OGGO Committee Meeting

37th PARLIAMENT, 3rd SESSION

Standing Committee on Government Operations and Estimates

EVIDENCE

CONTENTS

Thursday, April 29, 2004

¿

0905

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

Dr. Edward Keyserlingk (Public Service Integrity Officer, Public Service Integrity Office)

The Chair

Dr. Edward Keyserlingk

¿

0910

The Chair

Mr. Leon Benoit (Lakeland, CPC)

Dr. Edward Keyserlingk

Mr. Leon Benoit

Dr. Edward Keyserlingk

¿

0915

Mr. Leon Benoit

Dr. Edward Keyserlingk

Mr. Leon Benoit

Dr. Edward Keyserlingk

¿

0920

The Chair

Ms. Monique Guay (Laurentides, BQ)

Dr. Edward Keyserlingk

Ms. Monique Guay

Dr. Edward Keyserlingk

Ms. Monique Guay

Dr. Edward Keyserlingk

¿

0925

The Chair

Dr. Edward Keyserlingk

The Chair

Dr. Edward Keyserlingk

Ms. Monique Guay

Dr. Edward Keyserlingk

Ms. Monique Guay

Dr. Edward Keyserlingk

The Chair

Dr. Edward Keyserlingk

The Chair

Dr. Edward Keyserlingk

The Chair

Dr. Edward Keyserlingk

The Chair

Dr. Edward Keyserlingk

¿

0930

The Chair

Dr. Edward Keyserlingk

Ms. Monique Guay

Dr. Edward Keyserlingk

Ms. Monique Guay

Dr. Edward Keyserlingk

Mme Monique Guay

The Chair

Mr. Pat Martin (Winnipeg Centre, NDP)

¿

0935

Dr. Edward Keyserlingk

Mr. Pat Martin

Dr. Edward Keyserlingk

Mr. Pat Martin

Dr. Edward Keyserlingk

Mr. Pat Martin

¿

0940

Dr. Edward Keyserlingk

Mr. Pat Martin

Dr. Edward Keyserlingk

Mr. Pat Martin

Dr. Edward Keyserlingk

Mr. Pat Martin

Dr. Edward Keyserlingk

Mr. Pat Martin

Dr. Edward Keyserlingk

Mr. Pat Martin

The Chair

Mr. Roger Gaudet (Berthier—Montcalm, BQ)

Dr. Edward Keyserlingk

¿

0945

Mr. Roger Gaudet

Dr. Edward Keyserlingk

Mr. Roger Gaudet

¿

0950

Dr. Edward Keyserlingk

Mr. Roger Gaudet

The Chair

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

Dr. Edward Keyserlingk

¿

0955

Mr. Paul Forseth

The Chair

Dr. Edward Keyserlingk

The Chair

Hon. Brenda Chamberlain (Guelph—Wellington, Lib.)

Dr. Edward Keyserlingk

À

1000

Hon. Brenda Chamberlain

Dr. Edward Keyserlingk

Hon. Brenda Chamberlain

Dr. Edward Keyserlingk

Hon. Brenda Chamberlain

The Chair

Dr. Edward Keyserlingk

The Chair

Dr. Edward Keyserlingk

The Chair

Dr. Edward Keyserlingk

The Chair

Dr. Edward Keyserlingk

À

1005

The Chair

The Chair

À

1010

Dr. Kenneth Kernaghan (Chair, Professor of Political Science and Management, Brock University, Working Group on the Disclosure of Wrongdoing)

À

1015

The Chair

Mr. Paul Forseth

À

1020

Dr. Kenneth Kernaghan

Mr. Paul Forseth

Dr. Kenneth Kernaghan

À

1025

Mr. L. Denis Desautels (Executive Director, Centre on Governance, and Executive-in-Residence, Faculty of Administration, University of Ottawa, As Individual)

The Chair

Ms. Monique Guay

Dr. Kenneth Kernaghan

À

1030

Ms. Monique Guay

Mr. L. Denis Desautels

Ms. Monique Guay

À

1035

Dr. Kenneth Kernaghan

The Chair

Mr. Pat Martin

Dr. Kenneth Kernaghan

À

1040

Mr. Pat Martin

Dr. Kenneth Kernaghan

Mr. Pat Martin

Dr. Kenneth Kernaghan

Ms. Hélène Beauchemin (President of HKBP Inc.; Working Group on the Disclosure of Wrongdoing)

Mr. Pat Martin

Ms. Hélène Beauchemin

Mr. Pat Martin

The Chair

Mr. Alex Shepherd (Durham, Lib.)

À

1045

Dr. Kenneth Kernaghan

Mr. Alex Shepherd

Dr. Kenneth Kernaghan

Mr. Alex Shepherd

À

1050

Dr. Kenneth Kernaghan

The Chair

Mr. Alex Shepherd

Dr. Kenneth Kernaghan

The Chair

Mr. Leon Benoit

Dr. Kenneth Kernaghan

Mr. Leon Benoit

Dr. Kenneth Kernaghan

À

1055

Mr. Leon Benoit

Dr. Kenneth Kernaghan

Mr. Leon Benoit

Dr. Kenneth Kernaghan

Mr. Leon Benoit

The Chair

Dr. Kenneth Kernaghan

Á

1100

The Chair

Mr. L. Denis Desautels

The Chair

Mr. L. Denis Desautels

The Chair

Dr. Kenneth Kernaghan

The Chair

---

CANADA

Standing Committee on Government Operations and Estimates

---

NUMBER 011

l

3rd SESSION

l

37th PARLIAMENT

---

EVIDENCE

Thursday, April 29, 2004

[Recorded by Electronic Apparatus]

¿  (0905)  

[English]

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

    Pursuant to the order of reference of Tuesday, April 20, 2004, we are dealing with 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 wrongdoings.

    This morning we have two panels of witnesses. The first witness is Mr. Edward Keyserlingk, public service integrity officer.

    Good morning, Mr. Keyserlingk. We welcome you and invite you to introduce your colleagues.

    We look forward to your input. I'm sure the members will have many questions for you, so please proceed.

    Dr. Edward Keyserlingk (Public Service Integrity Officer, Public Service Integrity Office): Thank you very much, Mr. Chairman.

    I welcome this opportunity to present my views on Bill C-25 and to answer any questions you may have on the proposals I have submitted along with my submission.

    I would like to introduce my two colleagues, Jean-Daniel Bélanger, who is senior counsel at the Public Service Integrity Office, and Pierre Martel, who is executive director.

    The binders, I understand, have not all reached you, but they are on the way. I believe they were sent yesterday.

    The Chair: I'm going to assure you that we are human and probably wouldn't have had the time to read them anyway.

    Dr. Edward Keyserlingk: I assumed that already, and I will proceed on that basis.

    The binders you have, or will receive, contain several documents. One is the submission itself, the written submission. There is also a document that provides clause-by-clause analysis of the bill and proposals we are making, right beside each particular section. There is also a document that provides, in detail, the processes we are proposing for an amendment to the bill, which covers both the process for the disclosure of wrongdoing and complaints about reprisal.

    If I may begin with a short oral presentation, Mr. Chair, in my view, Bill C-25 contains some very positive features. It is law, not simply a policy. It makes reprisals against whistle-blowers legally prohibited, and, with some exceptions, the scope of the proposed legislation extends to the entire public sector. It includes some reference and deference to the role of Parliament as well.

    Nevertheless, in my view, Bill C-25 is seriously and surprisingly deficient. It was advertised in advance as a major plank in the government's current campaign against wrongdoing. As a result, I and many others had been led to believe the officer or agency to be legislated would be independent enough to encourage the disclosure of serious wrongdoing against the public interest, but it is not, in my view, independent enough.

    I and others had expected the legislation would be robust enough to enable serious wrongdoing, if it existed, to be uncovered, wrongdoers to be sanctioned, and whistle-blowers to be protected, but it is not, in my view, robust enough.

    I do not think it will work, or at least it will not work well enough. Enough cases may come to the commissioner to make it seem like a success, particularly to those who may be convinced there is little or no wrongdoing in the public service, but it cannot, in my view, work in any real or full sense. I believe the cases would continue to be essentially about employment-related grievances, not about the serious wrongdoing against the public interest that the legislation and commissioner are supposed to be about.

    It is precisely, I believe, one of the fundamental flaws of this legislation that it rightly lists a number of serious wrongdoings, seriously wrongful activities, as the target, such as violations of laws and regulations, gross mismanagement. But the tools, processes, and protections provided are, to a large extent, more suitable for employment-related grievances than the investigation of serious wrongdoing against the public interest.

    Labour boards, as proposed by Bill C-25, to deal with complaints of reprisal are not an adequate means of dealing with reprisal for wrongdoing, which is rightly categorized in the bill as a form of very serious wrongdoing, not as a labour-related issue.

    Bill C-25, in other words, in my view, has a serious identity crisis in that it is professedly to deal with serious wrongdoing against the public interest. In fact, the measures within it are suited more to deal with employment-related conflicts, grievances, and so forth. It will not, in my view, work well enough because it does not do what the people it was designed for, public servants, told us they would need if they were expected to take the risk of coming forward with disclosures of serious wrongdoing.

    They told us that, and they are still telling us that in many ways. They have told us that orally. They've told us that in surveys. They've told us that by voting the way they did, with their feet, in that they did not in fact disclose wrongdoing they knew about, for instance, in the privacy commission episode.

    In the final analysis, Mr. Chair, I do not believe it matters what you, I, the office of values and ethics, ministers, cabinet, or Parliament think the ideal wrongdoing in disclosure systems should be. What does matter is whether the people it was designed for have enough confidence in it to use it and whether they believe the system can be effective and protective.

    To ignore those voices, it seems to me, would be like the manufacturer of a car who surveys clients and potential buyers as to their buying preferences and then proceeds to design the car in a way that ignores all those preferences.

¿  (0910)  

    This bill is something like a car, in that it was designed to encourage public servants to come forward with credible, good-faith disclosures of serious wrongdoing. It doesn't meet what they say they would need in order to do that. Quite simply, I think that accounts for the major flaws of this bill.

    If I may, I will leave the rest of my remarks unspoken, because I believe you have some questions, and I think anything further I might want to say will come up in your questioning.

    Thank you.

    The Chair: All right.

    We're going to lead off with Mr. Benoit.

    Mr. Leon Benoit (Lakeland, CPC): Thank you, Mr. Chair, and thank you for being here this morning.

    Mr. Coderre, the President of the Queen's Privy Council, is quoted in the Ottawa Citizen as saying this bill is inspired by the 34 recommendations of the working group on the disclosure of wrongdoing and strikes a balance between encouraging bureaucrats to report wrongdoing and protecting against disgruntled employees with an axe to grind. I'd just like your evaluation of that statement.

    Dr. Edward Keyserlingk: I do not believe it incorporates the fundamental recommendations of the working group. I will leave it to the working group members themselves who will follow me to expand on that or give you more detail, but it seems to me that the fundamentals of the working group recommendations, which included that the commissioner should be an agent of Parliament, should have adequate investigational tools, should be able to report to Parliament, were not in fact incorporated in the bill itself, those recommendations being essentially the same as the ones in my annual report of 2003. I'm not saying it was not inspired in any sense by the recommendations, but I believe the fundamentals of that working group report made it very clear that this commissioner ought to be an agent of Parliament, have the investigational tools needed, be able to secure information as needed, be able to receive allegations of wrongdoing from any source, which also is not in the bill, and several other things.

    Mr. Leon Benoit: It seems in a way to have many of the same flaws as what was supposed to be an ethics commissioner reporting to Parliament. Given what actually happened in that regard, there seem to be a lot of similar weaknesses.

    You said the test is whether the people it really applies to have confidence in it. Another test is whether it would have worked in the past. If you look back to some of the whistle-blowers involved in some of the recent scandals, could you walk us through whether you think it would have worked for them, Mr. Cutler and any others you might have in mind? You must have thought about that, because that's one of the tests, I think, you would apply to judge whether this would work. So if you could, walk us through why you think this would or would not have worked in dealing with some of these whistle-blowers who have recently come forward.

    Dr. Edward Keyserlingk: The fundamental reason why it would not have worked is because it misreads how extremely important it is for anybody thinking of disclosing serious wrongdoing against the public interest to be assured that the process will be both effective and protective.

    I think the bill misreads just how difficult it is for someone to come forward about a disclosure that is not about themselves personally, but is what we could call a public interest disclosure, where they take all the risk but get none of the benefit. People who are expected to have the commitment and courage to do that need to be assured that when they come forward, what will be done with what they say will lead somewhere, and they will be protected from reprisal. For that you need a system that has the appropriate investigative powers.

    People will look to the system to see whether the sanctions for reprisal exist and whether they're serious enough to discourage reprisal. They will look to how the process will proceed, how the issue they bring to this office will be investigated. Is the process going to lead to a conclusion that is under the control of that body, as opposed to being spread out somewhere else?

    I think they will be discouraged by the fact that in this bill, reprisal complaints will essentially be given to the labour boards, because the commissioner will have no capacity thereby to say, “This is how we will deal with the complaint of reprisal should you bring us one at some later point”. Those labour boards are not under the purview of the commissioner, nor are they established to deal with reprisal, which is far more complex and subtle than the typical employment-related issues that those boards deal with.

¿  (0915)  

    Mr. Leon Benoit: What capacity will the labour boards have to deal with these issues?

    Dr. Edward Keyserlingk: In the bill they have the capacity to resolve conflicts, to have public hearings, and so forth. The problem with that is this is not essentially about the conflicts. This bill purports to be--and rightly so--about serious wrongdoing against the public interest, not about employment-related conflicts.

    That is one of the basic flaws that has led this bill astray in proposing that this system go to the boards, when that ought to be under the purview of the commissioner, who would deal with this as a very integral aspect of the initial complaint of wrongdoing. They go together. When someone comes with a complaint of wrongdoing, in our experience we have found that we have to assure them at the same time of how we will deal with any complaint of reprisal that should come up later. If we can't do that, they understandably will not proceed.

    So I think the people we're talking about now who have been coming forward would be essentially discouraged from coming forward, even if they could come. The other problem is that some of them don't qualify as people who could come before the commission, as they aren't public servants.

    Part of what we are proposing is that this bill ought to be open to anyone who comes forward with a credible allegation from any source about wrongdoing in the public service. The other point, of course, is that they would look to the system to see whether there was any likelihood of resolving the issue, finally and fully, within the umbrella of that same commission.

    That is why we are proposing that the commissioner ought to be able to make special reports directly to Parliament if the issue is not resolved in the normal way by reporting it to the deputy minister or the deputy head of the executive. In the case of complaints of reprisal, the commissioner ought to be able to resolve them within the commission's own mandate, should they not be settled between the parties.

    Most of the time we foresee that the issue would be settled amicably and fully between the deputy minister and the parties concerned, but it is utopian to imagine this would happen in all cases. There has to be, when people look at this system, a place where they can say, “If people don't do the right thing, where is the door to a final resolution that is objective, fair, and independent?”

    Mr. Leon Benoit: Will this legislation, as it is now, really change much? Judging from people who have come forward in the past while, would it really have changed much for them?

    Dr. Edward Keyserlingk: It promises that it will, but I don't believe it actually will. It essentially takes what now exists on the basis of the policy and puts it under a legal umbrella. But it does not have what the law normally provides, which are investigational powers, the ability to resolve the issue finally, and some enforceable mechanism that is under its control. Those things aren't there, and that means it isn't essentially different from what we now have.

¿  (0920)  

    The Chair: Thank you, Mr. Benoit.

    Madame Guay, please.

[Translation]

    Ms. Monique Guay (Laurentides, BQ): Thank you Mr. Chairman. Thank you, gentlemen for coming here this morning.

    We also have concerns about sections of this bill pertaining to the commissioner. According to this bill, the commissioner will be appointed by the House but will not be directly accountable to Parliament. He will report through some minister –- we still don’t know which one—and we find that worrisome. We think that he should table his report directly in the House so that it can be read by members of all parties.

    I do not know if the minister will accept this amendment, but our witnesses seem to be quite unanimous on that matter. We do not want a kind of ethics commissioner only accountable to the Prime minister. It is not clear for us. We really want someone who will be accountable to the House. I wish to hear your opinion on that point.

    Dr. Edward Keyserlingk: May I answer in English.

    Ms. Monique Guay: Yes.

[English]

    Dr. Edward Keyserlingk: It is one of our recommendations that the commissioner be able to report directly to Parliament, in the same sense as other agents of Parliament do, typically to the Speaker of the House. The reason we're proposing that--which is essentially the concern you have--is both for real independence purposes and for the appearance of independence. Both of those factors count in the way people estimate this system and whether they will actually use it.

    It's very important that the commissioner be able to make reports directly to Parliament when it doesn't work up to that point, because hopefully the system will work very often in dealings between the commissioner and the chief executive or the board of the crown corporation. But when it doesn't get resolved--and it will probably not be that frequently, but it has to be there as an avenue--the commissioner ought to be able to go directly to Parliament, because the whole point of what we have proposed is that Parliament should be the final repository of these reports.

    If people see it going through a minister, even though it's just for tabling purposes, it will look as though somehow the minister has a say in that report. In fact, the minister will have a say, in the sense that the minister can delay the report up to a point. It may complicate interaction between that minister and the commissioner. The minister may want to negotiate. Who knows? It will certainly delay it in terms of time. But it will colour the process, in the sense that it will make it look like the commissioner is not really sufficiently independent.

[Translation]

    Ms. Monique Guay: We think that it will be an important issue for this committee. We share your view that the process should be completely transparent and open. To this end, the commissioner should be allowed to report directly to the house at any time. If he should decide to make a preliminary report for any reason or in extremely urgent circumstances, he should be able to do so without having his hands tied by a department.

    There also is the issue of the senior officers and their appointment. How do you see this? We were told that they are people already working in the various departments and that they will receive special training. How independent will they be? This is also a concern for us. How do you see this?

[English]

    Dr. Edward Keyserlingk: Yes, on these agents supérieurs, which are referred to as senior officers as well, this issue was not really addressed very much in this legislation, which the senior officers, understandably, have some concerns about. It is one reason why people will prefer, in many cases, to go to a commissioner, as opposed to going within their department. This does not mean there are not some very good people in the departments with sometimes great skill in dealing with these issues...and sometimes are protected from a conflict-of-interest situation because of their position.

    Very often, people are reluctant to go to such an internal mechanism because they fear, perhaps wrongly, that there will be a conflict of interest or that the person concerned may not be qualified enough in this issue to deal with it. So our position on that is they should receive training, for sure. They should be people who are as protected as possible from being in a conflictual situation, and that means, in many cases, they will not be the right person because there will be a conflict. They might be the one the complainant is actually complaining about.

    Secondly, my view is that people ought to be free to go, either internally to those senior officers or agents supérieurs, or to the commissioner, and it ought not to be made preferable which way they go. That ought to be entirely their choice, because as soon as you put conditions in place on whether you can go to your internal person or to the commissioner, it sounds like one is discouraging going to the commissioner. I think this is an obstacle they don't need, because, once again, especially if they're prepared to report serious public interest wrongdoing, these people ought to be helped and encouraged in every possible way. And every obstacle we can remove we ought to remove. So it doesn't seem to me it ought to be preferable to go one way or the other. It should be the choice of that person and on the circumstances of the case.

¿  (0925)  

    The Chair: Excuse me, if I may, this is an extremely important point. It was raised with the minister and the officials. Are you interpreting what the act says, or is it just the appearance of what the act says?

    Dr. Edward Keyserlingk: It's the appearance. The public servant is entitled already in the act to go either to the senior officer or to the commissioner.

    The Chair: The word in the bill is “or”, and it's up to the employee, the public servant, to make that choice, based on whether they feel it could be handled appropriately internally.

    Dr. Edward Keyserlingk: But there are conditions in the bill as well. It's those conditions that I believe should not be there, because it sounds like there is a preference, and there is a preference in the bill, for sure, that people go internally to their senior officer, and I see no particular reason why that should be there. I think it serves, in the perception of public servants, as an obstacle because it isn't clear whether they can meet those conditions and therefore they might hesitate or not come forward. This is in no way a criticism of the existence of the internal system. I think very often it seemed to work very well. I'm simply saying that it ought to be entirely up to the choice of the public servant.

[Translation]

    Ms. Monique Guay: This is the impression people will have when they read this bill. They will think that they must go to the senior officer rather than to the commissioner because there are conditions to meet.

    Dr. Edward Keyserlingk: Precisely.

    Ms. Monique Guay: This is dangerous.

[English]

    Dr. Edward Keyserlingk: Exactly. The wording in the bill is actually that they can go to the commissioner, but “only if”, so the perception is created that you only go if you meet these conditions, and who knows how these conditions will be interpreted. We're talking about perception, but we're also talking about how that might discourage people from coming forward.

    The Chair: Where in the bill does it say there are the conditions?

    Dr. Edward Keyserlingk: In clause 12 of the bill.

    The Chair: But it says “or”.

    Dr. Edward Keyserlingk: It is “or”, but it's an “only if”.

    The Chair: We did this...this is so important.

    Dr. Edward Keyserlingk: If you look at subclause 12(1), it says “A public servant may disclose a matter to the Commissioner only if”. And then come the conditions.

    The Chair: Yes, but paragraph 12(1)(b) says...the public servant doesn't think it can be properly handled by the internal representative, but the discretion and the choice is for the employee. It's not a condition they have to meet; it's a decision they have to make. There's a difference here.

    Dr. Edward Keyserlingk: That's right, but the only ifs are conditions in effect the public servant will have to meet: only if he's already disclosed the matter and is of the opinion it hasn't been appropriately addressed or if the public servant believes on reasonable grounds it would not be appropriate to disclose the matter to his superior, etc. But then the commissioner--

¿  (0930)  

    The Chair: That's one of, not all of; this is important.

    Dr. Edward Keyserlingk: Exactly: one of.

    But then the commissioner is expected to make a judgment about that as well, so the commissioner is in the position of being able to say he or she doesn't think they have met that. Therefore, again, it's a kind of obstacle we don't need.

[Translation]

    Ms. Monique Guay: He might also refuse to deal with the allegation. He might refer the whistleblower to the senior officer because he does not meet the criteria. In such a case this person will simply withdrawn because she will not want to talk to her supervisor for any reason.

[English]

    Dr. Edward Keyserlingk: That's right; exactement.

    Once again, I want to say that in our experience we have sometimes suggested to a person who has come forward and not gone internally that they might want to think about that because of the specific nature of that particular complaint. Because we might know who the senior officer is, a very capable person handling that, we've also suggested to some people that they might want to go with their complaint to another mechanism because it was more appropriately suited to what their problem was.

    It's not as if we are not also--and I assume that would be true of the commissioner--in a position to, in the interest of that person, suggest another route. It's simply that I think that ought not to be in any sense favoured by the law or that the law give any kind of impression that there is a best way to go only if...can you go elsewhere?

[Translation]

    Ms. Monique Guay: We should make things easier for those people. When you want to complain for any reason the result is never 100% sure. People do it, but quite reluctantly. They are afraid. If we make things even more complicated we can be sure that it will never work. Nobody will be ready to go through such a hassle.

    I have a last question and I shall come back later. Earlier you said that they were no real sanctions for reprisal. What would you suggest. Should there be fines? Are you even considering dismissal or judicial proceedings? What do you suggest?

[English]

    Dr. Edward Keyserlingk: The question of sanctions is a very important one for a reprisal against whistle-blowers. The bill presently allows for disciplinary sanctions that are already available for other matters, sanctions up to the dismissal of the person who is found to have practised reprisal. But in my view that's totally inadequate; that is not a serious enough sanction.

    I say this partly for reasons of equity. In fact, the same federal government has proposed and enacted bills in other contexts relating to the private sector that provide for fines of up to $10,000 for those who practise reprisal against whistle-blowers in two areas. One is the area of privacy issues in the private sector, and the other is the issue of insider trading and that sort of thing. In fact, we have an amendment to the Criminal Code that provides for a fine of up to $10,000 for that.

    So it seems to me that what we have here is a completely inequitable situation, where we say the same activity that in the private sector can merit up to the serious fine will not be considered as serious in the public sector. That, I think, is the wrong message to send, and it's an inequity between these two sectors.

    I don't claim to know what the exact amount should be; that's an issue that needs study by itself. But I believe it has to be something more serious, given that this is the hurdle potential whistle-blowers have to get over if they're going to come forward. They'll ask, does it look like the law is serious about sanctions against reprisals for what I'm proposing to do? If the sanction involved doesn't look serious enough, they won't come forward.

[Translation]

    Mme Monique Guay: Thank you.

[English]

    The Chair: Thank you.

    Mr. Martin.

    Mr. Pat Martin (Winnipeg Centre, NDP): Thank you, Mr. Keyserlingk.

    I want to begin by thanking you for demonstrating such a sensitivity to how difficult it must be for employees to come forward, such an understanding of that.

    My background is as a union representative, and I've dealt with some of these issues on that level. I too think this bill fails to send the message or, if nothing else, the perception that it will be safe to come forward. That might be the biggest problem, notwithstanding technical details we might wrestle with today.

    Some of your observations have been very useful to us as we go into this bill, so let me start by asking you this. The government has received no fewer than three recent studies recommending that the officer or commissioner dealing with whistle-blowing should report directly to Parliament. How do you think they could possibly ignore them? One of those studies was by this very parliamentary committee in fact. By what reasoning or logic do you think they ignored that fundamental principle that was almost unanimously endorsed in three recent studies, in many previous studies, and by other jurisdictions around the world? Can you speak to that at all, what their rationale might have been?

¿  (0935)  

    Dr. Edward Keyserlingk: I don't pretend to know what the answer is. However, some explanations have been given by various people in the government. One is the explanation that internal disclosures can be more effective and that we really don't need, therefore, an agent of Parliament with that kind of independence we're talking about. To that, I answer that there's no evidence for that at all. In fact, the evidence in our own federal public service is quite the contrary.

    As it is, with respect to the jurisdictions that have been referred to in the putting together of this bill, the bill itself is a bit of a pastiche of bills from other jurisdictions, particularly the Westminster jurisdiction type of thing. In fact, in those jurisdictions it's established that people aren't coming forward with the kinds of disclosures we are talking about. They might be coming forward about grievance-related issues, but they're not coming forward with disclosures about serious wrongdoing against the public interest.

    Another explanation I've heard is that allowing light to shine on problems inside government is not always the best approach. This was a comment made, I think, by Mr. Heintzman the other day. I take great issue with that as a general principle because it seems to me that the whole point of this bill, this statute when it's enacted, should be exactly to shine light on problems inside government.

    Mr. Pat Martin: That's what the public hopes, I believe.

    Dr. Edward Keyserlingk: That is, I believe, what the public expects; that is, I believe, what Parliament expects; and that is, I believe, what should be expected because the public service is the “public” service. It's in the service of the public and is therefore working through and representing Parliament. Shining light on problems inside government, I believe, should be one of the primary goals of this statute.

    Mr. Pat Martin: That's one of the objectives here of the whole exercise.

    I don't mean to interrupt, but I have such little time and only one turn, probably.

    The minister actually said it was better to go directly to the executive and this was actually a plus for the whistle-blower, that he wouldn't have to be bothered with the tedium of going through Parliament: he could go directly to the executive. Well, it's the executive he's blowing the whistle on, essentially. So if they're suggesting going through the executive or to a minister, what if that minister was directly implicated in the very event, such as the maladministration of funds or whatever?

    Dr. Edward Keyserlingk: I think you're right. What I would add, though, is that in actual practice the wrongdoing in question can very often be adequately addressed through the commissioner making a report to the chief executive, the deputy minister, or the justice minister. I don't have a problem with the fact that very often that would deal with it effectively.

    My problem is that there ought to be one further step in case that doesn't happen. We ought not to assume it will be dealt with effectively, because people are people. This is not a criticism of the public service per se; it's a criticism of any large institution. There has to be a fail-safe next step that is outside the system, where something that doesn't get done properly can be dealt with independently, in this case by being referred to Parliament.

    Mr. Pat Martin: I agree, and I think the point Madame Guay raised is very pertinent. The way this reads, it puts the burden on the whistle-blower in the decision whether to go directly to their supervisor or directly to the commissioner. That is the one point I'd add.

¿  (0940)  

    Dr. Edward Keyserlingk: Yes.

    Mr. Pat Martin: You also make the point that there are no fines or sanctions against the employers cited for reprisals, etc. And there are inadequate investigative powers. You don't have the power to subpoena, you don't have the power to go into cabinet records.

    Dr. Edward Keyserlingk: Yes.

    Mr. Pat Martin: Wrapping up all of those things together, do you think the government...? Well, you won't answer this, so maybe I'll say this. It looks as if the government has put this bill forward knowing it can't possibly pass. As opposition MPs, we suspect that this is really window-dressing. It is so fundamentally flawed and these flaws are so integral to it that they must have known it couldn't meet this opposition.

    Dr. Edward Keyserlingk: I'm not in a position to answer that, obviously. I don't know any way of ascribing motives here, and I'd prefer not to, but it does seem to have been done in great haste. Why, I don't know, but that does seem to be the case.

    Mr. Pat Martin: It took eleven years, or something like that.

    Dr. Edward Keyserlingk: When you come to the issue of investigative powers, I think you're quite right. A key in this process has to be adequate investigative powers. In the absence of those powers, it does look like there is no great willingness to get to the bottom of the issue. You must have proper investigative tools. You must also, I think, remove obstacles to access to evidence. This is another problem with this bill. The bill, in fact, denies access to cabinet records, lawyer-client privileged information, and so forth, which could be probative evidence in some cases, important probative evidence, in the absence of which you may not be able to make a conclusive decision about the responsibility of the public servant in question.

    It also does not allow the commissioner to follow the evidence wherever it leads, which may be beyond the public service. I'm not arguing that the commissioner himself or herself should necessarily be empowered to go beyond the public service, but there ought to be the ability to collaborate closely with authorities and agencies and arms in those other places without giving up the investigation. Otherwise, we're going to have incomplete investigations, which work to the detriment of the alleged wrongdoer as much as anyone else, because the alleged wrongdoer will be left as guilty or not guilty. No one will be able to say.

    Mr. Pat Martin: That's right.

    Dr. Edward Keyserlingk: It's too restrictive in all those ways, which makes it seem there was no serious intent behind the bill to allow investigations to proceed in their natural course. As a result, we have a bill that does not acknowledge that you cannot expect cases to be decided reliably and comprehensively unless you are allowed to have access to whatever you need to make that conclusion.

    That doesn't mean the commissioner should not be obliged to handle confidential information and protected information very carefully. There could be a way of reporting that is geared to that reality. The commissioner could report to Parliament about protected information in a way that is confidential and not report it publicly. So there are responsibilities on the commissioner with access to certain kinds of information, but to put a blanket wall in front of the commissioner with regard to access I think is like saying, sorry, you can't complete your investigation. I'm not saying that will arise often, but it will undoubtedly arise, and you have to foresee that in this kind of process.

    Mr. Pat Martin: Thank you very much.

    The Chair: We'll move on to Mr. Gaudet.

[Translation]

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

    I have three questions. First you said that you are a public service integrity officer. What does this mean? I am intrigued.

[English]

    Dr. Edward Keyserlingk: We are established by a Treasury Board policy, which we call a disclosure policy, to receive allegations of wrongdoing in the public service, essentially the same kinds of wrongdoings that are provided for in this bill; to investigate those that look credible; and to make reports and recommendations to the deputy ministers, the deputy heads, with the provision that if the deputy does not act in a way that we believe is appropriate or timely, we can go to the Clerk of the Privy Council and ask the clerk to exercise some pressure on the deputy minister. That's as far as we can go at this point.

    So we are receiving allegations, but they tend to be largely allegations that are in the nature of employment-related grievances, which is partly what leads me to the conclusion that I came to, which is that unless you have a robust system with the appropriate tools and processes, people will come forward with that kind of allegation, probably because they see a certain benefit for themselves and very often because they are known to be the person with the complaint in the department--it's not a question of confidentiality any more for many of these people.

    But the kind of wrongdoing we are talking about, we typically don't get very much of--serious wrongdoing against the public interest. That is why we proposed in our 2003 annual report that there be law instead of policy, that the office be supported by law, and not simply by law, but by law that in fact creates an agent of Parliament with the normal legal investigational tools and a process that fits within a normal investigation, with some ability to see the end of it by making recommendations that can be enforced.

    That is essentially what we do.

    We are an office of eight people who work fairly independently. As I said in my submission, I believe from the start we received very good collaboration from the Treasury Board allowing us within the limits of the disclosure policy to establish a functionally independent office. We are not interfered with by anyone. The problem is we can't go very far with what we find, and because we can't offer legal protection, we don't have sanctions, we don't have an ability to finally come down with any kind of ruling, people typically don't come forward with that kind of allegation.

    I'm not saying we don't have some. We do have some. And that's to the credit of the public servants who nevertheless do come forward. But I believe we ought not to impose that kind of obstacle on public servants. If we want them to come forward and bring this kind of thing to the attention of the public service and the public through Parliament, then there are things that have to be done. This bill is a start, but it's a very weak start.

¿  (0945)  

[Translation]

    Mr. Roger Gaudet: Thank you.

    Secondly, do you think that this bill as presented, with no amendment, will protect federal employees?

[English]

    Dr. Edward Keyserlingk: No, it is not strong enough in the bill. It is not strong enough in the sense that there are no very onerous sanctions in the bill for reprisal against whistle-blowers. There is a prohibition of reprisal, which is very good--a legal prohibition. But a legal prohibition is normally backed up with sanctions that look like normal legal sanctions. All we have are disciplinary measures, which I do not think are sufficient. And as I said before, I think it's inequitable to have weak sanctions in the public sector and very strong, onerous sanctions in the private sector--by the same government, the same legislation.

[Translation]

    Mr. Roger Gaudet: On the other hand, employees should not become KGB agents. We need a balanced law that will serve the interests of everybody, those of whistleblowers as well as those of the alleged wrongdoers. The law must have teeth, because if there is no protection for the employees and no sanctions against wrongdoers, it wont go very far.

    Thirdly, do you find it acceptable that an organization can ask to be exempted. Because we received a letter from CBC-Radio-Canada asking for an exemption. Do you find this acceptable?

¿  (0950)  

[English]

    Dr. Edward Keyserlingk: No, I don't think it is normal. I understand their concerns, but in my view it is a very big step forward that crown corporations have come under the umbrella of this bill, and hopefully, eventually, this statute. So I do not think there should be that kind of exemption.

    It gets more complicated, I think, for employees who are journalists and media people, but as long as they are public sector employees, then I think that's something they ought to have available.

    I see it more as having available access to this kind of commissioner--not as a burden on them--and a level of disclosure of wrongdoing that they don't at present have. I think this might be a bigger concern, perhaps, for the administration than for the average employee. I'm not sure. I have no reason to say that; I just wonder if that's the case.

    It's simply that I think it is a good thing for all crown corporations to come under the umbrella of this commissioner. But I don't see it as a burden. I see it as access to an avenue that they haven't had to this point.

[Translation]

    Mr. Roger Gaudet: Thank you.

[English]

    The Chair: We have Mr. Forseth, and then probably we'll have a couple of minutes at the end for Mr. Martin. I think he has another question to ask.

    Mr. Forseth.

    Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, CPC): Mr. Keyserlingk, thank you for coming today. Your comments about it being a benefit or a burden for crown corporations is exactly what I'm going to follow up on.

    I want to talk about the letter from CBC to Mr. Himelfarb, Jim Judd, and Morris Rosenberg, asking for it to be exempt from the act. They say in their letter that CBC have had a code of conduct and

...therefore shares the Government's and the public's concerns for increased accountability and transparency and would be prepared, outside the confines of the proposed Act, to devise additional mechanisms that would share the goals and objectives of the Government's policy in this regard. Accordingly, the Corporation now intends to submit various measures to its Board of Directors, including measures to ensure a system for protection of persons who disclose wrongdoings specific to CBC...context. We believe that this policy will reinforce the mechanisms already in place within and without the Corporation to properly monitor its effectiveness.

    It looks as if they finally are prepared to get off their duff and really pay attention to this kind of situation when it looks like someone else is going to do it for them. That's good to see.

    But then they go on to say this incredible statement. They say, “Given the dangerous precedent set by the definitions contained in Bill C-25....” That's pretty strong language--“dangerous precedent”.

    I want you to comment about the inclusion or the non-inclusion of CBC into this regime.

    Dr. Edward Keyserlingk: As I said, I have not seen or heard of any arguments that would justify excluding the CBC. They are, after all, public sector employees. I think probably similar arguments could have been made by other crown corporations that also have fairly special kinds of work to do. I do think, though, that it ought to be put to them--and I belive this is the way it is--as a benefit, not as a burden.

    I would argue the same is true for the other organizations excluded from the umbrella of this bill--the RCMP, CSIS, the Armed Forces, and so forth. They all, it seems to me, ought to come under this bill for the same reason that I would argue the CBC should, which is that the kind of wrongdoing that will come forward typically will not be, in the case of the security agencies and the forces, about top secret information. It will be about gross mismanagement perhaps. It will be about wrongdoing that is typical of other organizations, not necessarily specific to the particular features of what they do.

    The commissioner will, of course, have top secret clearance, I presume. Nevertheless, the issues in the CBC or the Armed Forces or CSIS, in my view, typically won't be the kinds of things that will raise security issues or special issues of that kind.

    So to answer your question, I don't see any good reason for excluding them.

    I did see the letter in the paper, and I heard about it today--

¿  (0955)  

    Mr. Paul Forseth: The main point in the letter says the Broadcasting Act stipulates that officers and employees employed by the corporation are not officers or servants of Her Majesty. The other point is talking about how journalistic independence, freedom of expression, journalistic creative independence, and programming independence are somehow going to be affected by someone reporting wrongdoing.

    My hunch is that a lot of the wrongdoing is not going to be fraud, manipulation of money, or whatever. Often it's psychological harassment that goes on between individuals or, perhaps at a lower level, the employer-supervisor relationship, trying to drum someone out of your unit for petty interpersonal stuff.

    Material that might fall under it, in the act, when I look at wrongdoings, are issues that might talk about “specific danger to the life, health”—which could include mental health—“or safety of persons or to the environment”.

    Then in paragraph 8(e), it talks about “a serious breach of a code of conduct established under section 5 or 6”. Of course, Treasury Board has a code of conduct. I take it that is going to be reinforced by this bill.

    I would think the typical straight fraud or a real contravention of a hiring practice is the exception. The more common thing is normal management of the things a unit supervisor really doesn't see, the bullying, harassment, and stuff going on within a unit that can be covered over, that would perhaps come under health. We could also perhaps define that as psychological or mental health.

    Interestingly, we had a private member's bill from the Bloc before the House of Commons yesterday. It outlined an entire regime of reporting psychological harassment. I made the suggestion that perhaps the definition of wrongdoing could be expanded a little bit to include and more clearly identify that, because we don't need two separate regimes.

    I would like to come back again to the notion of why the CBC would be so touchy, for lack of a better word, about this whole matter, raise these kinds of arguments, and then, at the same time, admit they really haven't paid a lot of attention to this whole area. Now, because of the prospect of this bill, they're going to start moving on it.

    The Chair: I think Mr. Keyserlingk has the gist. Do you have any comment on the inclusion of the crown corporations?

    I think you have already opined on that.

    Dr. Edward Keyserlingk: Yes. My view, as I say, would be essentially that insofar as they are financially supported by the public, they qualify as crown corporations. Therefore, I think it's quite fitting that, on the one hand, they have access to this level of ability to complain about wrongdoing, but also the public has the right, through that kind of process, to know about the existence of wrongdoing, if there is such, within the CBC. It goes both ways.

    The Chair: I want to go to Ms. Chamberlain, please.

    Hon. Brenda Chamberlain (Guelph—Wellington, Lib.): Mr. Keyserlingk, I agree with you. It's a really big thing for people to come forth and have to say there's wrongdoing. It takes a lot of courage. On the other side of that, do you ever believe, though, that somebody may come forth and may not be accurate, factual, or truthful? Do you ever believe that can happen too?

    Dr. Edward Keyserlingk: I do believe it can happen, but interestingly, over more than two years, our experience is we have never seen anyone do it in bad faith. We have seen people come forward who have misunderstood something about the activity they're talking about. We have seen them come forward very credibly with credible information about what looks to us like it might be wrongdoing, in which case we've investigated and very often found it wasn't. Clearly, people can be factually wrong.

    Any good investigational process has to account for that possibility. We always tell people who come to us that we may not find wrongdoing, so please don't expect that because you believe there's wrongdoing, there is wrongdoing. A good investigative process has to be able to end up saying maybe there is nothing there. For us, the threshold criterion is, does it sound credible, credible enough to be investigated?

    Even if there was bad faith or the appearance of bad faith, which we haven't actually found because I think most people self-censure themselves, but it sounds credible, we'll take it on. Somebody really might not like the boss at all but still might have some very good evidence that the boss did something wrong. For us, in practice, the issue is not so much about bad faith as it is about the credibility of the allegation.

À  (1000)  

    Hon. Brenda Chamberlain: Further to when my colleagues and yourself were talking about the reporting system, the way it is phrased in the bill now, you can go to the executive or to the commissioner, and I'd ask you, in your opinion then, would you want the person to always go to the commissioner? You don't want any other avenue?

    Dr. Edward Keyserlingk: No. I'm glad you asked that. That isn't my view at all. My view is simply that people ought to be free to go wherever they want.

    Hon. Brenda Chamberlain: And you just think it's not clear enough in the bill that this could occur?

    Dr. Edward Keyserlingk: I think as soon as you put conditions in place, even if they're not very onerous, as soon as you use “only if” terminology, and as soon as you allow the commissioner to be the final judge of whether in fact those conditions were met, you're giving the impression that there is a preference for going internally.

    My point would be that I don't think the law should express any such preference at all. I think it should simply say, here are the avenues available; in some cases this will be the appropriate one, but that's your judgment, and in some cases it'll be this one, and that's your judgment as well. I think it ought to be entirely left that way, with no preference expressed. And the law clearly does express that preference, and it's quite open about it and the drafters have said that, but I take issue with doing that simply because I think that ought to be the choice of people.

    Hon. Brenda Chamberlain: Is that enough? All right.

    Thank you.

    The Chair: We're going to have to wrap this up.

    I have a very quick question for you. Clause 11 says a public servant may disclose a wrongdoing. It seems the discretion is the employee's as to whether or not they disclose a known wrongdoing. Would you suggest that maybe that should be changed to “shall report”, if they become aware?

    Dr. Edward Keyserlingk: It's a very interesting issue. My view presently is no. It should stay as “may”, because--

    The Chair: What would the public interest say?

    Dr. Edward Keyserlingk: What would the...?

    The Chair: The public interest, the people of Canada, say?

    Dr. Edward Keyserlingk: I think it would probably fall under the same category as whether people generally are obliged to come forward in the private sector as well. There are rules in certain kinds of activities where you have to. And even in the public sector, in the environmental sector, people are obliged to come forward, if they're inspectors and so forth, about wrongdoing, but that depends on the special responsibilities they have. I think that applies equally in the private sector. But the average public servant, just like the average citizen, does not, typically, have that obligation to come forward. I think we'd have to think really hard about whether we want to impose that on the public sector.

    The Chair: The point is going to be dealt with further, I'm sure, because if it's not mandatory, if you don't in fact enforce the loyalty to the employer, i.e. to the public, it means the Radwanski situation may never have been discovered because there would have been no requirement by any of those employees to say anything. And maybe that's the problem.

    Dr. Edward Keyserlingk: I don't quite agree with that, because I think in fact we have evidence that people do come forward if they have the right incentive and the right protections. They didn't in that instance, you're right, but they have in other instances. I think what it takes is a commitment, it takes courage, and it takes the belief that the system will go as far as it can to protect them if they do. And there are such incidents of people coming forward.

    I think what it says to me is that we have to put in place the best possible system we can, the most effective, the most protective, and then hope and expect--and I think we will have reason to--that when there is serious wrongdoing, people will--someone will--be inclined to come forward. But that's a long way from where we are now.

À  (1005)  

    The Chair: Mr. Keyserlingk, Mr. Bélanger, and Mr. Martel, thank you kindly for your input. We may want to have you back. I think there's going to be much more to discuss. Thank you kindly.

    We'll suspend to bring on our next panel.

À  (1006)  

---

À  (1009)  

    The Chair: We have resumed. Our next panel is the Working Group on the Disclosure of Wrongdoing. Welcome, Kenneth Kernaghan, who is the chair.

    Mr. Kernaghan, if you'd please introduce your colleagues, we'll welcome your opening statements, and then we'll get in as many questions as we can before we have to adjourn for a vote.

À  (1010)  

    Dr. Kenneth Kernaghan (Chair, Professor of Political Science and Management, Brock University, Working Group on the Disclosure of Wrongdoing): Thank you very much, Mr. Chairman. I want to introduce first Merdon Hosking, Denis Desautels, and Hélène Beauchemin.

    I hope, Mr. Chairman, with your permission, that my colleagues will be able to respond to questions along with me.

    I want to begin by thanking you for inviting me and my colleagues to testify today on this very important matter. I understand that you have received our formal report, that is, the report of our working group, which contains nine general principles and 29 specific recommendations for the kind of legislation we would like to see.

    I'm confident that I speak for my colleagues in the working group when I say that I am disappointed in Bill C-25. It is a weak and inadequate response to the widely accepted need to promote right-doing in government and to expose and remedy wrongdoing when it occurs.

    To encourage right-doing and to discourage wrongdoing the bill needs to be substantially revised. Dr. Keyserlingk has already indicated in his written submission several areas where the bill departs from the recommendations of the working group's report and he has made some persuasive arguments for revising the bill. I'll try to avoid repeating his arguments, but I do want to reinforce the central importance of some of them.

    Bill C-25 does reflect many of the working group's recommendations, including one of the major recommendations that the current policy-based approach to a disclosure regime on wrongdoing be replaced by a legislated regime. However, the bill does not reflect strongly enough, or it simply rejects, several of the working group's most important recommendations.

    It's essential to keep in mind the full terms of reference that were given to the working group. Our mandate was not simply to consider whether the disclosure of wrongdoing should be handled by a policy or by statute. We were also asked to examine the extent to which an emphasis on which public service values and ethics could serve as a positive means for supporting ethical government and for the disclosure of wrongdoing.

    Many of the submissions this committee will receive are likely to focus on the ways and means of reporting and punishing wrongdoing, so it is critical, I think, to effective and credible legislation that I emphasize today the working group's major recommendation, or one of its major recommendations, that mechanisms for the disclosure of wrongdoing should be set within a legislative framework that is wider than simple stand-alone legislation focused on whistle-blowing.

    All of the disclosure provisions recommended in our report should be placed within a positive framework of values and ethics rather than within a virtually exclusive focus on wrongdoing. We concluded that setting the disclosure of wrongdoing within this broader framework would send a clear and positive signal to Canadians that right-doing, based on core public service values, will be encouraged and that wrongdoing when it occurs will be disclosed and punished.

    I stand with Dr. Keyserlingk when he notes that Bill C-25 contains no framework of ethics and values, and that it contains no discernible reflection of the guiding principles and priorities that should infuse such a bill--values like honesty, transparency, and accountability. It is often forgotten that public servants value highly the regard in which they are held by politicians. It's important, therefore, to avoid giving the false impression through this legislation that wrongdoing is rampant in the public service. The fact is that the vast majority of public servants are honest, hard-working professionals.

    As a Canadian who has devoted much of his career to analyzing the ethical performance of public servants, I would be disappointed if Bill C-25 sent the wrong message to public servants and to Canadians in general by focusing exclusively on wrongdoing.

    Bill C-25 responds positively but too weakly to our recommendation for a values and ethics framework. The bill simply provides in the preamble that:

the Government of Canada commits to establishing a Charter of Values of Public Service setting out the values that should guide public servants in their work and professional conduct;

    As well, clause 5 of the bill requires that:

The Treasury Board must establish a code of conduct applicable to the public sector.

    I urge you to give serious consideration to enshrining a statement of public service values in the legislation itself. I urge you also to maintain the provision that is now in the bill's preamble and that calls for the development of a charter of public service values, and to link the charter formally to the values statement in the bill.

    Our working group concluded that by embedding a disclosure regime within an overall framework of public service values and ethics, the government and Parliament could establish what has been called a new moral contract between the elected and the non-elected arms of government, a contract that would set out the great principles of public service and that would provide a firm foundation for public service values and for ethical government.

    We concluded also that the significant advantage of a legislative approach based on public service values rather than the current policy-based approach is that it could commit ministers, members of Parliament, and public servants to support a professional public service dedicated to the public interest. This three-way commitment would send a positive message about government to Canadians, to their elected representatives, and to the public service itself. It would therefore, we think, provide a far superior context for dealing with wrongdoing, in part by making it clearer what constitutes right-doing.

    Clause 5 of the bill, which, as I mentioned, requires the Treasury Board to establish a code of conduct, could be strengthened by linking this code directly to the values statement in the bill and to the charter by requiring that all public sector organizations have a code that implements these values in these structures, processes, and systems of government.

    The framework of public service values and ethics should be followed in the bill by a disclosure regime that ensures that public servants will feel comfortable coming forward with good-faith disclosures of wrongdoing, and that irresponsible allegations of wrongdoing will be strongly discouraged.

À  (1015)  

    Dr. Keyserlingk has already identified several deficiencies in Bill C-25 that must be remedied if these objectives are to be achieved, and in my concluding remarks, Mr. Chairman, I want to reinforce the importance of changes to the bill in two major areas.

    First, it is clear that public servants and the general public will not have confidence in a disclosure regime that does not grant adequate powers to the office of the public service integrity commissioner. We recommended that the commissioner should be empowered to report to Parliament at any time he or she deems necessary. The bill provides that the commissioner can report to Parliament only through a minister. We recommended that the commissioner be provided with investigative powers similar to those provided to similar investigative bodies, such as the information and privacy commissioners. The bill does not grant those powers.

    As well, we strongly believe the commissioner, not the Public Service Staff Relations Board or the Canada Industrial Relations Board, should handle complaints about reprisals. And we believe stronger measures should be taken to protect the identity of those who are involved in the disclosure process.

    The second and final deficiency of the bill to which I want to draw attention is the inadequate provision that is made for the extremely important role in the disclosure process of senior officers--or “senior officials”, as they're sometimes known. The disclosure regime will not be effective or credible if the senior officer in each organization cannot play his or her role well. Our working group recommended that the senior officer function be staffed at a senior level, that senior officers be given adequate resources and support, and that the disclosure arrangements within each organization be at a standard comparable to those of the public service integrity commission.

    We recommended also that the duties of senior officers should be clearly and comprehensively set out in the legislation. Indeed, in our report we have suggested what duties, roles, and responsibilities of the senior officers should be contained in the legislation.

    Deputy ministers and chief executive officers are accountable for the quality of management in their organizations. We believe they should, therefore, have a reasonable opportunity, with the assistance of senior officers, to deal with public servants' concerns about wrongdoing before these concerns are taken outside the organization to the public service integrity commission. At the same time, however, we recognize, and certainly Bill C-25 recognizes, that public servants must have the option of going directly to the commission.

    I will stop there, Mr. Chairman. I certainly welcome your questions.

    The Chair: Thank you.

    Mr. Forseth, please.

    Mr. Paul Forseth: There's so much I'd like to say here. First, you talked about how in some respects the bill doesn't really have an ethical base, although it does refer to the Treasury Board policy. I think you're saying that you'd rather have all of what it refers to right in the bill itself, that it be actual legislation rather than something published on a website that says “Employees are committed to...”, and that the policy should be elevated to statute law. I think you used the word “embedding”, and talked about a “new moral contract” and “the great principles”.

    Perhaps beyond what the Treasury Board has already said, and what we assume are the guidelines or the policy that public servants must follow, what other perhaps great principles should we look to? Is the reference that the bill refers to, and the Treasury Board material, inadequate, and do we need to look to other great works of ethical description to beef that up? Or can we simply take what is Treasury Board policy and just plunk it into the bill and that would be sufficient?

À  (1020)  

    Dr. Kenneth Kernaghan: I don't think it would be a good idea to simply take what we have at the moment and plunk it into the legislation, because these are two quite different instruments. One is a policy and one of course is a statute.

    We would like to see in the bill some clear reference to the values and ethical standards relating to the relationships between public servants and politicians in general, but also, of course, those values that are particularly relevant to the issue of whistle-blowing, such as questions of transparency, openness, honesty, and so on. We think that would provide a very helpful foundation for the other parts of the bill.

    For example, in the Public Service Act in Australia, they have a statement of values, followed by a code of conduct, and when all of that emphasis on right-doing fails, it is followed by a disclosure regime whereby public servants can make known their concerns about wrongdoing.

    This a propitious time, I think, for Parliament to make a lasting and enduring contribution to Canadian public life by having a charter of public service values that sets out clearly the values and ethics on which the public service is based—and indeed on what public service is all about. This would deal, of course, in part with an issue that has constantly been before the public in recent months: the issue of ministerial responsibility and what the appropriate relationships should be between politicians and public servants, both ministers and parliamentarians, and public servants.

    Does that respond to your question?

    Mr. Paul Forseth: Well, in part it does. I'll leave those comments for now.

    You also talked about reporting to Parliament at any time. Could you describe more carefully what you envisage, or how that would be done? We know that when the Auditor General reports to Parliament, for instance, she comes to the public accounts committee, and often the department that she's criticizing sits beside her at the table and we get a back-and-forth story about the findings, and so on. Certainly, Mr. Desautels has been involved in that, so he knows what that process is all about.

    Perhaps you could describe what you would envision as truly independent reporting to Parliament, perhaps somewhat the same as the Auditor General does, and what committee would be involved.

    Dr. Kenneth Kernaghan: Yes, perhaps I could make a few opening remarks in response to that question and then ask Mr. Desautels to comment on his experience.

    In the working group's report, we argued that the integrity commissioner should be an independent agent of Parliament. We said that he or she should report either directly to Parliament or through a minister, but then we did go on, as you have just mentioned, to say that we believed that the integrity commissioner should be able to report directly to Parliament at any time, along the lines of what the Auditor General does now.

    Many of the considerations we'll be looking at in this bill are—as I think Minister Coderre pointed out the other day—a matter of balance. This is an issue that arises when everyone is talking about the most appropriate kind of legislation on disclosure. Where should the balance be struck?

    In thinking about this more recently, whenever I am examining a tension between two considerations as to which way one would go with respect to this bill, I asked myself, “What answer would you give if you wanted public servants to be in the best possible position, to feel the most comfortable, in terms of coming forward with public interest disclosures?” It's that consideration that tends to tip me towards making the office of the public sector integrity commissioner, or wanting to see it, more independent, having more investigative powers and so on than some people perhaps would like to see.

    With that, I'll turn things over to Mr. Desautels.

À  (1025)  

    Mr. L. Denis Desautels (Executive Director, Centre on Governance, and Executive-in-Residence, Faculty of Administration, University of Ottawa, As Individual): In addition to what Mr. Kernaghan just mentioned, I think it would be imperative that the commissioner be able to report directly to Parliament through some kind of regular report. I think we talked a bit about that in our own report. If it were to be an annual report, it could talk about not just the activities but also about some of the problems found and some of the broader conclusions that can be drawn from the work of the commissioner.

    It would be important to develop a strong relationship with a particular committee. I don't think we can suggest which committee that should be. Presumably, it would be this one, but committees do change from one Parliament to another, obviously. My own experience in dealing with the public accounts committee as Auditor General was that it was extremely important to develop that kind of relationship with a particular committee of the House.

    Obviously, on top of that, it's very important to have the ability to report to the House at any time when there's a matter of a certain importance and urgency that requires reporting to the House in the judgment of the office holder. My own experience as Auditor General makes me reinforce the need for that strong link to Parliament.

    The Chair: Thank you.

    Madame Guay.

[Translation]

    Ms. Monique Guay: Thank you, Mr. chairman. Good morning, ladies and gentlemen.

    We fear that this bill will be passed hastily, that it will have no teeth and will be largely inefficient. Your contribution will certainly help us to make the amendments that I find are very much needed. For instance, everyone agrees that the commissioner should report directly to the House of Commons. There seems to be unanimity on that aspect. He also should be able to rapidly table a report in case of an emergency. He should have that power, but it is not included in this bill. We should then amend the bill accordingly.

    A little earlier, you talked about senior officers. You expressed some concerns about their training. Could you elaborate a little about this?

    Some previous witnesses told us they feared that whistleblowers would be forced to meet with the senior officer before they go to the commissioner. We should let people decide themselves if they want to report wrongdoings to the senior officer or directly to the commissioner if they prefer that option for any reason.

    I am listening to you.

[English]

    Dr. Kenneth Kernaghan: With your permission, I'll respond in English.

    As I mentioned in my opening remarks, we do feel that deputy ministers, since they're accountable for the operation, the management of their department, do have to be in a position to try to resolve issues internally, to exhaust internal mechanisms, as it's often described, before an allegation is taken outside the organization.

    I agree with Dr. Keyserlingk and others who argue that the current wording in the bill of the clause dealing with senior officers is problematic in two respects. First, the use of the term “only if” is unfortunate. One could, for example, simply outline two major options that could be taken by a public servant who wishes to make an allegation of wrongdoing.

    The other respect about which I have concern in the bill is that the role of the senior officer is not spelled out sufficiently. It's not made clear how important a position this is in the continuum that runs from a situation where a public servant says, “I have a concern”, to the end of process where that concern is remedied, perhaps by a decision by the public service integrity officer to recommend to the deputy minister that some action be taken.

    We want to make sure that not only do public servants feel free to go outside, to the public service integrity officer, if they feel uncomfortable about making the allegation inside, but we also want to ensure that relatively minor allegations of wrongdoing or wrongdoings that are of an interpersonal nature, having to do with employment kinds of issues and so on, are not taken directly to the commissioner.

    We really don't want to have a situation where a public servant has a concern and says, “Is this a genuine concern or not? To whom can I speak about this?” And you say, “Well, one option is the senior officer; another option is the public service integrity officer”. At that point the public servant may say, “Well, this is perhaps a relatively minor issue. I'll examine it through the senior officer, and this person will be well trained, well versed, independent in giving me advice on this, and if that's not satisfactory, then of course there's the option of going outside.”

    But we do think this extremely important role of the senior officer should be elaborated on in the legislation.

À  (1030)  

[Translation]

    Ms. Monique Guay: Go ahead Mr. Desautels.

    Mr. L. Denis Desautels: It gives the perception that people must follow a certain process. I think it is quite easy to correct. It is a relatively minor weakness that might be easily corrected. However, I believe that the bill should continue to encourage the use of internal mechanisms. I think it is an important feature, because it ensures a better balance, which should be our goal. We must try to solve problems as fast as possible before they become more serious. My experience tells me that many problems are due to a lack of information and understanding. The faster you deal with that kind of situation the easier it is to avoid more serious difficulties.

    I wish to come back to Mrs. Guay's first remark when she said that this bill had been hastily written. I shall not necessarily use the same words, but I should mention that adding into the bill a code of values as proposed by Mr. Kernaghan and that kind of things would make it more complicated. It would require more time and effort. We recognize that it would be more complicated, but we maintain that it is worth the effort.

    Ms. Monique Guay: We agree that it is worth the effort. And we do not want this bill to pass too rapidly because we are preparing several amendments. We are listening to you and several other witnesses are going to appear. We shall hear some union officials and maybe some whistleblowers who might have information to give us. We must make sure we have good legislation because we will have to live many years with it before it can be amended. So we agree on that.

    The issue of reprisal was also mentioned earlier. I wish to have your opinion on that subject. Do you think that the provisions concerning reprisal are satisfactory or do you wish to see them improved?

À  (1035)  

[English]

    Dr. Kenneth Kernaghan: Yes, I think they could be improved.

    As I mentioned in my opening remarks, I do not feel that the reprisal process should involve the Public Service Staff Relations Board or the Canada Industrial Relations Board. I think it's critical for both the fact and the appearance of the independence of the commissioner and for effective working of the process that public servants know when they go to the commissioner in the first place that his or her office is in fact going to be the one that will look after any reprisal that might be taken at the end of this process.

    It seems to me that there are a number of arguments, strong arguments, for having the integrity commissioner handle the reprisal process, rather than farming this out and making things more complicated by having other organizations involved, other organizations that are not used to handling the kinds of issues with respect to public interest, wrongdoing, that would come to the commissioner.

    A second point there is that I agree that something in the way of fines would in fact be worth looking into with respect to people who take reprisals against public servants.

    The Chair: Thank you.

    Mr. Martin.

    Mr. Pat Martin: Thank you, Mr. Kernaghan.

    What strikes me is the degree of consensus amongst authorities on this subject--you, Mr. Desautels, Mr. Keyserlingk, and I have a paper here from Professor Thomas from the University of Manitoba, who has done recent good research on this.

    On the three or four key, fundamental points, there seems to be quite a good nationwide consensus, yet none of these seem to have found their way into the bill--the key criticisms you started with.

    Just to back up a bit, I was part of the committee that did the Radwanski investigation. We did a survey of the staff at the privacy commissioner's office, and 65% of the 120-some employees had information about serious wrongdoing in that office. When one finally came forward to this committee, it was so sad--to me, it was sad--that he or she felt that it was necessary to bring their own legal counsel with them, out of their own pocket. For an honest, well-meaning civil servant to come and tell the truth to a parliamentary committee, they had to bring a lawyer with them because they didn't feel protected.

    I'm only saying this because there was such a wave of hope and optimism that went through the public service in the aftermath of that very high-profile scandal, that finally Parliament is going to be seized of this and finally they're going to look out for our interests; they're going to write a bill to protect whistle-blowers.

    It's our opinion at this stage that this isn't a bill to protect whistle-blowers; it's a bill to keep disclosure of wrongdoing in-house. If anything, it might be counterproductive, because already the word is trickling out through the public service, “Go to ground”. Information is going underground as we speak, because the message is out there. People aren't dumb. The tone and content of this bill has sent the message to the public service that it's not safe to come forward. If anything, they may be worse off than they were prior to the introduction of this bill.

    I know that's a lengthy introduction to set the tone for the questions I have, but would you agree that this in fact, as it currently stands, is counterproductive in that it would be safer for a civil servant to go to the media with anonymous tips than to go through the current chain of command as contemplated by this legislation?

    Dr. Kenneth Kernaghan: Those are the kinds of questions I often ask my students.

    It might be safer for public servants to provide anonymous tips to the media, but that strikes me as unethical and unprofessional behaviour.

À  (1040)  

    Mr. Pat Martin: Do they have any choice?

    Dr. Kenneth Kernaghan: We need to provide them with a choice.

    Mr. Pat Martin: Does this bill do that?

    Dr. Kenneth Kernaghan: I'm not sure I would use the term “counterproductive”. I think you know from my comments so far that I am very disappointed in the content of the bill as it stands.

    We have to be realistic in looking at comparative experience. For example, in other jurisdictions there has not been a great flood of allegations of public interest wrongdoing as a result of the adoption of legislation. One can speculate on why this is so, and I won't try to give a single answer to that. But I think it suggests that if you are going to devise a regime for the disclosure of wrongdoing, you have to make sure it meets the needs, as Dr. Keyserlingk said, of those it is supposed to serve--the members of the public, members of the public service, and parliamentarians.

    This bill doesn't go far enough in providing the level of comfort that public servants need to come forward. Many of you have already commented that it's very difficult for public servants to come forward. So again, when I'm thinking about the tensions between various points of view on which way we should go, we need to consider what would make public servants have the greatest confidence, and what would change the culture in the public service, in the long run, so that public servants would feel more comfortable coming forward with good-faith allegations. That is extremely important.

    I assume I speak for my colleagues, but I'll let Hélène speak for herself.

    Ms. Hélène Beauchemin (President of HKBP Inc.; Working Group on the Disclosure of Wrongdoing): Maybe I can add another perspective, from someone who has been a manager and has travelled across the country, north, south, east and west. If I'm right, 70% of our public servants are outside of Ottawa.

    Mr. Pat Martin: It's fairly decentralized, but it's not 70%.

    Ms. Hélène Beauchemin: Whatever it is, the percentage is high, and a lot of the public servants who are outside of Ottawa are on the front lines providing direct service to Canadians.

    Professor Kernaghan commented on the importance of also changing the culture. As a committee, we were looking at how to address the needs of people to safely report something. At the same time, how do we ensure we have a public service where it is safe to talk about issues, problems, and questions that arise? We need to be able to balance both if we're going to have the kind of public service we have....

    From my relationship with public servants outside of Ottawa, for people who live in Thunder Bay, Kamloops, or wherever they are, reporting to someone in Ottawa, whether it's their own department, the commissioner, or Parliament, is already enormous. In many cases, where do they even start?

    My colleagues have talked about balance in allowing an internal disclosure process that has the same safety measures, and that's certainly one issue. If you're going to have an internal disclosure mechanism it has to ensure the same mechanisms, safety of protection against reprisal, and rigour for the manager, a colleague who is alleged to be the wrongdoer, or whomever. As this bill is now worded, it doesn't give that impression. So if you don't give that impression you may then have the super power, if I can use that example, but it will not be seen as being accessible by many people.

    Mr. Pat Martin: I think that's already the impression, from the feedback I get from public servants now. Through their unions and their network--they don't call them organized labour for nothing--they're organized and have a communications network. The communication is that this is not going to make it safe, stick to plan A, do your work, and keep your mouth shut, essentially.

    I know I'm out of time.

    The Chair: Mr. Shepherd.

    Mr. Alex Shepherd (Durham, Lib.): Thank you.

    As an opening general question, I know you all agree that we should proceed with this, but you talked about legislating or incorporating within the legislation a code of conduct. I've always been mystified around this place if we as legislators think we can legislate everything. Can you ultimately legislate ethical behaviour? Don't you either have it or you don't?

À  (1045)  

    Dr. Kenneth Kernaghan: You raise a very large, general question.

    Our view is that you can legislate values in the sense that you can set out the values for which the public service stands in terms of many of the values with which you would be familiar--integrity, transparency, accountability, and so on.

    We have in the current code of the public service conduct divided these values into a number of categories, including democratic values, values of impartiality, and the rule of law, which we also would want to set out in the bill.

    It's not necessary, of course, in order to provide a foundation of values and ethics in this bill, Bill C-25, to have there the complete charter about the relationships between politicians and public servants, and so on. I think the important thing is to set that out separately, as I understand it is already being drafted, and to do this in a way that will be directly linked to the opening section of the bill, which would set out these public service values.

    Perhaps I could stop there and ask you....

    Mr. Alex Shepherd: That's fine.

    I want to ask the reverse question. I asked this of the minister the other day, and that was, what was the argument against reporting to Parliament?

    I'm assuming part of the argument, although we don't say so in so many words, is that, after all, this is the executive branch of government. There's ministerial responsibility that goes within this. We feel that reporting this to Parliament creates another venue, another watchdog, if you will, of the executive branch of government, that it possibly interferes with our ability to carry out our programs, and so forth.

    How would you answer that issue?

    Dr. Kenneth Kernaghan: Well, certainly the public appetite is, I think, for direct accountability of the public service integrity commissioner to Parliament.

    I have heard the argument that there is a tension here between that argument about the importance of public accountability and transparency on the one hand and constitutional proprieties on the other. For example, one could argue that the role of the public service integrity commissioner has an executive dimension to it, in the sense that the commissioner is giving advice or making recommendations to the deputy minister of the department, and therefore it is in some ways quite close to the executive branch of government. The other argument, of course, is that this is largely, and should be largely, a matter of accountability to Parliament, that it's a legislative matter.

    It can be explained fairly well, I think, by comparing the role of the Public Service Commission to the role of the Auditor General. The Public Service Commission has executive functions, and therefore traditionally has reported through a minister, whereas the Auditor General reports directly to Parliament.

    Now, there is that tension, I agree, but I would come back to my original argument, that the tipping point for me comes when I ask the question, what would be the most credible system in the eyes of parliamentarians and public servants and members of the public? I come down on the side of direct accountability to Parliament.

    Mr. Alex Shepherd: You talked about one of the shortcomings of the bill. My background is financial, and I'm concerned about the definition of wrongdoing being a misuse of public funds or a public asset. I was wondering if that could be expanded to some extent. I'm looking for efficiencies in government. We mentioned the Radwanski case. Even though most of us thought what he was doing was wrong, it was in fact not a misuse of funds, if you took the strict definition of the Treasury Board guidelines, because he was exempted from some of these things, etc. Could we expand some of these definitions, not just be specific to wrongdoing per se, but look for more efficient practices in government and places where we're wasting money? I think Canadians are keen about some of those areas as well.

À  (1050)  

    Dr. Kenneth Kernaghan: I would have to think this through more carefully. But I would be a bit concerned, on hearing the initial question, about the office of the public service integrity commissioner becoming a place where concerns would come about a whole range of things that are not really public interest wrongdoings. We already have a large number of mechanisms within the government, as you know, in order to hold people accountable, including, of course, the Office of the Auditor General. There are the Treasury Board mechanisms and other mechanisms as well. So I would think that matters of efficiency, consideration of unhappiness about policy decisions, and so on belong somewhere else and that we need to focus on this office, if it's going to be effective and credible, having the responsibility for the public interest wrongdoings.

    The Chair: This will be your last question.

    Mr. Alex Shepherd: I'd like to go back to one of my earlier questions on the code of conduct. What incentives are there for people to come forward and report wrongdoing? All I see is that it's a big hassle. We were told the other day that their professionalism will lead them to do that, although there was some debate even within the bureaucracy on whether that was in fact the case. In other words, should the bill include some kind of incentive for people to come forward with their concerns?

    Dr. Kenneth Kernaghan: As you know, under the system in the United States, it is possible for public servants to blow the whistle and as a result to become relatively rich by being rewarded for bringing forward allegations about wrongdoing that end up saving the government substantial amounts of money. We talked about this during our discussions in the working group, and we decided that this is an unworthy incentive to provide public servants. We would expect public servants, as you say, to act in a professional and ethical manner by bringing forward these allegations of wrongdoing in the public interest.

    The Chair: Thank you.

    Mr. Benoit.

    Mr. Leon Benoit: Thank you, Mr. Chair.

    This bill is important in itself, but I think it's also the first really important test as to how effective this committee can be. If we can't get appropriate amendments to this bill, then I think this committee will be thrown into the dustbin with a lot of others.

    Second, it's a test for this process of having legislation come to committee before second reading. We've done this before, and it hasn't proven to be particularly effective in the past. At least in my judgment it hasn't been. We'll see if it can be.

    Third, it's a test for the government as to how accountable it really wants to be.

    With regard to this legislation, whether these amendments are accepted will be critical.

    What amendments would you recommend to make this bill acceptable to you? Can it be amended to make it a very effective piece of legislation?

    Dr. Kenneth Kernaghan: Yes, it certainly can be amended to make it a very effective piece of legislation. There are quite a number of recommendations I would make in order to change the existing bill to provide for that. Let me be as brief as I can.

    Mr. Leon Benoit: Give us the top three if you can.

    Dr. Kenneth Kernaghan: The top three? I would have the public service integrity commissioner report directly to Parliament, and I would both increase and make clearer the investigative powers of the integrity commissioner. We haven't talked a great deal about that, but the act does in fact make provision indirectly for a kind of investigative power in the sense that public servants are obligated to come forward with allegations.

    I think one could do both; that is, one could in fact provide as a back-up, even if it's only symbolic and they're not likely to be used, investigative powers in the sense of giving the integrity commissioner the authority to compel witnesses to testify--I mean subpoena powers and so on.

    The third would be a point I made in my opening remarks, that we need to find this balance between right-doing and wrongdoing in the bill and that we need to put much more emphasis on right-doing in terms of setting out the important, central, core public service values. That is the way, I think, to change over time the view of whistle-blowing or disclosure held by many public servants that it's tattling, squealing, and so on. We want to make that, over time, a responsibility public servants will feel comfortable fulfilling. So that would be my third, I believe.

À  (1055)  

    Mr. Leon Benoit: What would we have to do, though, to this legislation? What would be required to actually have that in this legislation in a way that's effective?

    Dr. Kenneth Kernaghan: You would begin the bill with a statement of the values for which the public service stands. You would then spell out and expand on those investigative powers more fully in the sections on those powers and similarly in the other parts of the bill.

    I haven't elaborated on this in my opening remarks myself, but I should refer you to Dr. Keyserlingk's formal written submission. There he goes through each of these and comments on how the bill could be improved in these various sections in order to make the office a more credible and effective one.

    Mr. Leon Benoit: And you agree with all of those proposals that were put forward?

    Dr. Kenneth Kernaghan: It has been a while since I read them carefully, but certainly, for the most part I agree with his recommendations, yes.

    Mr. Leon Benoit: Thank you.

    The Chair: Thank you, Mr. Benoit.

    Very quickly, Mr. Kernaghan, with all of the work that has been done...and I know your study group has really lent its ear to virtually everyone who's had an opinion on the whole whistle-blower issue. You mentioned one word that triggered a whole series of questions in my own mind about the culture of the public service, the public sector.

    To my mind, it would appear that a public servant has absolutely nothing to gain by blowing the whistle on someone, but they do have a duty of loyalty. So why should I go and risk being identified and maybe be subject to a reprisal? Everybody can understand the human nature involved.

    Mr. Martin said earlier that about 60% of the employees in the privacy office were aware of serious wrongdoing but nobody came forward. Why is it that within the culture of the public service someone couldn't simply have taken a blank piece of paper and written, “To whom it may concern”? They could have said, I am an employee of the privacy office; I am aware of serious wrongdoing involving over- or misspending; there's a reign of terror and of all these things; this is terrible; I can't disclose who I am because maybe I'm going to be subject to reprisals, and I can't risk that because of my family; please, please do something. Then they'd have taken photocopies and sent one to the official opposition, one to the Auditor General, another one to the Prime Minister, others to all the labour unions, and others to absolutely everybody.

    Now, once something like that had gotten out, was there no one in this environment we are in, in the public service and government, etc., who would have picked up this anonymous whistle-blower's letter and said, somebody's calling out for help; let's do something? Why wouldn't it work?

    Dr. Kenneth Kernaghan: We are hoping that if the recommendations of our working group report are included in legislation, public servants will feel more comfortable coming forward than they ever have in the past. It's difficult of course for us to say how the employees to whom you've made reference would have acted if the kind of bill we have in mind had been in effect, but we certainly believe they would have been much more likely to come forward.

Á  (1100)  

    The Chair: Mr. Desautels.

    Mr. L. Denis Desautels: I would just like to add, Mr. Chairman, that it's a lot more effective if the person in authority who has a duty to receive such complaints can actually meet with and talk to a person with the protection of confidentiality we're all seeking here. Receiving completely anonymous information can set off certain things, but it's not as good, let's say, as having a chance--

    The Chair: No, it's not as good, but it's not risky either.

    Mr. L. Denis Desautels: That's the whole challenge here. If we can provide proper avenues for people who do have a genuine problem where they can discuss matters with somebody who will protect their identity, we can take the proper action a lot more easily than if it's totally anonymous.

    The Chair: We'll certainly be dealing with this a little longer.

    Is there a final comment?

    Dr. Kenneth Kernaghan: I just have one final comment on this point, Mr. Chairman. I think the reason we want to have carefully laid-out legislation on this, with careful steps and conditions and so on in the legislation, is so people won't feel they have to go to the media or send anonymous notes and so on. We should avoid a situation where people feel they can send anonymous notes, some of which might in fact be quite irresponsible in the allegations that are made.

    One of the elements I don't think we've talked enough about is the position of those against whom allegations are made and the necessity of making sure those people are protected. This is extraordinarily important, and I would urge you to make sure in the bill that there are good disciplinary measures for anybody who resorts to vexatious, frivolous, irresponsible allegations.

    The Chair: What is frivolous is I think for others to decide, not for employees who judge themselves. Richard Nixon came down because of a deep throat and George Radwanski came down because of a deep throat. There was basically a confidential communication to someone and the matter was dealt with.

    Notwithstanding that we're in the process here, there is this aspect of duty of loyalty, and there is obviously the overarching principle of the best interests of the public. Public servants have to be assured it is the right thing to do to take whatever steps they can, without being put under some duress or having concern, to bring their concerns to whomever, where it's always the right thing to do to report a serious wrongdoing.

    Maybe we shouldn't just wait for legislation to go through this whole process. People should understand that there are good people, not only in the public service but also in Parliament, who are very anxious to ensure that if there is a serious breach, we have the tools, either through the Auditor General's office or through other mechanisms, to carefully look into matters without jeopardizing the identity of people. We managed to do that in the Radwanski case.

    The public accounts committee has taken a different approach and has opened it up to a whole bunch of things right in front of the public, notwithstanding that all those witnesses have the protection of Parliament. It shows two very different scenarios. The approach we took on Radwanski was much preferable because it did respect the concerns of individuals, and once one came forward and it was shown it could be handled in an appropriate fashion without risk, others did come forward with the rest of the information necessary for the right things to happen.

    No matter whether we have this legislation in place today or in a couple of months from now, there is always an opportunity for wrongdoing to be disclosed if people will just have the confidence that there are good people out there who will help in the resolution of those problems.

    We are going to have a great time with it, I'm sure.

    Colleagues, thank you kindly.

    There's one final matter. A question that had been unanswered was referred to us by the House, question 72. I'm advised that an answer was tabled in the House yesterday. It has been responded to and it is now discharged, so we'll just minute that.

    Thank you to Mr. Kernaghan and your colleagues.

    We are adjourned.