Good morning, ladies and gentlemen. I'd like to call the meeting to order.
This is the legislative committee on Bill C-2, meeting seven. The orders of the day, pursuant to the order of reference of Thursday, April 27, 2006, are Bill C-2, an act providing for conflict of interest rules, restrictions on election financing, and measures respecting administrative transparency, oversight, and accountability.
Our witnesses today are from the Office of the Registrar of Lobbyists: Mr. Nelson, who is the registrar, and Bruce Bergen. Good morning to you.
We have also the Canadian Society of Association Executives. With us are George Weber, who is the chairman of the board, and Michael Anderson, who is the president and chief executive officer.
Finally, we have, from the Government Relations Institute of Canada, Leo Duguay, president, and there is someone else, who may or may not be involved.
Thank you, Mr. Chair. I'll make some brief comments.
Members of the committee, Mr. Chair, I'm very pleased to be here today. As a point of departure for questions you may have for me regarding the lobbying provisions in Bill C-2, I thought it could be useful to you if I were to provide a brief synopsis of the operation of the current legislation, from my perspective.
First, I'll offer some statistics from the registry of lobbyists. Members will recall that the Lobbyists Registration Act defines three categories of lobbyists: consultant lobbyists, who are hired by individuals, businesses, and others to communicate with public office holders; in-house lobbyists for corporations, who are employees of entities that operate for profit; and in-house lobbyists for organizations, who are employees of organizations that operate on a non-profit basis. There are various provisions in the act that require registration in one of these categories, but the most important of these are that communication with public office holders takes place and that there is compensation involved.
As of May 15, 2006, there are 4,752 lobbyists registered. The breakdown of this number is as follows: 699 consultant lobbyists, with 2,330 registrations; 1,764 in-house lobbyists working for 274 corporations; and 2,289 in-house lobbyists working for 376 non-profit organizations. This breakdown shows that although it's often consultant lobbyists who have the highest profile in the media, there is actually a great deal of variety among those required to register under the act. I mention this because I have observed that the act has broad application.
For example, measures in the act that may have been intended to target the activities of former public office holders who lobby on behalf of large corporations can also apply to a staff member at a university who is discussing policy with Health Canada, or the CEO of a ten-person company who is applying for financial assistance from ACOA.
The registry itself is available through the Internet 24 hours a day, seven days a week. There is no charge to access it and staff have been working hard to improve the search capabilities. The registry is well known among lobbyists and it is the most used registry by public office holders.
That said, my assessment of awareness of the act, how it operates and who needs to register is that it is low. With public office holders in particular, I see a need to clarify the requirements of the act through education and awareness. I am convinced that this will go a long way towards increasing compliance with the legislation.
For example, even with the limited awareness and education efforts my office has been able to undertake over the past several months, combined with the higher profile of lobbying in the media, I know that there are more public office holders checking the registry before they agree to meet with lobbyists. More education will pay dividends in registrations. So will more enforcement.
As members are perhaps aware, there is virtually no evidence that there are consequences for ignoring the Lobbyists Registration Act or the Lobbyists' Code of Conduct, no convictions, no fines, no jail terms, no code of conduct reports tabled in Parliament.
While the current act provides significant powers to the registrar to conduct an investigation under the Lobbyists' Code of Conduct, there are virtually no powers currently provided that would enable the registrar to gather the evidence required to either launch a Code of Conduct investigation or to construct a solid base from which the RCMP can investigate possible breaches of the act.
I will stop here, Mr. Chair.
I look forward to contributing to your deliberations on this bill. I hope to see a legislative outcome that will help to ensure that confidence in Canadian federal institutions increases to enhance accountability and transparency in the lobbying of public office holders.
Thank you very much, Mr. Chairman and honoured members of the committee.
Good morning. Bonjour.
The Canadian Society of Association Executives, commonly called the CSAE, welcomes this opportunity to comment on Bill C-2, the Federal Accountability Act, and is pleased to participate in its review on our members' behalf.
As the chairman mentioned, my name is George Weber. I'm the current chair of the CSAE. In my day job, I'm the executive director of the Canadian Dental Association. With me this morning is Michael Anderson, the CSAE's president and chief executive officer.
The CSAE is the professional organization of 1,600 men and women who manage many of Canada's most progressive trade, professional, occupational, philanthropic, and common-interest organizations, which in turn consist of 14.5 million individual and two million corporate members. An additional 600 business members that provide services and products to the sector also comprise an integral part of the CSAE's membership.
The CSAE and its member organizations support government initiatives to strengthen the rules and institutions that ensure an increased transparency and accountability to Canadians. We share those goals, and with the exception of two concerns are pleased to support the overall legislation commonly short-titled the Federal Accountability Act.
Our first concern relates to the restriction on lobbying activity that enshrines a five-year prohibition on lobbying activities for ministers, their staff, and senior public servants. We believe that government officials should maintain the right to move freely from government service to the not-for-profit sector in view of the unique relationship that non-profit organizations currently enjoy with the federal government.
Senior staff and CSAE member organizations who lobby government are defined by the Lobbyists Registration Act as in-house organization lobbyists. They lobby government officials, and their primary focus is to seek common good for all their constituents.
It is our position that eliminating this five-year moratorium or replacing it with a more reasonable period would ensure the continuing maintenance of a unique exchange of information and consultation that currently benefits both the government and the sector. Failure to remove this time constraint will ultimately dissuade government officials from working for not-for-profit organizations that provide societal benefits to Canadians.
Our second concern is the obligation to report all contacts with designated government officials. The act requires that in-house organization lobbyists record all registerable activities--with certain exceptions, such as chance encounters that may take place with senior officer holders--including who was met and what was discussed, and lobbyists must file regular reports with the registrar. And it will be monthly, as noted in the proposed legislation.
The CSAE is concerned that new and more frequent reporting requirements may lead to situations where contact with government officials is severely curtailed or avoided altogether. The free flow of information--research, knowledge, and consultation--between the government and the sector will be curtailed, and as a result, the informed decision-making process that currently exists will be weakened.
Will recording contacts with senior public office holders truly advance the public policy process to address issues in the public interest?
As you know, many not-for-profit organizations currently register twice annually--and Mr. Nelson has just noted the numbers, which are larger than for corporate or consultant lobbyists--through the Lobbyists Registration Act registrar. They provide updates on the issues and subject matter discussed as well as the government department or institution contacted.
We are concerned that increasing this compliance requirement will prove to be an onerous, time-consuming burden that will result in a loss of productivity for the many not-for-profit organizations currently facing resource constraints. As an aside, we should be aware that one-third of our membership have one to four staff members, so we're just adding an additional burden to their already heavy workload.
We encourage the committee to maintain the current reporting status for in-house organization lobbyists.
Honoured committee members, on behalf of the members of the CSAE, I would like to thank you for the time you've allowed me to express some of our concerns. We would be pleased to respond to any questions or points of clarification you may have.
Thank you, Mr. Chairman.
Ladies and gentlemen, members of the committee, we are pleased to appear before you here this morning. I am the President of the Government Relations Institute of Canada and I am accompanied by our Vice-President, Lisa Stilborn.
Members, we represent the lobbyists you don't read a lot about. The members of our association are registered lobbyists, and you already know who we are, what public offices we've held, who our clients are, and what policies, rules, regulations, or legislation we're trying to effect. You already know quite a bit about our membership.
Our board has an interesting cross-section of pretty much all the people who lobby in Canada. We have people on our board who represent Bell Canada, the Canadian Medical Association, the Canadian Cancer Society, the Canadian Council of Professional Engineers, the Credit Union Central of Canada, and a bunch of others who, like me, are consultant lobbyists. We represent in some fashion almost all the people who are registered lobbyists.
To begin, I want to express our strong support for the principles underlying Bill C-2, namely transparency and accountability. Since its inception, our association has supported every attempt to make lobbying more transparent. We are supportive of almost all the elements of the changes that you're proposing to strengthen the Lobbyists Registration Act.
Before I get into specifics of the act, let me go back to the preamble of the Lobbyists Registration Act as it was initially formed. If you accept these principles, then you'll easily be guided to what can and should be done.
The preamble said:
||WHEREAS free and open access to government is an important matter of public interest; AND WHEREAS lobbying public office holders is a legitimate activity; AND WHEREAS it is desirable that public office holders and the public be able to know who is attempting to influence government; AND WHEREAS a system for the registration of paid lobbyists should not impede free and open access to government....
This preamble reinforces the government's ongoing position that the lobbying profession is legal, ethical, and in the public interest—and we couldn't agree more.
We also support the majority of the changes in the act, including stronger investigative and enforcement provisions. The vast majority of the people we represent are fully compliant with the law. It's been our position for some time that more resources should be dedicated to enforce this law so that the actions of a small number don't tarnish the reputation of the whole industry. As a matter of fact, I would point out that none of the people involved in the Gomery commission had in fact registered.
Clearly, I can only say to you that we represent the lobbyists who register. We all know that over time there have been some who don't register. But I don't think the concept of resolving the problem of those who don't register by adding more requirements to those who do register is going to be of much help to you.
We support the creation of an independent and empowered commissioner of lobbying who is accountable to Parliament.
In terms of the other changes to the act, we really only have two comments that we would like to make, and then I'd like to propose an amendment.
On the five-year rule, everyone in industry understands that a cooling-off period is necessary. Will a five-year period be much better than a four-year period, a three-year period, or a two-year period?
The question that you are required to answer, as we are, is this. Will this prevent good and experienced people from entering the public service? That's the first part. As George Weber pointed out, will this prevent good public servants from working for good corporations, good associations, or good lobby firms that service good corporations or good associations?
The second one is the matter of recording contacts with senior public office holders and the concept of who, what, where, and when. If you ask your colleagues, I think you will find that our concern is legitimate. The question we ask all the time is this: Will this put a chill on meetings that are in the public interest? Will civil servants who should meet with clients we represent, with associations, and with corporations say they don't want to meet with people because it may be misconceived?
The more telling problem is this: Will this compromise commercial confidentiality? In my career, and others can attest to this, we have had examples of confidential conversations with deputy ministers and with ministers.
I'll give you two examples. When a corporation is considering a sensitive merger or acquisition, there have in the past been discussions with senior officials about the possible implications of these mergers or acquisitions and other more technical matters, particularly affecting drug companies or new vaccines on the market. To these, competitors should not be privy.
Least of all is the matter of everyone wanting to know who's doing what in Ottawa. There's a lot of that, and not all of who wants to know and what they want to know is in fact in the public interest.
You may want to ask yourself these questions. Who is it wants to know with the greatest of detail what a company and a deputy minister talked about, when it's already on the public record which policies, regulations and rules, and legislation these companies are trying to affect? When is the public interest to know balanced with privacy and commercial sensitivities? The other one, which we can only dream of as being a horror, is what level of speculation will follow disclosure, and how will everyone respond to the inquiries? What great number of access-to-information requests are we going to get after the tabling that company X met with department B? How many of these kinds of requests are you going to face?
Clearly there are some people in this community who want to know everything. They want to know everything that everybody ever says, and if you made a presentation concerning this legislation, they will follow up these normal requests by asking what the deputy minister said, and what you said, and what the deputy minister said in response.
The other ongoing consideration for you is that we want to ask you to consider your role in this process, because a lot of you are integral to public policy. It's interesting. I was once a member of Parliament, so I know a little bit about the kinds of things you do. We are not in competition with you. As a lobbyist I don't compete with members of Parliament; I do a very different job. You are faced, on a constant basis, with hundreds of inquiries in your offices. I represent five to seven or ten clients in a given year. I have the time to spend two days with a company to discuss matters with them. As my colleague has pointed out, associations have similar amounts of time. You don't have that amount of time to devote to a particular file. Very often the first thing we do on any particular level of interest is to deal with the local members of Parliament on that issue.
We want to move forward and ask you to consider whether the burden of these regulations will be increased for all registered lobbyists, for not-for-profit lobbyists, and for organizations and corporations. We want to propose that a lot of things have not yet in fact been absolutely settled.
In relation to one section--the section dealing with filing a return 15 days after the end of the month to describe the who, what, where, and when of the meeting--it seems to me that better legislation considering privacy requirements and commercial sensitivities would be for Parliament to adopt a law that says these things shall be done--none of us is opposed to doing them--but instead of writing down all of the details of how it should be done in the legislation, you might want to say that the individuals shall file returns in such fashion and time as are set out in the regulations and leave it to the commissioner of lobbying to determine whether it should be three months or whether there should be some exemptions for commercial sensitivities. We're very fearful that if you write the rules in as much detail as you have proposed in this legislation, then common-sense things and sensible requests to keep a matter confidential for two weeks or three months may not be possible.
Thank you, witnesses.
This is an open question to each of you. I'm very concerned about the type of communication and reporting. To people out there, to our stakeholders, the word "lobbyist" hasn't got a clear meaning, and it probably has a pejorative one. Thank goodness I'm a lawyer and a politician, because I know how to deal with pejoratives daily.
I think people in the country are wise enough to know that talking to your MP, your mayor, or your city councillor on the steps after church, at a hockey game, or in the supermarket is a form of lobbying. It's just done by private citizens who vote.
What has been done in the past in the Lobbyist Registration Act is to keep this lobbying—politicking, if you like—when it's for remuneration, which none of us deny, in the open: make it transparent. That's what you, as professionals, are all about.
My concern is that by making these amendments to the Lobbyist Registration Act—in fact, just calling it the Lobbying Act, which is the amendment--we will significantly cut down on the legitimate type of communication that can take place.
In the Ottawa Citizen yesterday, Prime Minister Harper may have been a guest at the CFL before he was Prime Minister; Carol Skelton was at the Grey Cup as well, for Telus; and Jay Hill was there, or somewhere, for Bell Canada. Who is to say they weren't just talking about the hockey, baseball, or whatever?
Do you envisage that if the Prime Minister or Mr. Poilievre or Mr. Tonks goes to a hockey or football game--I bet you there won't be too much of that, by the way--and they pay for their own ticket and their own drinks and refreshments, but there is a pre-arranged discussion or phone call, is all of the discussion reportable that takes place at a hockey game or at the bottom of church steps, if you happen to bump into your MP, even though you're a paid lobbyist but working on a file?
How will that stultify the public process? I'm not going to say that it's easy to sell this if it's Exxon trying to drill holes in the north of the country, as much as if it's the Sierra Club saving some birds on the east coast. I mean, it's a laudable goal. How much is it going to hinder you, when I presume these things are in process, if you have to put down every detail of a discussion and report it, as required?
How much will that hinder your job, Mr. Duguay?
It's not what it's going to do to me and to the people I represent. We're quite prepared to provide whatever information you ask for. We have done that since the beginning, and we do it now.
The question really isn't about us. It's about the people we represent and the clients that Mr. Weber's group represents. As you started out saying, there's a myth out there about the pejorative lobbyist, but the people I represent aren't pejorative at all. You know a lot about them already, and we're prepared to give you whatever you ask.
The myth is that because I know somebody or because I talk to somebody, we must be doing something bad. In fact, in most of what we do, we go to the government—sometimes to you—and point out that the advice you're getting from the bureaucracy has these holes in it. I think the balancing of the advice you get from the bureaucracy, which is closed and has its own responsibilities, and the advice you get from us, and particularly from our clients, is necessary.
We can already report that the mere thought and talk of these kinds of regulations has made a lot of senior civil servants leery of talking to anybody. In our view, it is not in the public interest in the long run that legitimate conversations between citizens, which is really who we are, and the government be curtailed.
I'd like to start from the premise that a lot of us feel that the current regulations governing lobbyists are completely toothless, useless even, because we keep getting faced with examples like the David Dingwall affair, which so horrified committees when they found that he had a contingency fee to get a technology partnership loan of $450,000. When he was reminded by the commissioner or somebody that you're not allowed to take contingency fees, they restructured it so that it was a fee of the exact same dollar figure called something else. So how is that helpful?
I understand some of the points that Mr. Duguay is making, but some of us are coming from the starting position that lobbyists have bastardized democracy in the U.S. and we're not going to let that happen here. The revolving door of influence peddling is offensive to Canadians. Mr. Duguay is trying to paint it in a positive light that he's an ordinary Canadian and he has a right to talk to any politician. The fact is ordinary Canadians shouldn't have to talk to politicians through lobbyists. You aren't real estate agents. It's not like you need an agent to buy a house. We should never have a system where you need one of you guys to go and access the people who represent you.
I don't know, but I get really angry when I hear both the tone and the content of your remarks that there's nothing wrong with the system, it's just a bunch of good guys accessing their elected representatives. There was a famous case where a Liberal cabinet minister went on to work for big pharma and was lobbying big pharma at the same time that the Liberals were talking about the drug patent review and the 20-year patent period. So here you had a high-profile, famous Liberal minister lobbying the Liberal chair of the committee that was going to rule on the biggest corporate giveaway since the CNR, the 20-year patent protection for pharmaceutical drugs. That was offensive. That was influence peddling of the highest order, and people want it stopped.
So some of us feel this act doesn't go far enough. If it's too onerous for you to write down who you're talking to and when for the fees that you collect, there's something wrong with your side of the table, not ours. That tells me we're doing the right thing when you're complaining about that level of accountability.
This bill does ban contingency fees, and I would hope that the enforcement process would be such that you can't just call it something else and charge the same amount of money based on whether the deal goes through. But do you also believe that companies that are engaged in lobbying shouldn't be allowed to get any other kinds of contracts from the government while they're lobbying the government? This is a way to get at the Earnscliffe revolving door situation where it's common practice for a lobbyist firm to also be selling other services to the government that they're lobbying. Do you believe that's one of the changes we should put in place here?
Thank you, Mr. Chairman.
I would like to thank the committee for adjusting the time allocated to us for this presentation.
For more than 85 years, the Professional Institute of the Public Service of Canada has been representing the interests of employees in the federal public service, a claim almost unparalleled in the sector or indeed in this nation. PIPSC now represents 50,000 professionals across the federal public sector and several provinces in almost every profession imaginable.
It is because of the Institute's unique role as a bargaining agent for professional public service employees that it is particularly positioned to comment on Bill C-2, the Federal Accountability Act. Thank you for allowing us this opportunity.
Accountability is the hallmark of professionals. Through their associations, societies and colleges, our members adhere to a code of ethics independent of their roles in the public service. These ethics sometimes force them to make difficult decisions when faced with situations in their work where wrongdoing may be present. Yet it is this characteristic of professionalism on which the government and Canadians depend to ensure the efficacy and security of the programs and services on which they rely.
As an omnibus bill, the Federal Accountability Act is comprehensive and complex and will have far-reaching effects. Therefore, it must be deliberated carefully and thoughtfully. Canadians and public service employees deserve no less. It is in this spirit that the Institute offers the following observations and recommendations.
There are many aspects of this legislation the institute welcomes and we've listed them in our brief. Improvements to protection for whistle-blowers are chief among them. However, there are still some areas of concern where we question the impact of this legislation on our members. Among the various changes, the proposed legislation creates a parliamentary budget officer to provide reliable advice and guidance to parliamentarians in understanding government spending proposals and estimates. Given the requirement under the Public Service Labour Relations Act for both arbitration and public interest commissions to give consideration to the financial situation and the policy of government, it is important that this information be available to bargaining agents for the purpose of making their arguments during the collective bargaining process. It is not clear when or if the information for this new office will be shared with the public. It's not sure if what will be shared will be executive summaries or estimated forecasts or the full disclosure of all the information.
Also, the bill brings changes to procedures for procurement, which will undoubtedly have an impact on the thousands of PIPS members directly involved in the process of government procurement. We welcome all measures that improve the transparency and reliability of these systems, but must ensure that our members and their knowledge and experience are not overlooked. You will find more information on these aspects on page 4 of our submission.
The institute's primary area of focus with respect to Bill C-2 must be the amendments to the legislative regime for the protection of whistle-blowers. Due to the limited time we have, we have focused our comments on six areas. You can follow in our submission beginning on page 5.
With respect to the purpose of the investigation, as stated in clause 204, the new subsection 26(1)of the Public Servants Disclosure Protection Act, the purpose of an investigation is still to bring wrongdoing to the attention of deputy heads and to make recommendations. The institute sees this as a flawed foundation for the disclosure process. While wrongdoing within departments certainly is the responsibility of deputy heads, the accountability for safeguarding public funds and programs rests with Parliament. As an agent of Parliament, the commissioner cannot be relegated to the role of departmental babysitter, and there can be no presumption of innocence for senior management. His or her purpose must be to act as the eyes and ears of Parliament and, by extension, the people of Canada. The commissioner, therefore, must have the ability to order chief executives to correct wrongdoing, in addition to bringing wrongdoing to the attention of Parliament.
With regard to the Public Service Disclosure Protection Tribunal, section 201 of Bill C-2—new clauses 20 to 21.9—calls for the creation of the Public Service Disclosure Protection Tribunal composed of Superior Court and retired Superior Court judges to hear reprisal complaints. Under Bill C-11 this role was vested in the Public Service Labour Relations Board.
From the Institute's perspective it is not apparent why there was a need to create this new body. Clearly the PSLRB already has the structure and expertise to deal with complaints of reprisals. In addition it is a forum with which the government and bargaining agents have a great deal of familiarity and is experienced in the customs and standards of labour law. It also offers a mediation service which is referred to in Bill C-2. Whatever the rationale for this new tribunal, it cannot be a reason to delay protection for whistleblowers.
Therefore, the Institute recommends that the Public Service Labour Relations Board be vested with the authority to deal with complaints of reprisals and given the necessary resources to fulfil that role.
Bill C-2 has not dealt with the shortcoming we addressed in all preceding whistleblower legislation; that is the lack of an explicit role for bargaining agents. While bargaining agents are included on a consultative basis in the development of the code of ethics as prescribed by Bill C-11, section 5(3), they still have no explicit standard under this act with respect to disclosures, with the exception of the generic representation described in the act.
It may be that this has been avoided so as to not open the door to bargaining agents disclosing on behalf of the members. The legislation is clear that this is not an acceptable method of disclosure. The issue is a really simple one. The bargaining agents of public service employees have a special role in the process of protecting whistleblowers and the integrity of the public service. They have legislated obligations to protect employees under a broad spectrum of circumstances and a duty to act with diligence and fairness. They have a legislative obligation to be consulted in organizational change in the public service. These obligations have expanded the role of bargaining agents and woven that role throughout the fabric of the work environment of government workers.
We are legally recognized partners with management in tending to the work lives of our members. It only makes sense to explicitly recognize that relationship in this legislation. Bargaining agents are not generic representatives of employees but live under a legislative umbrella making them partners in this issue.
Therefore the Institute recommends that the bill be amended to read:
||Nothing in this legislation is to be interpreted so as to limit the right of employees to be represented by their bargaining agent at any time during the processes contained within this Act.
In clause 203, the new subsection 25(1), Bill C-2 proposes that the commissioner may provide access to legal counsel for advice only when public service employees are considering making a disclosure, or are involved in an investigation of a disclosure with a general cap of $1,500—which may be increased to $3,000 at the discretion of the commissioner.
Advice is not representation. Unionized public service employees have the benefit of the support of their bargaining agents; non-represented employees do not. Given the likelihood that powerful politicians and senior managers implicated in a disclosure would be supported either directly or indirectly by departmental or government counsel, are whistle-blowers then to stand alone before the onslaught of legal maneuvering and accusations? It is absolutely essential that employees taking the risk of blowing the whistle be provided with full and complete representation. To do otherwise is simply to put a price tag on accountability.
Therefore, the institute recommends that legal representation, not merely advice, be included in the resources made available to those involved in the disclosure of wrongdoing, and that the $1,500 and $3,000 limits be amended appropriately.
In clause 220, the new subsection 53(1), Bill C-2 prescribes a reward of up to $1,000 for whistle-blowers. In 2004 the institute conducted a wide survey of its membership on values and ethics in the public service. This survey was followed by focus groups from coast to coast. Overwhelmingly, the answer from our members was clear: no rewards. Several reasons for this response speak volumes as to the character of our members and the reality that they are your best resources in heightening the culture of ethics and “rightdoing” in government.
First, they want the work they do every day in providing and safeguarding services and programs for Canadians recognized and profiled—not on the rare occasions when things go wrong.
Am I out of time already?
Thank you very much. Thank you.
The Institute's major concern respecting the government's strategy respecting passage of the Federal Accountability Act is the delay in proclaiming Bill C-11. The Federal Accountability Act may take a long time to put in place and will represent a major delay in the protections for which we have been fighting for over 15 years.
The government's argument for their strategy is that they don't want to put in place the apparatus for Bill C-11 only to have to perform a major overhaul once Bill C-2 is passed. In fact, with the exception of the tribunal, there are very few structural differences between Bill C-11 and the amendments under Bill C-2.
Since the Public Service Labour Relations Board is already in existence for its usual work, there would be nothing to tear down and replace with the creation of the tribunal, only the need to transfer any outstanding files. In addition, the details of putting the tribunal in place and communicating and operationalizing the complexities of its processes will further delay the full implementation of these protections. This is not an acceptable argument for a delay in implementing these protections.
Therefore, the Institute recommends the immediate proclamation of Bill C-11 so that public service employees have protections in place now.
In conclusion, the main concern posed by the Federal Accountability Act for the institute is, by far, the delay this strategy represents in seeing protections for whistle-blowers put in place. Bill C-2 is ambitious omnibus legislation and should not stand in the way of the long-awaited protections of our members who need to disclose wrongdoing in government. The government should proclaim Bill C-11 and amend it through Bill C-2.
Thank you very much.
The Public Service Alliance of Canada wishes to thank all members of the committee for the opportunity to appear on Bill C-2. This legislation will touch the working lives of tens of thousands of public sector workers who are members of the Public Service Alliance of Canada.
The PSAC has called for legislation that provides guidance, support, and protection for public sector workers who wish to speak out against wrongdoing. For over three decades we've made extensive submissions and taken every opportunity that we can to address protection for public sector workers who wish to serve the public interest by speaking out against wrongdoing in the public service.
While Bill C-2 seeks to amend a number of pieces of legislation in areas of concern such as conflict of interest rules, election financing, and procurement, during this statement I will concentrate on the provisions dealing with whistle-blowing.
We believe that Bill C-2 falls seriously short in delivering in key areas such as protection against reprisals. In particular, while the PSAC acknowledges that there has been an attempt to address some of the Bill C-11 shortcomings, we do not believe that the amendments go far enough in addressing our concerns.
The Public Servants Disclosure Protection Tribunal: We have long taken the position that our members ought to have the right to pursue issues related to whistle-blowing through their collective agreements and indeed have negotiated clauses around whistle-blower protection in some of our collective agreements. Given this, the independent tribunal created by Bill C-2 duplicates functions that are already performed by labour relations boards; it is unlikely that the tribunal will be able to match the labour relations expertise of those bodies, which is repeatedly deferred to by the courts. Yet Bill C-2 requires a tribunal to deal with sensitive matters of discipline and on-the-job reprisals. We question the need for the tribunal to deal with matters already addressed by other boards.
When it comes to pain and suffering, damages awarded by the tribunal are capped at $10,000, whereas the Canadian Human Rights Act has a limit of $20,000. We are also concerned that the bill does not contemplate systemic remedies or orders relating to terms and conditions of employment other than money. The sole exception to this is the power to order reinstatement. We do not believe that the tribunal can fulfill its mandate without authority to change departmental practices and reporting structures. The PSAC is also profoundly concerned by the tribunal's power to order damages in lieu of reinstatement. The relationship of trust between the parties cannot be restored.
It is our position that those who come forward despite reprisals should never have to pay for doing so by losing their livelihoods. It is unclear what the outcome will be if the tribunal finds that the action isn't a reprisal but is nonetheless clearly grievable as an alleged violation of the collective agreement. There needs to be greater specificity as to how the jurisdiction of the tribunal and labour relations boards would overlap. Powers are needed to give whistle-blowers access to interim reinstatement when they come forward to make disclosure.
Furthermore, not only is the bill silent on the right to choose a representative in reprisal complaints, but the amount of money provided for access to legal advice is inadequate. Given the sensitive and confidential information before the commissioner and the tribunal, union responsibilities in respect of this information must be clearly established.
Finally, we are concerned by the new tribunal's exclusive authority to discipline for wrongdoing. The right to grieve discipline is fundamental in the unionized setting. In the past we have seen workers scapegoated for the wrongdoings of managers. The recourse of these collateral victims of wrongdoing has always been the grievance process. All grievances against discipline must continue to be reviewable by labour relations boards.
On the issue of reasonable grounds, the right to file a complaint should not include the requirement for reasonable grounds to believe. In allowing commissioners to refuse to deal with complaints not filed in good faith, the stage is set for needless preliminary objections. Similar language in Bill C-11 was the subject of vigorous union opposition. This language opens the door to stall tactics and switches the scrutiny from the wrongdoer to the whistle-blower. No evidence from the Public Service Integrity Officer suggests that this approach is warranted.
In Britain, this approach has been sharply criticized in the Shipman inquiry report. In our opinion, reviewing the substance of a complaint determines adequately whether the complaint has merit.
On awards for whistle-blowing, the PSAC is fundamentally opposed to the provision of cash awards for whistle-blowing. They are at best unnecessary, and at worst are harmful to whistle-blowers. Paying people to come forward allows abuse and leaves all whistle-blowers open to unfair insinuation. Rewards make whistle-blowers vulnerable to attacks that they are motivated by greed. What is needed to protect whistle-blowers is real compensation for financial losses and real protection from reprisals.
In regard to reprisal no longer defined as wrongdoing, under both previous unenacted whistle-blowing bills--Bill C-25 and Bill C-11--a wrongdoing included a reprisal. Subclause 197(2) of Bill C-2 amends section 8 of Bill C-11, the Public Servants Disclosure Protection Act, by deleting paragraph 8(f), which brought reprisals under the wrongdoing umbrella. The change is entirely inconsistent with Bill C-2's stated objectives.
Finally, the bill should include all public services. The PSAC criticized previous proposed legislation for not covering all federal public sector workers. We were particularly concerned about the full exemption of the Canadian Forces, the CSE, and CSIS. Bill C-2 continues the exemption, and we believe this to be unnecessary.
I'm not going to read the recommendations. They are there before you. But we'll also be sending you more detailed information on the recommendations in a brief that will come to you as soon as we can.
Can I just add something, Mr. Chair?
There are two issues. Primarily from our members' perspective, worried about protection, you have to look at the Allan Cutler situation to make that judgment. If there had been a process whereby Mr. Culter could have been advised how to safely disclose, the obligation to hear that disclosure, an outside agent, an agent of Parliament to hear it, and then protection from reprisal and a prohibition on reprisal, absolutely, from our perspective that's a protection. If those protections discourage wrongdoing then certainly they go a long way.
The other piece of this bill that is aside from whistle-blowing, but definitely plays in this issue, is the changes to the report to the procurement process. The sponsorship scandal was a procurement issue. Our concern and the concern of our members in procurement is that through the certification process and other processes, responsibility is being downloaded to the lowest level. When procurement wrongdoing happens, whether or not it's instigated at a higher level, the blame will rest on our members.
Right now in the procurement area there's something like a 40% shortfall in staffing. Not only are we putting in place these huge changes, but there may not be enough people to handle these changes. You can't build in an assumption of innocence at the top levels. If you're going to bring in accountability, it has to be reciprocal throughout the ranks.
Thank you for taking time today.
Just for the record, I think it might be worth having you back. I think the accountability act we're talking about is the accountability of government to the public, certainly, and there's more to do there. You represent the majority of the men and women who work every day. I think we should invite you back for a longer time period because you have a lot of expertise, obviously.
Congratulations to you, Mr. Gordon, on your new appointment, or your election, I should say.
A couple of things I want to touch on.... The comments you made about what the whistle-blower act should do are precise. Hopefully that's been captured here, because you're bang on.
What we don't want are rewards. I'm getting to the point where I think rewards are unethical. They're unethical, and you send a contrary message to everyone. I think that's something I've said before; it will fall off the table, as it's going in the reverse direction of where we want to go--it's unethical.
Providing a remedy to those who have blown the whistle is absolutely critical. You talked of the Shiv Chopras of the world and have seen what has happened to their lives, and that is something I think has to happen.
Here we are with the legislation in front of us, and you made some very interesting comments. I'm looking to the committee to get a legal opinion—and maybe we're going there already—on the sequence of representation here. I'm very concerned this would supersede bargaining rights. What this committee has to grapple with, look at, and get an opinion on--and maybe that's going on as we speak--is the role of collective agreements and the bargaining agents superseding this process. I don't think there was intent from anyone--I would hope not--to have that supersede people who are elected to represent employees. That would be a tragic irony, if we had a piece of legislation that would supersede people who are elected to represent employees. That would be more than a step backward. I think that's an important point you both underlined.
The other thing I want to follow up on is this notion--we heard it from Mr. Cutler and Ms. Gualtieri--of the isolation that occurs. You touched on something in terms of, at least if you have a union representing you, the role they can play—and they certainly said sometimes it's extremely helpful, other times less helpful, who knows—the role of the bargaining unit of the union to support during the period when someone makes that courageous act to blow the whistle is absolutely paramount.
I'm wanting to know from you, in terms of the onus on the whistle-blower and the supports--and we touched on it a second ago--what can be put in place to make sure they are indeed protected? Often you can deal with these things through language and through going to a fair tribunal or labour relations process, but how do we protect those men and women so we do have the culture of integrity that everyone is talking about?
Second, when you're looking at legally providing support and remedy, how would you advocate doing that, or is that something we'd pause and think about?
There are two questions there.
Thank you very much for your presentations. I would like to focus on the issue of the Public Service Labour Relations Board and its great expertise as opposed to a new tribunal.
Despite the questions and comments of some of my colleagues, both organizations have pointed out on numerous occasions that all the required expertise already exists within the Public Service Labour Relations Board. Although these are appointments, if I'm not mistaken, these appointments are done in consultation with the employer, the unions, the professional associations, etc. and the people appointed have to have great expertise in labour relations. They might be lawyers who practice in the field of labour relations, and so forth. Therefore, these are people who have academic training or professional training in this field, or both.
In addition, if I understood correctly, you are saying that we should give the Public Service Labour Relations Board the powers that Bill C-2 gives to the new tribunal as well as certain new powers that you've suggested or recommended. Therefore, an employee would have a real choice, because he would have assurance that he's dealing with people who have expertise in the area of labour relations. If we were to create a new tribunal made up of judges who don't necessarily have expertise in this area, the employee wouldn't have much of a choice. In a way, this choice would be illusory.
It's a sleight of hand.
Am I understanding your positions clearly?
My question is for whichever witness can answer.
You've said that there were two types of whistleblower. The one that you described is always from the top down or the bottom up: the employee is opposed to his immediate superior. This is the type of whistleblower we're used to. There's also a horizontal type of whistleblowing: an employee will blow the whistle on a colleague who is engaged in wrongdoing.
You represent both people. One of them has committed wrongdoing that is sufficiently serious for the other to file a complaint. First of all, how can you defend both of these people, since you are the bargaining agent for both? Secondly, how can you direct them to the Public Service Labour Relations Board when decisions handed down by the Montreal Bar Association have shown that judges at the Quebec board, undoubtedly like those of the federal board, do not have the same kind of independence as judges in a tribunal such as the Superior Court? In Quebec, we have this important problem, and it is currently moving to other provinces.
Given that Bill C-2 provides for the creation of an independent tribunal, wouldn't it be better to opt for this independent tribunal which has already passed the test of the BNA Act, when labour relations boards, even that of Quebec, because they are headed by administrative judges, have serious problems of independence and are even challenged?
So my question is in two parts. First of all, how can you represent both people? Secondly, why don't you agree with the creation of an independent tribunal? Doesn't Bill C-2 solve the problem of the independence of the Public Service Labour Relations Board?
I don't think that giving workers a choice is necessarily the best solution. The Public Service Staff Relations Board does its job very well and I do not see why it could not continue to do so.
Mr. Poilievre stated that an individual who had a dispute with the government would not trust the Labour Relations Board because its members had been appointed by the government. I do not see how the individual would have more confidence in another tribunal whose judges would also be appointed by the government.
I would like to go back to the section dealing with the lobbying. Prior to your appearance, we heard from the Registrar of Lobbyists and other individuals interested in the topic of lobbying. The registrar presented us with an interesting argument that we often hear.
According to this argument, the fact that all activities pursued by every lobbyist must be reported and made public could deter public servants, professionals or non-professionals from making, keeping and establishing contacts with lobbyists, from answering their questions or meeting with them for fear of being named in their reports. Even if they have done absolutely nothing to warrant any criticism, even if everything that they have done is perfectly legal, they could decide, in order to avoid finding themselves in a situation that could eventually be made public, to not answer this type of telephone call or e-mail or to not meet with lobbyists or their representatives.
I would like to know what you think about this and whether or not these fears are real or faceless.
I have a quick comment first, just to add my voice to this debate on whether an independent tribunal is necessary, as opposed to the current system with the labour relations board. I echo my colleagues' comments, because I honestly don't see where the problem is in allowing your members to have a choice.
It would appear to me that if, as you suggest--and you may be quite correct--because of the expertise contained in the labour relations board, we gave them, as you suggested in your amendment, more authority to deal with complaints, I still don't see where the problem is in allowing a member to make the choice themselves. We have had some whistle-blowers come to us and suggest this very thing that we've included in the act. It would appear to me that if your members are asking for it, then you should at least consider it.
I would also suggest that if, in fact, what you're suggesting is true--that the labour relations board is best qualified to deal with these issues--the majority of your members would automatically choose to go before them rather than a tribunal. So I just don't see where the problem is in allowing your members to have a choice, but again that's just my comment. You've made your case, and I'll wait for Ms. Bramwell's written argument on why you believe your position is correct.
I have a specific question and then I have an overriding comment I'd like you both to respond to.
Ms. Demers, you have stated that in the section on access to legal counsel, the $1,500 to $3,000 limits are too low, but you haven't really suggested an amount. You say they should be amended appropriately, whereas PSAC has suggested that the limit should go up to $10,000. Did you have any figure in mind that you think would be suitable for employees?
When we're referring to and I think we're getting a bit of a consensus on the understanding of what the issues are vis-à-vis the tribunal versus the Public Service Labour Relations Board, I hope we can make some more progress on that, because I think that's bringing people up to date on what the labour relations board does and perhaps by default what the tribunal's role is or isn't.
I'd like to touch upon the whole issue of ensuring that protection is provided for everyone, and I note here, in terms of the PSAC submission, who's not included. Of course, when you mention the Canadian Forces, CSIS, and so on, there will be the national security spectre as an issue, and I'd just like your comments on that.
The other thing I want to touch on is that when we look at whistle-blowers and you go back to the reason people blow the whistle--and I can go back to the Health Canada example--the fact of the matter is the billions of dollars that could have been saved if they had been listened to, never mind public health, that acknowledgment after the deed has been done and there has been acknowledgment that there has been wrongdoing. One of the concerns I have here, and this is to contemplate, is what happens after the fact. We've heard from others who have blown the whistle and said it has been extremely isolating. They've paid the price, and it's not a material equation they're looking at but also the mending, making one whole. That's just a comment.
One last thing is that when we look at what was stated by others around the table about the best place to go in terms of where remedy can be sought, I think the issue is about what octane everyone is flying on. That's the same when you're talking about legal representation. So I think the argument is a correct one, to say it might be tricky to put a cap on it, because as I think you've mentioned before, Ms. Demers, if you look at the Department of Justice and at Joanna Gualtieri's case, they have a lot of lawyers and she was on her own. I think that's important to keep in mind, that it's hard to put a dollar on it when you have a whole department, with the legion of their staff, compared to one person on his or her own or even with the representation of a union. It's not an equal playing field, and I think that has to be noted.
But I was curious about the exemption, if you could answer that, please.
Thank you, Mr. Chairman.
I do have a few comments, but they won't exceed the ten-minute time allocation.
My presentation will focus on five main topics: the appointment of returning officers, the proposed contribution rules, the application of the Access to Information Act to my office, the prosecution of election offences by the Director of Public Prosecutions, and the proposed treatment of gifts.
Bill C-2 will transfer the authority for the appointment and termination of returning officers from the Governor in Council to the Chief Electoral Officer. This is consistent with recommendations I had been making since I became Chief Electoral Officer. The bill provides that this transfer will take place after royal assent on a day specified by the Governor in Council.
As I will be ready to implement this new authority well within the six-month period following royal assent, the committee may wish to consider the appropriateness of providing for the traditional Canada Elections Act formula for the coming into effect of these provisions; that is to say, six months after royal assent, unless the Chief Electoral Officer announces he is ready to implement them earlier, which I will.
The bill proposes to remove the current ability of corporations, trade unions, and unincorporated associations to make contributions to the local level. This will greatly simplify the eligibility rules.
The bill would also change the existing cap on contributions by individuals from $5,000 to $1,000 to registered parties per year, and a further $1,000 in total per year to the candidates, the registered electoral district associations, and the nomination contestants of a registered party. That means $2,000 per year.
Contributions to leadership contests, which would be reduced to a maximum of $1,000, would remain separate from all this, which means that in a year like this year, the Liberal Party would be $3,000.
The bill's provisions respecting contributions would come into effect on royal assent, which presupposes there is no need or opportunity for Elections Canada to inform the public of the change.
The bill proposes to make the Office of the Chief Electoral Officer subject to the Access to Information Act. The only specific electoral access exception proposed by the bill provides that the Chief Electoral Officer shall refuse any request to disclose a record that was obtained or created in an examination or review under the Canada Elections Act.
The Canada Elections Act currently expressly prohibits access to specific election documents after an election without the consent of a judge. The committee may wish to consider maintaining this current protection—
All right, but you have the document in front of you.
Mr. Chairman, I will speak more slowly.
The committee may wish to consider maintaining this current protection afforded election documents and, in addition, providing that the Commissioner of Canada Elections be recognized in the act as an investigative body so that his investigations will have the same protections respecting access afforded to other bodies performing a similar investigative role respecting offences.
It should be noted that Parliament has long recognized the vital importance of public access to information in the democratic process. Elections Canada was first made subject to a broad right of public access to almost all electoral matters in 1927. It may have been the first federal institution that recognized the importance of access rights, which are vital for public confidence in the electoral process. However, that same public confidence has traditionally resulted in such access rights being tailored to the specifics of the electoral process within the elections statute itself.
For these reasons, in its deliberations, this committee may wish to consider expanding access rights to electoral matters through the Canada Elections Act rather than through the application of the generic Access to Information Act to elections. If it is the wish of the committee, I could suggest some amendments to the Canada Elections Act which would meet this need.
Bill C-2 transfers the responsibility for the prosecution of offences currently conducted by the Attorney General to a new organization, to the Director of Public Prosecutions, or the DPP. Prosecutions of offences under the Canada Elections Act, which currently are the responsibility of the Commissioner of Canada Elections, will also transferred to the DPP. The commissioner will continue to conduct investigations and pursue activities, but alleged breaches of the Elections Act will be referred to the DPP. The DPP could therefore be subject to the directions of the Attorney General. The current legislation does not allow for this situation in the case of the commissioner. That is the sole difference.
My last prepared comments will be in respect of the proposed Canada Elections Act provisions respecting gifts to candidates. In my view, in order to achieve the purpose of this statute, the gifts provisions should be redrafted. I will leave the committee notes on how this redrafting may be carried out. In fact, I will leave with the committee a series of minor amendments. I will discuss them shortly.
This redrafting is necessary in order to avoid some contributions being considered gifts and having to be reported two or even three times. Redrafting could also ensure that gifts are reported by candidates for the entire time that these candidates are collecting contributions rather than simply the 36 days of the election period or from the date they may be nominated by a registered party.
The bill also proposes that a candidate not be permitted to accept any gift or other advantage that might reasonably be seen to have been given to the candidate to influence the candidate in the performance of his or her duties and functions as a member if elected. This ban will apply only for the period that begins at the drop of the writ, or the day a candidate was nominated by a party, rather than from the date the candidate started to collect electoral contributions.
The bill will require that candidates file a confidential statement with the Chief Electoral Officer setting out all of the “gifts” exceeding $500 received by the candidate from the drop of the writ or the date the candidate was nominated, whichever is earlier, until polling day. This is in contrast with the public declarations required under section 25 of the proposed Conflict of Interest Act respecting gifts made to ministers and other public office holders.
In concluding, Mr. Chairman, I would like to note that there are a number of other more technical issues respecting the drafting of the bill, which I will not deal with in these remarks. I will leave with you a list of these matters, which are of a technical nature only, and which also includes the drafting suggestions respecting gifts that I mentioned earlier.
Should the committee wish, I will also be pleased to make my officials available to work with the drafters of the bill regarding any amendments you may wish to make to it.
This concludes my remarks.
First of all, what I would want to mention is that in both cases--as a matter of fact, in all five cases--I'm mentioning these things and bringing them to your attention so that people understand when they're passing a law what the consequences are, at least to the extent that I can read the consequences. That doesn't mean that the change is necessarily undesirable. It just means that people have to be aware of the consequences of what they're doing. That's why I focused on only five areas. They are the five main ones.
In terms of access to information, it may well be that one could make it a test under the statute that the Information Commissioner would have to apply instead of a judge in terms of access to documents. That may well work.
The other aspect of the access to information consideration that I want to bring to your attention is under the present system there is some access to information, but it's determined by the Chief Electoral Officer. What will obviously happen is that during an election there will be access requests and they will be processed through the Information Commissioner under this scheme and not under the Chief Electoral Officer. If you understand this and agree with it, it's not a problem. I know that the Chief Electoral Officer, whoever he or she will be eventually, can make this happen. That is not a concern.
With respect to the Director of Public Prosecutions, again, the comments were made in the same spirit--to bring this to the attention of the committee, Mr. Chair, so there is a recognition that there is a slight change. I do not foresee that there would be abuse, but there is a condition that would exist that does not exist at the present time, even though it would have to be done in writing by the Attorney General, if somehow he or she wished to provide direction on a prosecution specifically or general instruction. I cannot say that I'm aware of any case where there has been abuse of this in the past in terms of how our system has worked so far. All I know is that our system has worked well under the commissioner, so it behooves me to bring this to the attention of the committee.
Good morning, Mr. Kingsley.
First, I would like you to know that I believe you are impartial. Don't worry, this is not an issue I want to raise with you.
In your document there is a summary of the provisions in the bill which you take issue with. For example, donations made to candidates go from $5,000 to $1,000. All kinds of limitations have been placed on donations and companies and unions are not allowed to make donations anymore.
I have a fairly specific question for you, and then I will share the rest of my time with my colleague.
Can you tell me what changes have been made regarding the transfer of funds from provincial parties to federal parties? This happens a lot more often than we might think. It is done through individuals. The provincial party gives $1,000 to one of its faithful voters, who in turn hands the money to the federal party. It also goes the other way. Is there anything in Bill C-2 to prevent this type of thing from happening? Unions, which supported certain parties, particularly the NDP, are not allowed to make political donations anymore. The same goes for companies, which supported the Liberal Party. But what about support from provincial parties? Is there anything in Bill C-2 which addresses that matter?