it was indeed in the public interest that Normand Lester reveal these stories, because they were related to quite an important part of Quebec and Canadian history: the referendum and post- referendum context, and so forth. I'm sure I don't have to elaborate.

I remember an interview broadcast on Le Point, on Radio-Canada. Normand Lester's boss, who was Jean Pelletier at the time, had intervened to say that rather than files these reports, Normand Lester should have passed on the information to other media so that they could use it, which is a somewhat bizarre position. For our part, we've always maintained that Radio-Canada journalists had the right to investigate Radio-Canada in so far is this was in the public interest.

In addition, earlier I was talking about the sale of the Sainte-Foy station. When the station was sold to Hydro-Québec, a journalist from the Quebec station discovered that the price was already $500,000 below market assessment for that neighbourhood. She filed a report and she had her knuckles rapped. She was told to stop talking about the story. Since then, Radio-Canada never talked about it again.

Therefore, there's a kind of internal censorship at Radio-Canada. We feel that this type of issue is in the public interest. We have the right to report on Radio-Canada, just as newspapers owned by Izzy Asper and sons have the right to discuss things that concern the Asper family conglomerate. That's part of basic freedom of expression in this country.

If this bill places a new obstacle before us, we feel that implies that there's a problem here. The bad intentions of those who want to gag people like Normand Lester could mean that this new obstacle consists in sending us back to an internal mechanism or to the commissioner to sweep the matter under the rug. Let's discuss it again in three years...

Mr. Robert Lanctôt: I quite understand what you are saying: you are talking about what has happened in the past. I am hoping that the commissioner will be independent and that the work of Lester and other people at the CBC will be protected by Bill C-25. On the other hand, it would not be possible to act independently in your own newspaper or your own media.

The difference is that, under Bill C-25, the commissioner will be able to deal with public interest issues when a whistleblower comes forward. You should be subject to the same requirements as any other organization. Other employees will report wrongdoings to the commissioner. They will not report internally because it would be completely illogical. Under Bill C-25, they will be able to report to the commissioner. You can then invoke the public interest, except, of course, if there is a conflict of interests.

Would you not also have to say that there would be a conflict of interest if the whistleblowing is related to your own activities? This is the case for lawyers, accountants, members of Parliament and ministers. I want to apply the mechanism provided under C-25 and I hope this means that the commissioner will be independent and will do a real job.

You can't have your cake and eat it too, but C-25 would allow you to do the same thing. Of course, this incident occurred at the CBC and you are unfortunately a part of that organization. This type of thing can occur somewhere else. The idea is that you should not deal with wrongdoing within your own organization and that, in such a case, you should use the mechanism provided by Bill C-25. I am only talking about your journalistic activities.

Á (1130)

Mr. Daniel Raunet: Do you mean that, after C-25 is passed, someone like Normand Lester, in similar circumstances, should not do a news report on the problem, but should go to the commissioner to tell his story and wait for Parliament to render a decision three or four years later?

Mr. Robert Lanctôt: Other journalists could act in such a case. If they believe that they can report the information without being sued for libel, they can take the matter in hand. The problem here is that your own organization is involved.

Mr. Daniel Raunet: I'm sorry, but we disagree on that point. But you are the ones who have to make the decision.

[English]

The Chair: Madame Larouche is dying to get in here.

[Translation]

Mrs. Chantal Larouche: Absolutely, because what you are suggesting is extremely dangerous. You are saying that, from now on, the public interest will take a back seat to an analysis by a commission on the grounds that the reporter would be in a conflict of interest and that he would be reporting on a situation within the crown corporation which employs him. This goes against current journalistic practices and even against the editorial policies of the CBC. In a way, you are redefining conflicts of interest, the public's right to information and freedom of the press. What you are suggesting is extremely dangerous. It would mean that, from now on, if a CBC reporter says something about the CBC, he would be muzzled until the end of the investigation. If it takes 15 years, so be it. I find this extremely dangerous and of great concern. We believe that the journalistic act should be excluded because a reporter who talks about the fraudulent or abusive use of funds by the crown corporation would necessarily be viewed as being in a conflict of interest. Of course, he is loyal to his employer, but he must first be loyal to the public. The first mission of the CBC and its reporters is to serve the public interest. I am very concerned by what you are suggesting.

Mr. Robert Lanctôt: I just want to point out that another whistleblower would have the same obligations. Why would it be any different?

[English]

The Chair: Madame Lareau has a comment to add. Monsieur Lévesque also wants to have a couple of words. It may help your next question.

Ms. Lise Lareau: I'm going to try to attack this in a different way.

Let's walk us through how we got here. You're right that the independence of journalists is well protected by law. You heard that earlier today--the Supreme Court ruling, and so on. That's broadly, in society, the independence of journalists.

The issue before us happens to be that there's a proposed bill that involves and incorporates all crown corporations. One of these crown corporations happens to employ some journalists. That wasn't really considered when the people wrote this bill.

The people who wrote this bill really thought that whistle-blowing within crown corporations needed to be protected. Meanwhile, off in this little corner, there are a couple of thousand journalists at one of the crown corporations. You're right that they have established broad legal protections for their rights. But here's the rub: they are seen as being public servants under this law. That phrase means something, because to be a servant to Her Majesty under the law we have means to not be independent.

This is perceptually and functionally damaging to journalists. All of a sudden your fidelity is to the crown and not to your profession--as being independent. That is the key rub, and that's why all these people have been before you who want to distinguish this public servant part of the legislation one way or another.

I have a proposal that I read to you earlier. It's in the brief. Everybody has a different way of approaching it, but that's the problem. It's a small rub in a big piece of pie, really. The idea that journalists could be defined as public servants under this law has repercussions for other laws and other--

Á (1135)

The Chair: I'm going to stop you there and refer you to the discussion we had with the CBC and its members. I think we came to the bottom line that whether they were public servants or not was a moot point.

Ms. Lise Lareau: It's in connection with the independence issue.

The Chair: We could just add the phrase, “for the purposes of this act”, and use one term to refer to everybody who is covered under the act. Let's not go to the subtleties of--

Ms. Lise Lareau: I've got it.

The Chair: Next is Monsieur Lévesque.

[Translation]

Mr. Éric Lévesque (Legal Counsel, Fédération nationale des communications): I will be brief, Mr. Chair. I would simply like to reply to one of Mr. Lanctôt's comments with respect to the redundance created by the Syndicat des communications proposal, which also happens to be endorsed by the guild.

The bill specifically deals with and refers to freedom of speech. It proposes to manage this freedom of speech. One must understand that by setting out a specific channel to disclose any possible wrongdoing, we are in fact creating a limit or constraint. Moreover, in this framework—and this is what I would like to point out to Mr. Lanctôt—outside the context of Bill C-25, there's an abundance of jurisprudence on freedom of speech and the duty of loyalty. Many times, the matter of an employee's freedom of speech and duty of loyalty towards his employer has arisen. So this means that under the Charter, part of the supreme law of the land, an employee may talk about his employer, talk about the company he's employed by, and talk about acts which have been committed, if these are illegal acts or wrongdoings committed by the employer in question. In this sense, it is not redundant to create an exception for the journalistic act, since an act of journalism can be somewhat channelled or undermined. We would to some extent be preventing the journalist from exercising his profession as he should—and must do—because he would only have one path to follow.

[English]

Mr. Paul Forseth: On page 3 of the bill, clause 4, under the title “Promoting Ethical Practices”, deals with the promotion of ethical practices and dissemination of information. We're concentrating on wrongdoing. What about some kind of additional manifesto to lift the operations into the promotion of “rightdoing”, instead of always concentrating on wrongdoing?

Previous witnesses have said that a whole regime of ethics and so on should appear either at the front of the bill or in the preamble, instead of leaving it to be written outside the bill. In clause 4 it says, “The Minister must promote ethical practices in the public sector”. What are they? Where are they written? Are they in a statute? Rather than just listing them on a website or in a policy document, maybe this is an opportunity to actually put into legislation what these ethical practices are and describe what a positive environment should be, not necessarily always for disclosing wrongdoing, but creating such a positive environment that there won't be wrongdoing in the first place.

That's a suggestion. Maybe some of you have a response to expanding clause 4.

Á (1140)

Ms. Lise Lareau: Obviously it's a motherhood issue, and it would make sense, but not with the exclusion of the wrongdoing clause. I think it's good to positively reinforce ethical behaviour, but you can't eliminate the wrongdoing clause by doing that.

Mr. Daniel Raunet: You're speaking about clause 4, not clause 3.

Mr. Paul Forseth: Page 3, clause 4.

Mr. Daniel Raunet: Oh, I see. In my copy it's on page 7.

It's a “mom and apple pie” clause. Of course the minister must promote ethical practices, etc. Nobody can be against that. I don't understand the problem.

Mr. Paul Forseth: The issue is that if we're going to define what wrongdoing is, we have to know what “rightdoing” is. Some are saying there are certain things on the Treasury Board website, there are things that are commonly accepted in our culture, and we do have the great bible of behaviour, and that is the Canadian Criminal Code. But when we have a bill that concentrates so much on wrongdoing, we also have to lay out in a statute what it means to be doing right, so we know what is wrong.

Mr. Daniel Raunet: In the case of the CBC there are various texts on the books, like norms and journalistic practices, a lot of things that are defined very closely. We mentioned earlier political conflict of interest. I had a colleague from Edmonton who was in the guild, Mrs. Narayana. A few years ago she decided to run for office as a suicide candidate, I suppose, in Saint-Hyacinthe, Quebec, for the NDP, and she had to get off the job for two years because of the rules. Now we have a director who was appointed in Quebec City within less than a year of being involved in the Parti Québécois. So those same norms don't seem to apply to the appointment of that person.

Maybe the minister could look at the practices of various crown corporations and make recommendations to strengthen the rules from time to time. I don't see any problem with that. But for us it's a matter of enforcement of the existing rules, and since under the guise of editorial independence our employer is judge of and party to anything that happens within the crown corporation, there's a sort of omertà, a law of silence that reigns at the CBC. We're very happy with the purpose of Bill C-25 because it's a way to open the windows a little bit.

Mr. Paul Forseth: Of course the other issue about being involved in political life was somewhat defined when we did the previous Bill C-25, the public service bill, which this committee dealt with. It was another bill but it was also Bill C-25. We tried to deal with that to open it up. Traditionally some public servants weren't even allowed to vote, whereas now there's a regime in the bill that does that, where you can obtain permission from the Public Service Commission. There's a regime and a protocol to follow for you to become politically active and still maintain your job in the public service.

It's interesting that if you're very determined not to be classified as being in the public service, you don't have protections and opportunities either. You have the problem of being outside the protection of that regime.

Á (1145)

Ms. Lise Lareau: May I make an important distinction? Everything we've said about the hiving off of functions--not people, but journalistic functions and the programming functions.... It's important to make that distinction in law. It isn't about taking rights away from people; it's about not having the functions being subject to this particular law. There's a big difference.

Mr. Paul Forseth: Right, and some of the argument I tried to make previously to the lawyer appearing on behalf of the CBC was that we were mainly concentrating on the internal administration of the CBC as a corporation, not what you see on the screen or hear over the airwaves as an end product. It had to do with what we know to have been the case historically, that the CBC was a very top-down, controlling, old-fashioned bureaucracy. In some of the historic fights in personnel and administration, such as for wrongful dismissal, there were a lot of lawsuits. Lots of things were covered up by government because of past wrongdoing going back ten, fifteen, or twenty years, things that just typically happened in old-fashioned, top-down bureaucracies where everything was secret.

Now here's an interesting bill that comes along that would perhaps start opening a window of rights and opportunities for lower-level employees. At least they would have an out.

Ms. Lise Lareau: We of course agree with you on that.

Mr. Paul Forseth: That's fine, but it doesn't sound like you've really thought too much about clause 4, and I see that perhaps is a weakness and needs to be beefed up. If we're going to concentrate on what is wrong, we need to know what is right and promote, as someone else said, rightdoing as much as concentrating on running after wrongdoing.

The Chair: Mr. Delisle.

S/Sgt Gaétan Delisle: If I may, I'll point out something with respect to what you were saying about political activities. You have before you a member who was suspended without pay for a year and a half. We had to go to court and everything, and then we re-established the right for members of the RCMP because it was wrongfully written in the regulations. I guess your question goes exactly in the same vein: what type of code will be produced by the minister?

One caveat you would be able to put in there is that you would at least have a public forum to look at it. Right now as it stands it's only 30 days after it goes before the two houses, but there's nothing that says it will be open to a public forum or scrutiny and everything. Maybe that could be an approach that could be taken. Therefore, if we still represent some of our members, if we feel it would dissect it directly, we could address it.

The Chair: Let's move on to Monsieur Gaudet.

[Translation]

Mr. Roger Gaudet: Thank you very much, Mr. Chair.

For my part, I believe that journalists must report the news. However, there's one thing I do not understand. Journalists and the RCMP have the right to investigate other media or other crown corporations, but they do not have the right to disclose information on their own crown corporation. The RCMP is not allowed to release information on its own organization, but it has the right to search the CBC or any other crown corporation. I have trouble understanding how you do not have the right to speak of the things that the CBC perhaps should not be doing. I'm certain that the RCMP sometimes does inappropriate things. As the saying goes, I am not St. Thomas and I will not place my finger in... I would like to hear your opinion on this.

Mr. Daniel Raunet: We believe that the Canadian Charter of Rights and Freedoms allows us to investigate our own corporation if we feel that it is in the public interest to report on such matters. You are right, Mr. Lanctôt: if Bill C-25 is passed in its current form, without any exemptions, we will go before the courts of this country to vigourously challenge any attempt to muzzle the Normand Lesters of the future. But why set up this extra hurdle which would force us to fight when we can avoid this difficulty immediately?

It's obvious that our employer, to use the CBC as an example, does not take a very consistent stance on the right of employees to talk about the CBC. There were reprisals in some cases. Normand Lester's career at the CBC fizzled out, and it was partly because of that. He was taken off the investigations relating to the Scully affair. He was told to not speak of that anymore. The producer of Le Point and of Le Téléjournal went before the public himself to explain why Normand Lester had been taken off this story, by saying that Normand Lester should have disclosed the story to The Gazette or elsewhere outside the corporation. The principle of freedom of speech, as we see it, is not necessarily shared by our employer in all circumstances, at all times.

There are major differences between the English-speaking network and the French-speaking network—Bloc Québécois members are certainly aware of this—with respect to editorial slants, particularly on television. On the French network, it is decided that such a story will lead rather than another story. This is much less common on the English network. There is the independence which the Rabinovitch administration refers to. Mr. Rabinovitch is talking out of both sides of his mouth to some extent, because this independence is not always respected impartially.

Á (1150)

Mrs. Chantal Larouche: In our opinion, the bill is very worthwhile and useful. We agree on that and that's our position. We are not at all against the bill. However we are telling you to be careful. We cannot set up a system where a journalist can criticize a company he doesn't work for, when he can't even find fault with his own company. By doing that, would he not be casting a judgment which could lead us to conclude that he is in a conflict of interest and that he is not doing his duty, because his duty is to disclose any wrongdoing, including any wrongdoings committed in his own company?

Mr. Robert Lanctôt: Are you talking about the whistleblower?

Mrs. Chantal Larouche: I'm not talking about a journalist who would simply be whistleblowing.

[English]

The Chair: I think Mr. Delisle had a comment, and then I'm going to have to take the floor back.

S/Sgt Gaétan Delisle: I take it we are still being excluded, and I just want to explain to you the system we face. Parts VI and VII of the Royal Canadian Mounted Police Act deal with

[Translation]

the Public Complaints Commission against the Royal Canadian Mounted Police as well as public complaints.

[English]

So we have a different system that addresses this, but in every system, as I said at the outset, they are all under the recommendation to the commissioner. The commissioner can obey or not, so to us it's a paramount principle that we be included under Bill C-25 so our people will not be subject to unfair labour practices.

You're talking about the charter. The charter based that on fair labour practice. We were told that in my decision from the Supreme Court, but it still goes on. Why? Because there is no system in place where our members can address it in an open place. This is being afforded.

The Chair: Our hour is gone. We could go on, as there are still many more questions.

Let the chair use the discretion to put in a couple of matters.

If we have a journalist who becomes aware that a superior, also a journalist, has committed or is about to commit a serious wrongdoing as defined, does journalistic independence cover that situation?

Mr. Daniel Raunet: First of all, would it be in the public interest or not to report it? It might be trivial for the rest of the public. If I knew my superior was putting money in his pocket from petty cash, let Bill C-25 apply by all means. I don't think the public wants to hear about that necessarily.

The Chair: I'm sorry, we're talking about serious wrongdoing as defined: the health or safety of employees is imminently in danger because of what this guy is going to do. Does the journalist use the protection of journalistic independence as meaning not having to report the imminent danger to health and safety of others?

Mr. Daniel Raunet: Would clause 13 allow us to keep on reporting? Is that what you're asking?

The Chair: No. The point is there are two kinds of whistle-blowing situations here, and I'm not sure whether the bill adequately addresses them. One is where the journalists themselves are the whistle-blowers. The second case is where they get information from another whistle-blower and it involves the question whether their journalistic independence is to report it. It depends on whether the journalist is the whistle-blower or is reporting on behalf of another whistle-blower. That's one point.

In most professional codes of conduct with regard to whistle-blowing, the individual who becomes aware of a matter that allegedly could be a wrongdoing is obligated to report it to someone designated within the profession. It's up to that designated person—let's say the commissioner—to determine whether or not there's any basis: whether it's frivolous, whether it's vexatious, whether it's a legitimate wrongdoing. The onus is not on the professional to make that judgment; it is on the person who is responsible to make the assessment. In other words, that model eliminates the penalty or the onus on the employee to be careful about not being frivolous, vexatious, or whatever. Obviously that's a different model.

It also, however, says under the rules of most of these codes—for accountants, lawyers, engineers—if you do not report and it is subsequently determined that you knew but did not report, you would become equally culpable after the fact. You would actually be guilty or a participant—the culpability is the same—because you did not do the right thing. This is a totally different model from the one I'm being presented.

The bill says an employee “may”, rather than “shall”, report. The question to you is, should employees be required when they become aware?

Second, should we determine that employees may not have the tools to determine what's frivolous, vexatious, etc.? Should that onus be on the employee, or should we shift it?

Finally, is the model we have here in the public interest? I guess that is the general question.

Maybe you have some comments, and then we're going to wrap this up. Does anybody wish to address this?

Á (1155)

Ms. Lise Lareau: I'll start, I guess.

You heard earlier that “frivolous” and “vexatious” need to be defined better in this bill. We came here primarily to address the wish of the CBC president to be excluded. That was the main thrust of what our expertise and our interest is. That's why I'm here, in a fundamental disagreement with him on that.

Speaking to your issue of “frivolous” or “vexatious”, I think either the terms need to be defined better in this law or there needs to be an arbiter assigned in this law to define it. That's point number one.

The other professions are very different from the journalistic profession. We cannot—

The Chair: I guess the question is in the ambit of the entire public sector as defined.

Should it be discretionary whether an employee would disclose?

Ms. Lise Lareau: Yes.

The Chair: Okay.

Now, we have heard arguments for exclusion or for inclusion from the RCMP perspective and from the broadcasting and journalistic side. One of the elements that came out of that I thought was uncommon.

There is, for instance, in the journalistic side, the administration, the non-journalists, and perhaps they should be covered. But the journalists should have that argument of journalistic independence.

I think the RCMP has a very similar one, or it effectively is similar. Although the argument didn't come out, there are matters the RCMP deal with that have to do with national security, etc., and there obviously must be some exclusions. So in both cases some part of it should be covered by the bill, and some part of it...perhaps there's argument.

Perhaps the question is, should we be reconsidering? And perhaps anyone who is, as defined, part of the public service, should be included, and then list the specific exclusions, not organization by organization, but rather the elements within the organization.... The schedules may in fact give the exclusionary principles--rather than by excluding the whole organization, some elements to the extent that it was public interest, national security, whatever.

Â (1200)

Ms. Lise Lareau: Yes, it makes sense.

S/Sgt Gaétan Delisle: Can I just--

The Chair: Last comment.

S/Sgt Gaétan Delisle: And it's not on behalf of the RCMP, it's on behalf of the members' association, please. The commissioner will speak for himself.

On what you just alluded to, to me the context of confidentiality will not be lost by this portion here. As a matter of fact, if there is something in national security that is so much a nature from a person who works in the RCMP right now who's under the code of conduct, section 46, then the next step would only be under the commission, and the commission still has that binding confidentiality--nothing is loose, nothing falls out of it. Therefore, the same process is being addressed, except that the commission will have the power regarding administrative matters and so on, because the commission will still be under the Official Secrets Act. That's my understanding of this. So therefore you don't lose that. To me, as a person, I don't see it as a wrong.

The Chair: Ladies and gentlemen, thank you very much. I think this has been a very important contribution to the dialogue that is going to have to be considered with regard to this bill.

The information is on the public record. Those who have a vested interest or who are stakeholders in this regard, whether they be the drafters or those who are going to be affected, have access and probably have been monitoring this very carefully. So your input is there.

Should there be an election, this bill dies on the order paper, but the transcripts and the record do not. They are there, available for all those who have an interest. There is no doubt in my mind that this bill will be coming back in the normal course, or after an election in a new session, and may in fact reflect changes in the reintroduction. So it's important that your testimony and your input is on the record now, to perhaps broaden and stretch the thinking a bit to take in those points.

We thank you very kindly for that input. We're very pleased with the enthusiasm and the dialogue, and we share your interest in making sure that Bill C-25 is a good bill that is in the public interest.

[Translation]

Mr. Daniel Raunet: Thank you very much.

[English]

The Chair: Thank you.

We are adjourned.