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37th PARLIAMENT, 3rd SESSION

Standing Committee on Government Operations and Estimates

EVIDENCE

CONTENTS

Tuesday, April 27, 2004

0905

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

Hon. Denis Coderre (President of the Queen's Privy Council for Canada)

0910

0915

0920

The Chair

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

Hon. Denis Coderre

Mr. Paul Forseth

Hon. Denis Coderre

0925

Mr. Paul Forseth

Hon. Denis Coderre

The Chair

Mrs. Monique Guay (Laurentides, BQ)

0930

Hon. Denis Coderre

Mrs. Monique Guay

Hon. Denis Coderre

0935

The Chair

Mr. Pat Martin (Winnipeg Centre, NDP)

0940

Hon. Denis Coderre

Mr. Pat Martin

Hon. Denis Coderre

Mr. Pat Martin

The Chair

Hon. Denis Coderre

Mr. Pat Martin

Hon. Denis Coderre

0945

The Chair

Mr. Alex Shepherd (Durham, Lib.)

Hon. Denis Coderre

Mr. Alex Shepherd

Hon. Denis Coderre

Mr. Alex Shepherd

Hon. Denis Coderre

Mr. Alex Shepherd

0950

Hon. Denis Coderre

The Chair

Mrs. Lynne Yelich (Blackstrap, CPC)

Hon. Denis Coderre

Mrs. Lynne Yelich

Hon. Denis Coderre

Mrs. Lynne Yelich

The Chair

Mrs. Lynne Yelich

Hon. Denis Coderre

Mrs. Lynne Yelich

The Chair

Mr. Roger Gaudet (Berthier—Montcalm, BQ)

Ms. Michelle Chartrand (President, Public Service Human Resources Management Agency of Canada)

0955

Mr. Roger Gaudet

Ms. Michelle Chartrand

Mr. Roger Gaudet

Ms. Michelle Chartrand

Mr. Roger Gaudet

Hon. Denis Coderre

Mr. Roger Gaudet

Ms. Michelle Chartrand

Mr. Roger Gaudet

Ms. Michelle Chartrand

Mr. Roger Gaudet

Ms. Michelle Chartrand

Mr. Roger Gaudet

Ms. Michelle Chartrand

Mr. Roger Gaudet

The Chair

Mr. Roger Gaudet

Mrs. Monique Guay

Mr. Roger Gaudet

Ms. Michelle Chartrand

Mr. Roger Gaudet

Ms. Michelle Chartrand

Mr. Roger Gaudet

Hon. Denis Coderre

Mr. Roger Gaudet

Hon. Denis Coderre

Ms. Michelle Chartrand

Hon. Denis Coderre

Mr. Roger Gaudet

The Chair

Mr. Pat Martin

1000

Hon. Denis Coderre

Mr. Pat Martin

Hon. Denis Coderre

Mr. Pat Martin

Hon. Denis Coderre

Mr. Pat Martin

Hon. Denis Coderre

Mr. Pat Martin

Hon. Denis Coderre

Mr. Pat Martin

Hon. Denis Coderre

1005

The Chair

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

Mr. Pat Martin

The Chair

Hon. Brenda Chamberlain

Mr. Ralph Heintzman (Vice-President, Values and Ethics Division, Public Service Human Resources Management Agency of Canada)

Hon. Brenda Chamberlain

Hon. Denis Coderre

Hon. Brenda Chamberlain

Hon. Denis Coderre

Hon. Brenda Chamberlain

Hon. Denis Coderre

Hon. Brenda Chamberlain

1010

The Chair

Mr. Paul Forseth

Mr. Ralph Heintzman

Mr. Paul Forseth

Mr. Ralph Heintzman

Mr. Paul Forseth

Hon. Denis Coderre

Mr. Paul Forseth

The Chair

Hon. Denis Coderre

The Chair

Hon. Denis Coderre

1015

The Chair

Hon. Denis Coderre

The Chair

Hon. Denis Coderre

The Chair

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

The Chair

Mrs. Monique Guay

Mr. Ralph Heintzman

1020

Mrs. Monique Guay

Mr. Ralph Heintzman

Mrs. Monique Guay

Mr. Ralph Heintzman

Mrs. Monique Guay

M. Ralph Heintzman

Mrs. Monique Guay

Ms. Michelle Chartrand

1025

Mrs. Monique Guay

Ms. Michelle Chartrand

The Chair

Mr. Pat Martin

Ms. Michelle Chartrand

Mr. Pat Martin

Mr. Ralph Heintzman

Mr. Pat Martin

Mr. Ralph Heintzman

Mr. Pat Martin

Ms. Michelle Chartrand

Mr. Pat Martin

Ms. Michelle Chartrand

Mr. Pat Martin

Ms. Michelle Chartrand

Mr. Pat Martin

Mr. Ralph Heintzman

The Chair

Mr. Ralph Heintzman

1030

The Chair

Mr. Alex Shepherd

Mr. Ralph Heintzman

Mr. Alex Shepherd

Ms. Michelle Chartrand

Mr. Ralph Heintzman

Mr. Alex Shepherd

1035

Ms. Michelle Chartrand

Mr. Alex Shepherd

Mr. Ralph Heintzman

Mr. Alex Shepherd

Mr. Ralph Heintzman

Mr. Alex Shepherd

Ms. Michelle Chartrand

The Chair

Mr. Paul Forseth

1040

Mr. Ralph Heintzman

Mr. Paul Forseth

Mr. Ralph Heintzman

Mr. Paul Forseth

1045

Ms. Michelle Chartrand

Mr. Paul Forseth

Mr. Ralph Heintzman

Mr. Roger Gaudet

Mr. Ralph Heintzman

Mr. Roger Gaudet

Mr. Ralph Heintzman

Ms. Michelle Chartrand

Mr. Roger Gaudet

Mr. Ralph Heintzman

1050

Mr. Roger Gaudet

Ms. Michelle Chartrand

Mr. Roger Gaudet

Ms. Michelle Chartrand

Mr. Roger Gaudet

Ms. Michelle Chartrand

Mr. Roger Gaudet

Ms. Michelle Chartrand

Mr. Roger Gaudet

Ms. Michelle Chartrand

Mr. Roger Gaudet

Ms. Michelle Chartrand

Mr. Roger Gaudet

Ms. Michelle Chartrand

Mr. Roger Gaudet

The Chair

Mrs. Lynne Yelich

Mr. Ralph Heintzman

1055

Ms. Michelle Chartrand

Mr. Paul Forseth

Ms. Michelle Chartrand

Mr. Paul Forseth

The Chair

Mr. Ralph Heintzman

Mr. Paul Forseth

Mr. Ralph Heintzman

The Chair

Mr. Ralph Heintzman

The Chair

1100

Mr. Ralph Heintzman

The Chair

Mr. Ralph Heintzman

The Chair

Mr. Ralph Heintzman

The Chair

Mr. Ralph Heintzman

The Chair

Mr. Ralph Heintzman

The Chair

Mr. Paul Forseth

1105

Mr. Ralph Heintzman

Mr. Paul Forseth

Mr. Ralph Heintzman

The Chair

CANADA

Standing Committee on Government Operations and Estimates

NUMBER 010

3rd SESSION

37th PARLIAMENT

EVIDENCE

Tuesday, April 27, 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 considering Bill C-25, an act to establish a procedure for the disclosure of wrongdoings in the public sector, including the protection of persons who disclose the wrongdoings.

This morning we're pleased to have the Honourable Denis Coderre, President of the Queen's Privy Council for Canada.

Welcome, Minister. I want you to know at the beginning of the session that the steering committee of the Standing Committee on Government Operations and Estimates chose the whistle-blowing issue as the principal issue for us to deal with. We're delighted that legislation has come forward and that we can now proceed with this bill, which was referred to us after first reading. It's an important responsibility for this committee, particularly as we will be charged with an opportunity to deal with the bill after first reading, where the House has not had an opportunity to deal with approval on principal. It gives us an opportunity to shape this. We look forward to that process.

We welcome you. I would ask you to please introduce those you have brought with you to the table.

We look forward to your comments.

[Translation]

Hon. Denis Coderre (President of the Queen's Privy Council for Canada): Thank you, Mr. Chairman.

It is a pleasure to appear before this committee to discuss the Public Servants Disclosure Protection Act. I am joined this morning by Michelle Chartrand, President of the Public Service Human Resources Management Agency of Canada; Mr. Ralph Heintzman, Vice-President, Public Service Values and Ethics of the Public Service Human Resources Management Agency of Canada; and by Ms. Mylène Bouzigon, Senior General Counsel, from the Department of Justice.

Mr. Chairman, as parliamentarians and as Canadians, we all have an interest in seeing that the Government of Canada continues to serve the public in accordance with the highest ethical standards. And I want to confirm again that the vast majority of public servants do serve Canadians with honour, integrity and excellence.

The proposed Public Servants Disclosure Act is designed to increase confidence of employees in disclosure mechanisms by providing protection to those who come forward with information about wrongdoing. The Bill is also designed to ensure that alleged wrongdoings are investigated. And of course, the ultimate goal is to correct wrongdoing as soon as it is discovered.

In creating the Bill, we were faced with the challenge of achieving an appropriate balance between public servants' duty of loyalty and their right to free speech. On the one hand, we need to support public servants to report real wrongdoing so we can strengthen the ability of public organizations to self-correct—that is, address and correct problems as they arise.

But we need to do this in a way that is also fair to the people against whom an allegation is made and fair to the organizations in which they both work.

[English]

Even if it were possible to provide reprisal protection to public servants who make any kind of public allegation of wrongdoing, as some commentators have suggested, it would not be in the public interest to do so. It would not be fair to the individuals or to the organizations involved, whose reputations could be unjustly damaged by accusations found to be untrue, and it would not be consistent with public servants' duty of loyalty, as defined in the courts.

Therefore, public allegation of wrongdoing should only be made and be protected in the limited circumstances that have already been defined by the courts, which are reflected in this bill. That is why an internal disclosure process that protects confidentiality and ensures due process is the best avenue for disclosure protection in the public service.

In developing this legislation, Canada has benefited from the experience of other countries, including Australia, the United States, New Zealand, and the United Kingdom. This internal approach—with appropriate safeguards—is consistent with other parliamentary democracies that have developed disclosure protection regimes.

There is another important balance that I would ask you to keep in mind as part of the design of this proposed disclosure regime. There is a need for disclosure mechanisms to have the independence and power required to investigate and resolve wrongdoing effectively. At the same time, we need to ensure that appropriate safeguards are in place and that there is no duplication with existing mechanisms and accountabilities. Balancing the required powers with existing responsibilities, and with appropriate safeguards, is a difficult challenge, but it was our goal in preparing this bill, and a goal that I believe the committee should take seriously in its consideration of this proposed legislation.

¿ (0910)

[Translation]

I will briefly summarize the key elements of the Bill. The proposed Public Servants Disclosure Protection Act contains the following provisions. It requires all chief executives to establish an internal disclosure mechanism including the appointment of a senior officer to take disclosures and investigate possible wrongdoings. It defines wrongdoing and sets out how an employee can make a disclosure. It defines reprisal and provides substantial protections in law from reprisal for good faith disclosure.

To address the need for an arm's length, independent body, the Bill establishes an Office of the Public Service Integrity Commissioner. I want to emphasize that the Commissioner would be independent.

[English]

That commissioner will be independent.

[Translation]

He or she would report to Parliament through a minister, just like many other government agencies that operate successfully at arm's length, and are seen to do so. Like the Commissioner of the Public Service Commission, the Integrity Commissioner would be an independent executive agent, assisting chief executives and public servants to identify and correct wrongdoing. But he or she would be selected by Parliament, would report to Parliament through the designated minister, and would function entirely independently and without interference, just as the Public Service Integrity Officer has already done to date, even without a legislative disclosure regime.

[English]

In order to ensure that organizations will correct wrongdoing, if it occurs, the commissioner would be given very strong powers to investigate, to protect confidentiality, and to report. The integrity commissioner's ability to report to Parliament has been strengthened by allowing the commissioner, at any time, to issue a special report—which must be quickly tabled in Parliament. This is a very strong tool for the commissioner. I would be happy to discuss these substantial powers in greater detail, if you wish to pursue this topic this morning.

I also want to emphasize that public sector employees would have direct access to the commissioner. Again, this bill achieves a balance between encouraging the use of internal systems and ensuring access, to be an effective, independent arm's-length mechanism.

Disclosure within an individual organization is the first option for a variety of reasons, including, as I mentioned at the outset of my remarks, the need to provide organizations, where possible, with the opportunity for early self-correction. But if an employee believes that the nature of this disclosure requires reporting to an independent commissioner, that option is open and available to all public servants from the start.

¿ (0915)

[Translation]

This Bill is a centrepiece of the government's firm commitment to ensure transparency, accountability, financial responsibility and ethical conduct. I am pleased that this committee is examining the Bill before second reading, which is in line with the government's commitment to erase the democratic deficit.

I deeply believe in the democratic process of consultation, discussion and amendments that this committee will undertake. And I am very open to any changes to the bill you may suggest as a result of your deliberations.

In fact, when the committee undertakes its clause-by-clause consideration of the bill, the government intends to propose amendments to grant discretionary access and privacy exemptions for those records that might reveal identities or information obtained at any stage in the disclosure process.

This is meant to ensure that public servants feel equally secure in raising issues of wrong doing either to their senior officer or to the Commissioner.

The government also intends to propose an amendment to ensure that public servants who make a public disclosure in accordance with the act are eligible for the protection provided by the act. We will also propose an amendment to ensure that the protection regime of this bill would be made retroactive to February 12, 2004 in relation to any disclosure made to a parliamentary proceeding or commission of inquiry. This amendment is consistent with the amendment that has already been made to the internal disclosure policy now in effect for the core public service.

[English]

I encourage the committee to give these amendments careful consideration.

Mr. Chairman, I think the spirit of this legislation is a matter of balance. First of all, and foremost, we want to protect the people who want to do their duty, who want to make sure that if they see wrongdoing they will have the capacity, and the possibility, to prevent the problem. But at the same time we have to be responsible. If we have some frivolous whistle-blowing, I think it is also important to protect the system and protect the people who are targeted.

So we truly believe that what we're aiming at is a future charter of public service, and of course it will force us to change the culture of the way things are going now, to create a new relationship between bureaucracy and the political power. But at the same time I think what we're doing is providing some tools that will help people do their job. I truly believe we have tremendous public service workers. At the same time we need to provide them with some tools in case they see that there are some situations....

I would like to also mention that since the beginning it has been a very open and transparent process. We had a lot of consultation with union leaders, with a lot of people, with deputy ministers. At the same time, to have the kind of legislation that will touch not only the public service but also crown corporations makes it pretty big legislation, a big change.

[Translation]

I think this bill will bring about a new balance between allowing public servants to do their job, to fulfil their duty, and at the same time, preventing frivolous disclosures that amount to personal vendettas. So we have to try to strike the right balance and to say once again, in both official languages, that we are extremely proud of our officials and the work they do. I think we are putting in place the guidelines for a new public service charter.

I believe so much in this bill, Mr. Chairman, that I am prepared to come back before the committee not only on the bill, but later on the code of conduct, which will actually be the regulations. This committee will be reviewing the code of conduct as well to ensure that we get input from parliamentarians at all levels.

This is everybody's business, and I think that together we can frame a bill and a code of conduct that will meet all of our concerns.

Thank you very much.

¿ (0920)

[English]

The Chair: Thank you kindly, Minister.

You referred to three proposed amendments that the government will be proposing, and I wonder if you could ask your officials to provide the clerk with whatever information might be available so that it can be circulated to all committee members.

Let's commence with a round of questioning, starting with Mr. Forseth, please.

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, CPC): Thank you, and welcome to the committee today.

I'll ask straight off the top, why does the bill not propose that the public sector integrity commissioner be accountable solely to Parliament, as the committee on government operations, our committee, had recommended last fall? It seems that the bill is going halfway. We know that confidence in the structure and in the capacity here is fundamental. It just won't work if there's no faith that it's not going to work. People are not going to come forward. And that was part of the problem with the previous memo regime: no one had any confidence in it and therefore it didn't work. So the appearance and the structure as observed by potential users is really fundamental.

I'm simply wondering, again, why does the bill not propose that the commissioner be accountable solely to Parliament?

Hon. Denis Coderre: I believe not only that this person will be independent, but that, first of all, the person, the future commissioner, will be appointed by a resolution from the House of Commons and the Senate. We're not creating another tribunal. What we're creating is a new agent of government, and we believe that like the commissioner of the Public Service Commission...that person is independent but is related to a minister too.

I would say that if you look at the power of this person, if you're looking at the way that person will be appointed, I truly believe the opposite. It is an independent person who will have all the tools to do his or her job. So I am totally in disagreement with you.

Mr. Paul Forseth: Second, why should an employee not be allowed to take their disclosure directly to this integrity officer without first going through internal channels? The bill lays out some criteria, a list; well, you can only do this if you've already done that. There's a lot of area for discretion, so I can see a lot of interpretive hurdles that will cause potential users to just get discouraged at the front end. What option does an employee have when their immediate supervisors are responsible for the wrongdoing? You say in response that they'll have all the tools, but I really wonder, especially when they don't have subpoena power for documents and so on.

Anyway, let's go specifically to the question about the channel for being able to report wrongdoing and the kind of hierarchical regime that's set out in the bill. It seems to be very discouraging.

Hon. Denis Coderre: Look at clause 12. It is pretty clear in my mind that any individual can go directly to the commissioner, but I will tell you this. If we feel the wording is not as clear as it's supposed to be, let's make it happen.

Frankly, clause 12 is very clear. Of course, you have a series of reasons where you can go directly to the commissioner, but the bottom line is if the whistle-blower feels he should go directly, he has the full capacity to do so. I think clause 12 is pretty clear, and that's why in my speech this morning I wanted to clarify that.

Of course, there are many other situations where you just cannot afford... If the department is too small and the person feels it will be easy for him or her to be identified, the whistle-blower can of course go directly to the commissioner. But I think under that clause we have all the criteria necessary. Frankly, from the top down, that person can go directly to the commissioner no matter what.

¿ (0925)

Mr. Paul Forseth: I'll ask one final question in this round, and it is related to the 30-day limit. That is a concern, given that in my previous career I dealt with problem individuals in their time of life crisis. Sometimes they'd be mulling over a situation. It may not have been a clear case where they'd observed wrongdoing; they may have been having some self-examination with respect to their career, and it may have taken them over a year to put the situation together and resolve it. Yes, they're going to decide to report wrongdoing rather than realizing it was something else. This relates to another private member's bill on harassment, which we might have to look at in combination with the reporting of wrongdoing.

In any event, I want to specifically address the time limit. At first blush it appears that it's far too limited. I take the Radwanski affair as an example, where someone may gradually, over a period of time, realize that maybe something is going on, and it's not one specific event. There needs to be time for it to develop, for someone to eventually decide, after exploring their options, that yes, I'm going to use the formal mechanisms that are available. A time limit more like two years would to my mind make much more sense than 30 days.

Hon. Denis Coderre: Well, the 30-day limit is to ensure that complaints are made in a timely manner, and the limit applies in two cases. The first is 30 days from a report by the commissioner on whether in his or her view reprisal has been taken against a public servant. The second case occurs at the point in time when the public servant makes the connection between a reprisal action and the fact that he or she has made a disclosure. It is not necessarily from the point at which a reprisal was taken. I believe that by saying so we cover your question.

The Chair: Madam Guay, s'il vous plaît.

[Translation]

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

Thank you for appearing before the committee today, Minister. I noticed you are very familiar with your bill. That means we can ask you direct questions about it, which is very good.

You already know where we stand on the bill. We agree with its substance. However, we will be bringing forward some amendments here at committee. I'm very pleased to see that you have already got some amendments that reflect my speech in the House, including the one regarding retroactivity. I'm very pleased to see that this will be included in the bill, and I hope we will have these amendments quickly, because our parties are busy drafting amendments at the moment. And that way, we could avoid doing the work twice.

That said, I share my colleague's concern regarding the Commissioner. I would like this individual to report directly to the House, so that he or she is completely independent. This committee had already recommended that. I think it is awkward to require him to report through a minister. It would really be desirable for the Commissioner to report directly to the House. This does not mean that we oppose the bill, but it would be desirable to give the Commissioner this full independence. I'm sure we will be discussing this matter with the witnesses we hear.

The important thing, as regards relations with unions, is whether or not they will have a role to play in this bill. Can employees who make disclosures be protected by their union? Will unions have a role to play with the Commissioner? I would like to hear your comments on that.

¿ (0930)

Hon. Denis Coderre: You have asked several questions. First of all, I would refer all committee members to clauses 22, 33, 34 and 35 of the bill for discussions regarding the powers of the commissioner. These clauses set out all of the commissioner's powers.

Why am I referring you to these clauses? Because you will see that even if the commissioner reports to a minister, his or her powers, and not just the appointment process, are such that the commissioner is independent and there will be no interference in the process. The commissioner does report to a minister, but there is no interference, as is the case with the Commissioner of the Public Service Commission. So I think this is extremely important. The fact that the commissioner is also appointed by commission under the Great Seal, after approval by resolution of the Senate and House of Commons, is important as well.

So the individual is independent, and when there is a need... It is essential to understand how this will work. When the commissioner receives a complaint and subsequently reports, initially to the deputy minister, the commissioner makes recommendations to correct the situation. If the situation is not corrected, the commissioner then reports directly to the minister involved and tells him or her to deal with the problem.

If, for all sorts of reasons I would fail to understand myself, the minister does not deal with the problem, the commissioner would then go to see his or her minister with a special report and ask the minister to table it in the House of Commons. The minister's role would be to table this special report, thus... The minister has a report. His role is to provide a link between Parliament and the commissioner's office. So the report would be tabled in the House of Commons. It is important to mention this fact. However, we are not creating another court. This is an arm's length situation which occurs in other cases. The commissioner would be an officer of the government, an officer of Parliament who, in my opinion, can play his or her role.

The fact that he reports to a minister is also a matter of accountability. I think this makes the whole structure accountable. There is no sin in reporting to a minister, particularly since the minister has all the powers he needs to respond. We can assume our responsibilities; I am capable of doing so.

I must say that I very much liked the question the unions, because I must tell you that this is an extremely inclusive process. I would like to pay tribute to the work done in particular by the president of the agency, Ms. Chartrand, and all the officials, who ensured that, even though the bill was drafted in five weeks, they were in constant consultation with various group, including the unions. I myself have spoken to some union presidents. We met with not only public service unions, but also crown corporation unions. I think we really covered everything. The fact that we are referring the bill to a parliamentary committee immediately after first reading means that there will be another consultation process. It is in everyone's interest that this bill be effective, and we want to work on that. I think we have really done our job in that regard.

Mrs. Monique Guay: This is a very important bill and a very desirable one. I would also like to know how you plan to inform workers about it.

How are you going to go about disseminating the information? The bill is after all very technical. We work in this field and are familiar with it, but workers may not necessarily be familiar with it. How will we inform them of their options?

I have another question, which will probably be my last one if I run out of time. It is about worker protection. How will we ensure that our workers... If they're threatened in their department or anything at all happens, we have to be able to relocate them. They must not lose their jobs, any salary or anything whatsoever. That is always the ultimate threat. Obviously, people who blow the whistle are not going to want to have their photographs spread around everywhere.

So what steps will be taken in this regard?

Hon. Denis Coderre: From a less technical point of view, I would like to start by saying that from the beginning I and my officials have been meeting with public servants in the field. I went to Sept-Îles and Shawinigan. So clearly, we have been making people aware of the bill. I would say that the bill also requires us to inform people. Clause 4 clearly provides that our role is to ensure that the information can be disseminated.

I'm sure that you will appreciate that the new bill we are bringing forward is not just about the vertical level. There is a genuine horizontal approach here, and that is why we want to empower everyone. We really want to ensure that all those who work for the public service of Canada or for a crown corporation have all the information they require to understand the bill properly.

Of course, we are talking about a culture change here. That is not an easy thing to bring about; this is not a bill on informers, it is a bill that seeks to empower people and enable them to do their job and to do their duty to the full. Consequently, it is very clear that under clause 4 we have to ensure that we talk to people directly. It is common sense as well, and I do agree with you that the bill is very technical. We will do this through the unions and through the deputy ministers.

Clearly, the fact that we are also appointing a senior officer for each department means that the role and function of this individual will be to act somewhat as a commissioner in protecting workers but also in informing them.

The most important feature of this bill, clearly, is the protection it provides for whistleblowers. I would refer you to clauses 15 and 16 which—and I do not want to take up too much time here—provide all the answers to your questions, particularly as regards the process. Clearly, we want to protect those who disclose wrongdoings, and when we talk about reprisals, once the complaint is checked, validated, and so forth, we definitely want to provide protection for these people. If these individuals ultimately suffer a demotion or a loss of salary because of their disclosure, we will ensure full protection of their rights.

As I'm sure you understand, the bill, particularly as regards the commissioner, is somewhat complementary to the mechanisms that already exist. There is a Public Service Staff Relations Board. The commissioner is the individual who will ensure, on recommendation, that the person who discloses the wrongdoing enjoys protection and recovers whatever he lost.

¿ (0935)

[English]

The Chair: Thank you.

I just wanted to inform the members that the minister, I understand, is required to leave to go to cabinet at 10:15. The other witnesses will be staying with us.

We'll move now to Mr. Martin, please.

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

Thank you, Mr. Minister, for being here.

It's no secret, Mr. Minister, how I feel about this bill in its current form, as I think you're well aware. A lot of people believe this is not an act to protect whistle-blowers; this is an act to protect ministers from whistle-blowers, and it should be called “the act to plug leaks”.

A lot of us, some of the unions I've spoken to and people who are experts in this field, feel we're better off with no legislation than with what you have put forward as a whistle-blowing bill. If anything, civil servants may be lulled into a false sense of security by this bill when in fact they're not sheltered by this bill in any adequate way.

Given that no fewer than three recent task forces strongly recommended and categorically said the whistle-blowing officer must report directly to Parliament, by what convoluted logic, for what reason, did you ignore the recommendations from the best minds in the country on this subject?

Secondly, where does your government get off running ads on television, promotional pre-election ads, that read “whistle-blowers are now protected by legislation” on the ticker tape going along on the bottom?

That would be jumping the gun, even if this was a good bill, but the fact is it's a flawed bill and is nowhere near being passed. Whistle-blowers are not protected by legislation in this country. Isn't this committee only “busy work” to keep us on the issue of whistle-blowing, so you can claim your government is in fact offering whistle-blowing legislation, or civil servants have it, as advertised in this bogus ad scam on the television promotional campaign you're running?

To start, why in God's name did you ignore the best minds in the country on their recommendations on whistle-blowing?

Where do you get off telling the Canadian public that civil servants now have whistle-blowing legislation, when they clearly don't and would be better off with nothing at all than the pact you've brought before this committee?

¿ (0940)

Hon. Denis Coderre: Well, I know you have a lot of contacts in unions--that's the name of the game for the NDP--but I have contacts and I spoke with them too. Frankly, there are two things.

They believe it's not bogus legislation, because we've been working closely with them. Of course, you might have some individuals who have their own ways for their own purposes, but the bottom line is this is a very serious piece of legislation. Even the unions are working for it, so sorry about your partisan line.

Secondly, I would say this. If you refer to the last task force, they said frankly that they wanted to have an agent of Parliament related to a minister or to Parliament directly. They were the best of minds, and I agreed with them. I made a choice. With the article that I provided to you, I believe not only that the person is independent, but that person will have all the power to do the job and will cut those partisan “stickers” that you're trying to put forward.

I would say this. This is very important legislation. Not only do we believe in the legislation, but we believe in the process with parliamentarians. It's the reason why, after the first reading, we went directly through the parliamentary committee.

I said that I'm flexible on amendments. In saying that, I think we have to be—

Mr. Pat Martin: Would you expect that—

Hon. Denis Coderre: You asked the question, let me answer. I agree with one thing.

Mr. Pat Martin: Well, I'm almost out of time.

The Chair: I'll give you time, Pat.

Hon. Denis Coderre: If you look at the legislation, we want to read it first. In reading it, it clearly says the commissioner will have all the powers to do the job. They have all the tools.

I totally disagree with you.

Mr. Pat Martin: Why then has Mr. Keyserlingk said that one of the key flaws he identified in the bill is that they won't have the same investigative powers that they would have had were they true officers of Parliament?

What the three task forces and working groups that I'm talking about recommended was that this new person would have the same authority and powers as the Auditor General, as the Office of the Privacy Commissioner, and as the Chief Electoral Officer, or be of their stature and status. That is not the case, and in fact the leading minds of the country on this subject have torn this bill to shreds; they've started at one end and gone down to the other end and have said it's useless.

Not to be unkind here... I'm not trying to criticize you personally, but we feel we're being used. Some of us on this committee feel we're being used as a backdrop for a public relations ploy on your part, saying, “We're fulfilling our red book promise of 1993”, which said that you would give legislative protection to whistle-blowers, whereas in fact it's hollow. It's an empty bag that you're offering here, because it doesn't protect...

Let's look at the sponsorship scandal or at the Radwanski scandal; they are why the Canadian public is ripe and receptive to looking at whistle-blowing. In the Radwanski affair, under your proposed regimen for whistle-blowing reporting, it would have been useless and wouldn't have helped. I argue that this package wouldn't have helped us in the Radwanski affair or the sponsorship scandal—either one of those.

I'm probably out of time.

Hon. Denis Coderre: I've learned one thing from you: I never take anything personally, so it's okay.

One thing is clear. I totally, totally disagree with you. And frankly, when you have a commissioner who has the power to get inside any ministry—any ministry.... Listen to me, we're not creating another tribunal. What we're doing is we're having an agent of Parliament who will have the full authority to get to the bottom of things and to have all of the information, and to make sure that they report not only directly to the sous-ministre....

I listened to your question, so you'd better listen to my answer.

First of all, that person will be able to make any kind of administrative inquiries and then go directly to the deputy minister and say, “Listen, this is what you should do, and if the wrongdoing is not corrected, then you go directly to the minister; and if the minister is not doing their job by correcting the situation, then you go publicly through Parliament and deposit a report and have the Pat Martins of this world ask all the questions they want and make a big fuss to score political points”.

I'm saying that with this legislation this commissioner would, of course, correct any kind of wrongdoing, because he has the power to do so.

¿ (0945)

The Chair: Mr. Shepherd.

Mr. Alex Shepherd (Durham, Lib.): Mr. Minister, I was interested to hear your defence of the role of the commissioner, but I'd just like to turn that around the other way and ask you why you feel having the commissioner report to Parliament is not a good model.

Hon. Denis Coderre: I believe that, first of all, by providing all the powers he has, by being appointed by the Great Seal, and also by depending on a minister to cover all of the angles...

It's like the commissioner of the Public Service Commission. That person doesn't depend directly on Parliament. Is that person independent? Yes. Do we feel we're fooling around with that agency? No. So we have a great example of that agent being efficient, and we feel the same about...

Mr. Alex Shepherd: But I don't really think you answered the question.

The question really was, given the model in previous works saying that it would be a good idea for the commissioner to report to Parliament, I still don't understand....

If you're concerned about independence, and given your stated goal of dealing with the democratic deficit of Parliament, why do you feel it wouldn't be as good a model as the one you're putting forward?

Hon. Denis Coderre: You will have your discussion to prove to me that we should make a change, but I believe we have a big advantage by having it related to ministers, because it is related not only to Parliament but to the system as a whole. If people prove me wrong, I'm ready to listen, but frankly, I think the way we shaped that legislation and the function of the commissioner itself is a very balanced approach. If you have the feeling that it is not the case, we will listen, but right now I don't have arguments saying otherwise. With all the powers this person has, the power, through the minister, to deposit, for example, a special report, which is what you want to know, what is going on in the field, I believe we have covered all the angles. Prove me wrong.

Mr. Alex Shepherd: I guess we have a lot of respect for the Auditor General. We think she is an independent role model, and it is that kind of model we are looking for in legislation.

We go on to talk about protection of whistle-blowers. What are the consequences for wrongdoing? There is no discussion in here about it. We're protecting the whistle-blowers, but what is the consequence for somebody who has committed an offence or a transgression? If somebody goes through the process of whistle-blowing, it would be nice to think there are consequences for those people whose wrongdoing is reported.

Hon. Denis Coderre: I understand your question, but first things first. We want to make sure that if an individual witnesses some wrongdoing, we send a clear message that this person will be protected. There are some sanctions. I would like you to read clause 9 on wrongdoing; that covers the question about sanctions. Of course, one of the sanctions is that the person can lose their job.

Mr. Alex Shepherd: Finally, what's the cost to the taxpayer to set this up?

¿ (0950)

Hon. Denis Coderre: It is $28.5 million over five years.

The Chair: Ms. Yelich.

Mrs. Lynne Yelich (Blackstrap, CPC): Thank you.

We had Mr. Reid here from the information office. He said he has no problem with the powers he has. His problem is that many ministers don't allow information to be released. He also has 17 exemptions on information he cannot release to the public. He has done a report to the House. He feels they are not responding to his recommendations, which include review of those exemptions. There is the independent officer of the House you are recommending be set up, but we have one right now who is getting fairly desperate and would like to be heard. I wonder if we're not setting ourselves up for the same sorts of problems.

This is perhaps a little too pointed, but where would Beaudoin have gone when he wanted to take the Prime Minister to task on some of the demands the Prime Minister was making on him? I'm sure no independent commissioner would take on the Prime Minister. If it had not been for the media, and probably some opposition members, much of that would have been under the rug. This is a great whistle-blower for a department and public servants, but I'm thinking this should not be called whistle-blowing. I agree with Mr. Martin, this should be called either the Radwanski, or even the Chrétien, legacy, because that is certainly why it's here. We're talking about people way up high I think we're trying to protect from whistle-blowing.

So I want to make comparisons mainly, going back to this other officer. You made some very good remarks about how this person is going to be very independent and have so many functions. That's my question.

Hon. Denis Coderre: Well, I'll try to understand your question.

You have to clarify between two things. First of all, when we're talking about whistle-blowing, we're talking about the public service. When we talk about ministers or their staff, it's another issue.

You have to be respectful of the parliamentary tradition ones. We can depend directly on the Speaker or we will come with the legislation to the commissioner for ethics. That's another issue.

The bottom line is the legislation was for public servants. It's the reason we put that up.

On the other question on independence, frankly, I didn't understand it.

Mrs. Lynne Yelich: Mr. Reid was here.

Hon. Denis Coderre: Oh, privacy.

Mrs. Lynne Yelich: Not privacy; he's from access to information. I'm sorry, it was access to information and he is an officer. We're setting up the same sort of commissioner or the same sort of officer.

The Chair: No, not quite. It's not the same thing.

Mrs. Lynne Yelich: No, not quite? It's not quite the same department?

Hon. Denis Coderre: No.

Mrs. Lynne Yelich: Okay.

The Chair: Monsieur Gaudet.

[Translation]

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

I have a number of questions for you, without any preamble, Minister.

What are the criteria for someone who wants to be commissioner? Will all the political parties be part of the selection board?

Ms. Michelle Chartrand (President, Public Service Human Resources Management Agency of Canada): I believe the minister referred to the criteria earlier. Obviously, the individual who holds this position will have to have exemplary qualities in terms of integrity, judgment and an ability to balance extremely controversial subjects. All of this will be set out in a statement of qualifications which will specify the type of qualities sought for this position.

The second part of your question is really whether you will be involved. The commissioner will be appointed following approval by the two chambers—the House of Commons and the Senate. You will find that—I will give you the exact reference—in clause 18, on page 8. The commissioner will be appointed by both the Senate and the House of Commons; the term will be seven years and will be renewable once.

¿ (0955)

Mr. Roger Gaudet: That was not my question. While it is true that you did give a general answer, I would like to know whether all the parties will be on the selection board? That is what I want to know.

Ms. Michelle Chartrand: That will be done by the government.

Mr. Roger Gaudet: I know the appointment will be approved by the House and the Senate, but will all the political parties represented in the House of Commons be on the selection board?

Ms. Michelle Chartrand: Before the approval by the two chambers, there will be a review of candidacies by committees made up of representatives from all the parties.

Mr. Roger Gaudet: To which minister will the commissioner report? Is there one minister in particular? Will it be you, Minister?

Hon. Denis Coderre: That has not yet been decided, and it will be decided by the governor in council. The Prime Minister will decide to whom the commissioner reports. But I will take note of your suggestions.

Mr. Roger Gaudet: You said earlier that you had a budget of $28.5 million for five years. I would like to know what the organization chart of the commissioner and his staff will look like.

Ms. Michelle Chartrand: Not everything has been worked out, but there will be approximately $3 million of the $28 million...

Mr. Roger Gaudet: Let us divide that figure by five, because $28 million is a rather large amount of money.

Ms. Michelle Chartrand: Five years.

Mr. Roger Gaudet: Over five years, that means $5.5 million a year, roughly.

Ms. Michelle Chartrand: That is correct. I would say the budget of the commissioner's office itself would be about $3 million. We have an Office of Public Service Values and Ethics that will have a budget of some $3.5 million or $4 million. The rest will be used to implement the act in the department, because there are costs involved in providing information and training.

Mr. Roger Gaudet: You are going to provide training to people to disclose wrongdoings? I'm having trouble imagining that.

Ms. Michelle Chartrand: If we appoint a senior officer in each department and we do that without providing any training, without explaining how the system will work... Training is essential, and it costs money. So, the rest of the budget is not for us, the agency, nor for the commissioner, but rather to implement the act in the department, because this will definitely cost some money.

Mr. Roger Gaudet: And there's something else.

Is my time up?

[English]

The Chair: No, I thought you were finished.

[Translation]

Mr. Roger Gaudet: Clause 18(2) on page 9 reads as follows:

(2) The Commissioner holds office during good behaviour for a term of seven years, but may be removed by the Governor in Council on address of the Senate and House of Commons.

That means—and this is a hypothesis—that if there's a change in government, there could be a change in commissioner. Is that what this clause means? If the government changes, the commissioner changes.

Mrs. Monique Guay: The commissioner changes.

Mr. Roger Gaudet: Can the commissioner be changed? That is my question. Given the way in which this clause is worded, even if the government does not change, if the commissioner is not satisfactory to the governors, the commissioner is changed. That is the point of my question.

Ms. Michelle Chartrand: The clause is there for two reasons. If at some point a commissioner were to prove unequal to the task and had to be discharged from his or her duties, the clause would be necessary. If he had to be relieved of his duties because he was not up to the job, it would be necessary to go back to the two chambers—the Senate and the House of Commons—to inform them that the commissioner was being relieved of his duties for extraordinary reasons, quite clearly. That could happen.

Mr. Roger Gaudet: I'm not saying that that could not happen, but I think we are leaving the door very wide open. This clause means that there could be a partisan appointment. That is my fear : we could have someone who is partisan, and if he did not follow the government line, reasons could be found to remove him. That is my fear.

Ms. Michelle Chartrand: You raise a very good point. It is difficult to strike the right balance. If we provide a seven-year term and it is during good behaviour, we cannot really... That is not preferable.

Mr. Roger Gaudet: It is not during good behaviour, but if you say so, it is more at pleasure than during good behaviour. That is my question. If an official is not satisfactory to the government, it is the same as if a minister were unsatisfactory : the Prime Minister replaces the individual and that is the end of the matter.

Hon. Denis Coderre: But there is a difference.

Mr. Roger Gaudet: I understand, but—

Hon. Denis Coderre: But this is important, Mr. Gaudet. This would be done on address of the Senate and House of Commons. This fact must be mentioned.

Ms. Michelle Chartrand: Absolutely, the matter comes before us.

Hon. Denis Coderre: Absolutely, the matter comes before us.

Mr. Roger Gaudet: I see. That answers my questions.

[English]

The Chair: Mr. Martin.

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

To pick up where we left off when you ran out of time, Mr. Minister, you were saying the commissioner has all the administrative powers that are needed. This is one of the flaws, and I'd like to point out that the commissioner does not have the power of subpoena, can't get access to cabinet documents, can't probe complaints from other Canadians about third parties' wrongdoing, can't follow investigations into ministers' offices--all of which were recommended by the working group. So you ignored all the recommendations to give that commissioner real teeth, much like other officers of Parliament. You've ignored all those key elements. So they have administrative powers, but no investigative powers such as, I argue, they would need to get to the bottom of a complaint.

But my question has to do with the lack of sanctions. If this bill is all about protecting whistle-blowers, why are there no fines or sanctions against employers who retaliate against whistle-blowers? Why can the commissioner not rule on reprisal claims? The aggrieved employee has to go before the CIRB and make their case, as with any other grievance, and everybody knows that in those kinds of courtroom, quasi-judicial settings there are winners and losers. So even if an employee has a valid case, depending on how it's presented and what lawyer they hire, they still have to go through 18 months of grief. So why have you chosen not to give the commissioners any power to give remedy to those who feel aggrieved by being disciplined?

À (1000)

Hon. Denis Coderre: It's a legitimate question, but I disagree with you. When you look at clause 22, you have all those powers, and administrative powers mean a lot. The thing is, we're not creating another tribunal; that's the issue. Subclause 22(1) reads:

Chief executives must provide the Commissioner with any facilities, assistance, information and access to the offices under their control and direction that the Commissioner requires for the performance of his or her duties.

Mr. Pat Martin: What about management of the process?

Hon. Denis Coderre: I answered that question before. When we're talking about public servants now, this is a complementary approach. We will have the commissioner of ethics who will provide that kind of thing. What we're looking for now is protection for public servants. In clause 9, anyway, you have all those sanctions.

Clause 29 is pretty strong:

If the Commissioner considers it necessary, he or she may report a matter to the Minister responsible for the portion of the public sector concerned or, if the matter relates to a Crown corporation, to its board or governing council, including, but not limited to, when the Commissioner isn't of the opinion that

The rest follows. When the commissioner will say this ministry, this deputy minister, or this minister is not doing their job and make it public, I think it's pretty strong.

Mr. Pat Martin: It would have done no good with Gagliano and Guité and Quail, that whole conspiracy. You would have got nowhere. So any public servant with knowledge of the sponsorgate scandal would have to have kept silent, because under these circumstances and these rules, there would be no safe avenue of recourse for them.

Hon. Denis Coderre: You're mixing things up again.

Mr. Pat Martin: If the minister is implicated--

Hon. Denis Coderre: First, there is a difference between this and the future commissioner of integrity. That's another issue. But if we're talking about wrongdoing within ministries, the fact is that if we are witnessing some situation with directors, deputy ministers, or whoever, not only is the legislation strong, it covers all those angles.

Mr. Pat Martin: They have to go to their boss first.

Hon. Denis Coderre: Not true.

Mr. Pat Martin: I watched the whistle-blowers in the Radwanski affair. They had to bring their own lawyers with them for their protection.

Hon. Denis Coderre: Mr. Martin, that's not true. It's not going to the boss. I've said since the beginning that clause 12 is pretty clear. You can go directly to the commissioner. We're looking to “responsibilize” the machine as a whole. We feel that if we can't correct the situation internally, so be it. The agent within the ministries will have all the same powers as the commissioner. That's what I'm proposing, to protect that individual within the legislation on access to information and privacy. So to say that he has to go through his boss is totally wrong, and I hope the media will take note of that.

À (1005)

The Chair: Ms. Chamberlain.

Hon. Brenda Chamberlain (Guelph—Wellington, Lib.): Thank you, Mr. Chairman.

It is my hope that in this committee we're going to really try to put the partisan stuff aside, because I think this is a really important bill. I think people at large want this, I think the public service wants this, and I think we have to try to deliver. I think the NDP has a huge role to play, because of their background, but I also know they haven't been represented for weeks on this committee, and I'm glad they're here to put a few points through.

Mr. Pat Martin: I have a point of order, Mr. Chairman.

The Chair: I understand, Mr. Martin. The minister is only going to be here for a couple of minutes. I do not want to waste the time. We'll deal with this later, Pat.

Please get on to a question.

Hon. Brenda Chamberlain: Minister, you have said there are four jurisdictions that have disclosure laws. The committee already today seems to have concern about how we're going to report. I'm wondering if you can tell us how those four jurisdictions report. Is that easily done, or is it too difficult?

Mr. Ralph Heintzman (Vice-President, Values and Ethics Division, Public Service Human Resources Management Agency of Canada): A frequent pattern in Commonwealth countries is for the disclosure function to be performed by a public service commission or commissioners. In the U.K. it's the Public Service Commissioners. In Australia it's the Public Service Commissioner. In New Zealand it's slightly different: there's no one independent officer who is responsible; a variety of persons can take disclosures, and they don't have anything like the extensive protection regime that's included in this bill.

Hon. Brenda Chamberlain: Have you given any thought to the qualifications of the commissioner, what you see them having to hold such a position? It's going to be a very important position.

Hon. Denis Coderre: Of course, that person will be very important, and when we put forward the criteria, I think they will have to reflect the importance of his or her position. Further, by going through the House of Commons and the Senate, we're sending a strong message that the person should be top-notch. I believe, like you, it will be very important that the criteria reflect the position.

Hon. Brenda Chamberlain: Mr. Shepherd alluded to this, but I think the frivolous whistle-blowing part of this is going to be crucial. Clearly, as we have to protect people who come forth--that's very important--we also have to give some support to people who are wrongly accused or the subject of stories that are incorrect. That, I think, is a very fine balance in this bill. I'm wondering how you are going to manage that.

Hon. Denis Coderre: I think there are two keys to that legislation: balance and responsibility. It's very important that the person who is doing the whistle-blowing be responsible. We all know the situation might happen where you're aiming at people and they can lose their reputation, or it can create some turmoil within the system. That's why it's very important that anyone making a denunciation know exactly what they're doing. Clause 9, where we're talking about frivolous whistle-blowing, I think covers your question.

Hon. Brenda Chamberlain: Maybe we could have that circulated. Could we, Mr. Chairman?

Hon. Denis Coderre: I can read it for you if you want. It's in the bill.

Hon. Brenda Chamberlain: I'm sorry, I thought you meant there was another piece. I misunderstood what the minister was saying.

À (1010)

The Chair: Mr. Forseth has a couple of questions, Minister, and I'd also like to pose one or two questions to you.

Mr. Paul Forseth: Thank you.

What's the intent and effect of page 11, clause 24?

Mr. Ralph Heintzman: This has to do with situations where people may want to use more than one process to deal with the matter at the same time. What this provides is that if an allegation or situation is already being investigated or dealt with by some other body, the commissioner shouldn't get into the same act, so that you don't have two organizations dealing with the same case at the same time. There should be one avenue that's dealing with the allegation or complaint.

Mr. Paul Forseth: So if the union is involved, it prohibits the commissioner from being involved?

Mr. Ralph Heintzman: This has nothing to do with the union. For example, if someone has launched a grievance procedure and is using all the channels for the regulation of grievances in the public service that are provided, they shouldn't start a parallel process somewhere else until the first has been exhausted, so that you're not chasing two rabbits at the same time. It's nothing to do with unions.

Mr. Paul Forseth: That's exactly my point, because the unions are involved in the grievance process. You've just exactly confirmed what my hunch was.

How does the commissioner ensure that remediation happens? It's fine to have a system of reporting wrongdoing, where we find out wrongdoing and recommendations are made, but how does the commission then ensure that something is actually done? If we don't have that back-end checking, the whole system is going to collapse very quickly, because we've used the system and nothing ever changes. So what power does the system have to ensure that remediation is effected and the public knows about it in response to a reported wrongdoing?

Hon. Denis Coderre: Look at paragraph 20(c):

investigating disclosures of wrongdoing made in accordance with section 12, reviewing the results of the investigations, reporting his or her findings to the persons who made the disclosures and to the appropriate chief executives and making recommendations to chief executives concerning the measures to be taken to correct the wrongdoings, including those involving reprisals

Mr. Paul Forseth: It doesn't answer the question.

The Chair: Maybe we will have another opportunity; we might want to do that.

Minister, if a public sector employee has an allegation of wrongdoing or simply wants to report what they believe to be wrongdoing, I think it's very important that you reaffirm the intent of the bill that any employee can go outside the internal mechanism if they feel, in good faith, with reasonable cause, that's the best approach.

Hon. Denis Coderre: I totally agree with you. The intention of clause 12 is very clear: you can go directly. If we feel it's a matter of wording, I'm ready to make those kinds of amendments to send a clear message to public service workers that if they want to go directly to the commissioner, they can do so.

The Chair: If there is an allegation of wrongdoing, the best outcome is a timely, effective, fair process in which there are no reprisals. It has been suggested by some that an internal process, in the general case, would be a more effective way of addressing allegations of wrongdoing. Is that a principle you would support?

Hon. Denis Coderre: I believe the legislation is for internal purposes. There are some specific public whistle-blowing issues if public security or environment or health is at stake, but I think the purpose of the legislation itself involves an internal process.

À (1015)

The Chair: Finally, the inclusion of crown corporations under this bill is a matter that I understand is gathering some attention. What was the major determinant for including crown corporations under the purview of the act?

Hon. Denis Coderre: Simply, we wanted to cover all the angles, and we believe this is a component of the system that needed to be covered. We wanted to make sure this legislation is inclusive and everybody is at the same level.

The Chair: Minister, I want to thank you very kindly for addressing the committee and answering the questions. As you know, in the prior session of Parliament we dealt with another Bill C-25, on public service renewal, and at that time there was a concern expressed about cynicism within the public service, and indeed an admission by the departments that the renewal process was not the full process, that it was halfway, and that's all it was felt we could deal with at the time. I think it was a matter of trust that ultimately came out to be the case. People weren't sure whether they could count on the changes or whether the changes prescribed in the legislation would be implemented and achieve their intended results. I much suspect that the aspect of trust is going to be central in determining that balancing point between the right of the employer to have loyalty from an employee and the right of an individual to have freedom of expression where they believe there is an allegation of wrongdoing.

We're going to examine that further, but we do thank you for starting us off, I believe, on a good track. We'll be carrying on with your officials.

Hon. Denis Coderre: Thank you very much.

I believe the legislation, if it's treated fairly and in a non-partisan way.... What we're trying to do is not only have an inclusive process. I truly believe, like you, that trust and credibility are in order. That's why, even before we wrote that legislation, we acted with the collaboration of all the stakeholders. That's why we felt it was so important that after the first reading the committee should already have the bill in their hands to put forward some guidelines. I'm open to them.

Frankly, I believe we have a balanced approach. Our main aim is to protect the people who want to do their jobs, but at the same time we want to send a clear message that responsibility is in order. If people try to use the system for purposes other than those of the legislation, they have to face the consequences.

Thank you very much for giving me the opportunity to be here today. My officials will remain here, but if you need us, we'll be available any time.

The Chair: Thank you, Minister.

I'm not going to suspend. I think there are still quite a few questions, so I'm going to move to Ms. Neville.

Ms. Anita Neville (Winnipeg South Centre, Lib.): Thank you. I'll wait until the minister is back.

The Chair: Thank you.

Madame Guay.

[Translation]

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

Who will appoint the senior officers? Will they come directly from the departments, or will these individuals have different qualifications and come from outside the public service?

I have another question as well about employees who want to make a complaint. If they think they cannot give it to their senior officer because the latter is personally involved in the matter, can they go directly to the commissioner?

I know this is in the bill, but it is not very clear. Employees are supposed to make their complaint to the senior officer first, but if—

Mr. Ralph Heintzman: The answer to your second question is yes. Subparagraph 12(1)(b) provides clearly that if the person in a department or organization to whom the wrongdoing should be disclosed is the person, or one of his or her close associates, alleged to have committed it, the disclosure can be made directly to the commissioner.

The senior officer is an individual appointed by the deputy minister or the chief executive of the organization.

À (1020)

Mrs. Monique Guay: —[Editor's Note: Inaudible]—

Mr. Ralph Heintzman: Yes, that is correct. This person has the power to receive the disclosure and conduct the inquiry. The policy stipulates that this person must already be employed there.

Mrs. Monique Guay: Will you be providing this person with the necessary training to receive complaints, and so on?

Mr. Ralph Heintzman: Yes. There is a network of senior officers within the government. These people meet and share best practices. They get together to discuss how best to carry out this role, amongst themselves or along with the commissioner or officer, as part of his normal duties.

Mrs. Monique Guay: With respect to the commissioner, you will have noted that even the committee members would like him to report directly to the House, in the same way as the Auditor General. If that were the case, he would be able to act freely, and, when necessary, table a report directly to Parliament, without having to report first to someone else. We saw what happened with the Ethics Commissioner. The results are never very satisfactory, neither for the population nor for the members.

I think this issue will be a recurring one. I have already spoken with a number of labour representatives who told me that they would like to see the commissioner report directly to the House. You, along with the minister, are responsible for this bill, and I would like you to know whether or not you think we might be able to introduce that type of amendment?

We feel this is important. You must be aware that most of us, here, would like this commissioner to be truly independent in order to be able to do the job.

M. Ralph Heintzman: I think the matter is debatable. The committee will have to decide what duties this person will be given and if they relate more to the executive or the legislative function.

I would like to call to your attention clause 21, which defines the aim of the investigations and the commissioner's activities. It is very clear, and I quote:

21. The Commissioner carries out investigations in order to bring the existence of wrongdoings to the attention of chief executives and to make recommendations concerning corrective measures to be taken by them.

That, in any nutshell, is the role of the Commissioner.

Mrs. Monique Guay: According to what you are saying, the commissioner will make a recommendation to the department. He will indicate any disclosures or breach of ethics, but we will not be made aware of this. It will be done within the department, and the public will not have access to this information either. Things will be carried out in-house, without any formal procedures. That's disturbing.

Ms. Michelle Chartrand: I will try to clarify a point.

Under the provisions of this bill, there are three possible levels of intervention. The employee who wants to disclose a wrongdoing within his or her department can speak directly to a supervisor or senior officer.

Why have we chosen to proceed in this fashion? Why did we ensure that it was feasible and that this stage is possible within each department? Some things can and must be settled within the departments. It is not necessary to forward everything to the commissioner or make everything public. Some matters can be settled at a given level. They are of no interest to an outsider and could be better settled in-house. In fact, the unions thought it was a good idea to try to settle certain issues at the appropriate level. That is the first reason.

If an employee feels that he cannot speak directly to his superior or senior officer, for whatever reason, then we wanted to make it possible for that person to contact the commissioner directly in order to disclose wrongdoing. The employee will be entitled to do just that.

The wording is perhaps negative. The words “only if” should perhaps be replaced by something else. Nevertheless, the person can contact the commissioner directly.

If there is an imminent risk to health, safety, or the environment, the employee will have no time to discuss this with everyone. In such cases, the matter will become public.

À (1025)

Mrs. Monique Guay: That person would obviously have to go directly to the commissioner.

Ms. Michelle Chartrand: We probably didn't properly emphasize the fact that there are really three levels of intervention. That is very important. All three can be used.

[English]

The Chair: Mr. Martin.

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

If I'm reading this properly, or if I'm accurate in this, the new commissioner won't have the power to subpoena, won't have access to cabinet documents, and won't be able to take complaints from third-party Canadians who may have some knowledge, from people other than civil servants.

Ms. Michelle Chartrand: No.

Mr. Pat Martin: Then I don't see how his investigative powers differ at all from those of the current integrity officer. I don't see how the power to investigate is augmented or enhanced at all. Can you clarify that?

Mr. Ralph Heintzman: I'd be happy to.

If you have the bill in front of you, it would be worth looking at clause 22 in particular, because this is critical to the powers of the commissioner. This is the basis, or part of the basis--there are many others--that gives him very significant powers and powers well beyond those of the public service integrity officer.

What happens in clause 22 is that the bill places a legal obligation on chief executives:

Chief executives must

--it's a legal obligation, they have no choice--

provide the Commissioner with any facilities, assistance, information and access to the offices under their control and direction that the Commissioner requires for the performance of his or her duties.

So if the commissioner asks a chief executive for any of those things, the chief executive has no choice but to provide him with those.

Secondly, if you look at subclause 22(2), it says:

Every public servant must cooperate with the Commissioner and provide the Commissioner with any information that the Commissioner may require in the performance of the Commissioner's duties.

Mr. Pat Martin: That's not what was recommended by the working group, you will agree. That falls well short of what was recommended by the working group, if you remember.

Mr. Ralph Heintzman: “Falls short” is--

Mr. Pat Martin: The recommendations of the working group specifically cited the power to subpoena, access to cabinet documents, third-party complaints. All those things were specifically called for not by one working group, not just by the most recent task force, but by three recent groups who've studied this issue.

I know it's not up to you, but can you explain what you think the rationale would be for going so soft on the powers of investigation?

Ms. Michelle Chartrand: When the legislation was developed, as you know, a long, in-depth consultation process took place involving unions, involving 25 deputy ministers, and involving crown corporations. What we tried to reflect here.... And I agree with you, there were clear recommendations from the working group, but we also had to balance the input coming from all those people who, at the end of the day, have to live with this piece of legislation. There are--

Mr. Pat Martin: It should be in the best interests of the worker, not the best interests of the crown corporation or the deputy minister or the--

Ms. Michelle Chartrand: Unions were also consulted.

Mr. Pat Martin: Well, I know, but I know what their recommendations were.

Ms. Michelle Chartrand: The choice was made not to create another tribunal, as the minister explained, but to empower the commissioner with the tools necessary to properly do his job.

Mr. Pat Martin: I accept that you went as far as you thought you could. Believe me, I'm not trying to be rude in challenging this.

I'm probably out of time, but I'd like to ask one specific question. We've heard that the CBC is actively lobbying to have themselves excluded. Can you verify that in any way, or have you even heard that the CBC is trying to be excluded from the bill?

Mr. Ralph Heintzman: The government has recently received a letter from the head of the CBC asking that they not be included in this bill.

The Chair: Can you define “government”, please?

Mr. Ralph Heintzman: By memory, I think the letter was sent to the President of the Treasury Board, the Secretary of the Treasury Board, and a third officer, I can't remember who.

À (1030)

The Chair: I'm sure we'll be able to get a copy of that letter... We will.

Mr. Shepherd.

Mr. Alex Shepherd: As I read through this bill, I see the penalties for wrongdoing, and I see similar penalties for wrongful whistle-blowing. I think what escapes me is the incentive for an employee to opt into or to buy into this process, because there seems to be no particular reward. In fact, there seems to be a penalty that is equal to a penalty for somebody who possibly committed a wrongdoing. I'm thinking of the elevation. There's a superior structure there, so this person could be making more money and have a more powerful position.

What is the incentive for an employee to do this in the first place?

Mr. Ralph Heintzman: Frankly, I don't think public servants need any incentive. Public servants are motivated--that's why they're in the public service, on the whole--to serve the public good and the public interest. Where they see situations that they think fall short of that, particularly significantly short, I think their own values and ethics will motivate them to bring those situations to the attention of people. There already are significant numbers of persons who every day, to their senior officer or to the public service integrity officer or in other ways, are bringing forward situations that need correction.

Mr. Alex Shepherd: It just seems to me that from an employee's point of view, this is an onerous process, a time-consuming process. It may well involve expense to them personally, in time after work, going to hearings, and so forth. There seems to be a certain amount of cost involved, and yet there's no talk in here about reimbursing people for any out-of-pocket expenses they have with this process.

You say their professionalism will provide them with the incentive to come forward, but if governments are concerned, especially in the fiscal area, about how much money we're losing on something, it seems to me that if somebody were prepared to come forward and help us to be more efficient, to point out an inefficiency, they would provide a reward or an incentive bonus, as big corporations do, for people who did that.

There's no thought of doing that in this legislation?

[Translation]

Ms. Michelle Chartrand: No.

[English]

Your question is a very good question. What's in it for somebody who's doing all that, who's taking it all on his or her shoulders, who's having to face media reprisals? You're absolutely right about that. I think this piece of legislation was needed for a very long time. A lot of people have asked for it. Probably the context is right to do this piece of legislation. What it would provide the employee with is really protection against reprisals, strong protection. If there was a loss of salary, say, because the person was fired, there is in the legislation a provision to make sure the person could be reimbursed through

[Translation]

the Public Service Staff Relations Board or the Canada Labour Relations Board. I don't know what they are called in English.

[English]

That's all. It's their own conscience, and probably their discomfort in a very difficult situation, that will make somebody decide to go forward to whistle-blow.

Ralph shared with me one day that

[Translation]

studies had been conducted

[English]

on what type of personality goes forward with this type of information. It takes a very special type of personality, obviously.

So what we can do is make sure that we're providing the right framework to support the person, but we cannot provide incentives; it could send the wrong message.

Mr. Ralph Heintzman: On your specific question about out-of-pocket expenses, there is a provision in paragraph 16(6)(e), under the reprisal protection regime, where the administrative tribunals, either the PSSRB or the CIRB, could order an organization to repay out-of-pocket expenses.

Mr. Alex Shepherd: You first of all put forward the theory that the integrity of people in the civil service would by nature bring them forward, and then you told me it would take a special person to come forward. So that tells me that's not the case. In other words, the norm is not to whistle-blow.

That said, I guess I'm captured by the fact that I was involved in the Radwanski issue, where a lot of taxpayer money went out the window in a lot of cases. Why would you not give that person a pecuniary incentive to try to bring that forward to government?

À (1035)

Ms. Michelle Chartrand: First, I would like to add to the two reasons Ralph and I gave on why somebody would come out with this kind of thing. There is also probably a third reason, as I mentioned earlier, and that's the level of discomfort the person can't live with any more in a situation. That's not something to deny, I think.

Why would... You know, we discussed why with deputy ministers, with crown corporations, and with unions in our consultation. It's very risky, because we could give the message that... You could come forward and we could later discover that it was unfounded, done in bad faith, and frivolous. We could be encouraging people to do things that we don't want to see happening in our institution.

[Translation]

We are not encouraging people to become informers.

[English]

I don't know how to translate this word, délation, into English. You probably have a word in English for that.

Mr. Alex Shepherd: I understand what you're saying. I guess the model I have in the back of my mind is General Motors. They have an incentive bonus system. If the production system or something like that could be made more efficient and you put in a suggestion for it, they give you a reward for doing that.

Your legislation is very specific about vexatious wrongdoing, so there is a penalty for being erroneous here, but there doesn't seem to be any particular reward for having been right. That's just an observation.

There seems to be a problem about the definition of wrongdoing in the first place. It talks about the Treasury Board preparing a code of ethics, but you're telling me there is no code of ethics now. In other words, we're saying you have to comply. One of the things about wrongdoing is that you have to comply with a code of ethics of the Treasury Board, but there isn't one.

Shouldn't the code of ethics be brought forward before we talk about passing the legislation?

Mr. Ralph Heintzman: Perhaps I can clarify that. There exists a code of values and ethics for the core public service. A breach of that code is part of the definition of wrongdoing in the current policy on internal disclosure. Now that we're talking about creating legislation that covers the whole federal public sector, not just the core public service, there will be a need to create a new code of conduct for the entire federal public sector.

Obviously, that will have to be something slightly different. We don't know yet how different. There is currently a code, but there will need to be a new instrument created to cover the full federal public sector.

Mr. Alex Shepherd: When is that going to happen?

Mr. Ralph Heintzman: Well, I guess we'll see what happens to the legislation.

Mr. Alex Shepherd: After we do this, then we're going to define the code. Is that it?

Ms. Michelle Chartrand: Yes, and present the code before Parliament.

The Chair: Mr. Forseth, please.

Mr. Paul Forseth: Thank you.

I'd like to go back to page 11, clause 24, specifically looking at the wording that says the commissioner “may not deal with a disclosure”. Upon reflection, my interpretation of the wording, that the commissioner “may not”, means it's optional. The wording is a problem, because in English, “may not” can be exclusionary. So there should be wording such as “may or may not”, or “may decide to or not”. I think there's a problem there, and I would like clarification on that.

I take it that the intent is that the commissioner might decide not to proceed because there is some other mechanism going, but that it is the commissioner's choice, his evaluative choice. And yet when I see the words “may not”, it could be interpreted as meaning he has no choice.

So which is it?

À (1040)

Mr. Ralph Heintzman: There is a distinction to be made between clauses 24 and 25. In clause 25, the commissioner has discretion. He can decide whether or not to accept and investigate a disclosure. In clause 24 as currently drafted, he would not have that discretion. He would not be able to accept a disclosure if a person or body acting under another act of Parliament was already dealing with it.

Mr. Paul Forseth: Then the word “may” should be replaced with the word “shall”, so that it would read, “The Commissioner shall not deal with a disclosure”. That makes it clear. Otherwise, you have an arguable point there. I think that's something that we'll have to look at. Maybe you folks can do some further questioning on that.

Going back to page 10, clause 21:

The Commissioner carries out investigations for the purpose of bringing the existence of wrongdoings to the attention of chief executives and making recommendations concerning correctives measures

That is the response, or their main work. If something wrong is reported, the commissioner—after all evaluative processes—says, “Yes, there is something wrong here”, and goes back.

But also, is there anything in the bill or whatever saying that the commissioner can't tell the public at the same time that they are responding and giving some directions, or that maybe this is given in the form of a memo of advice, or whatever, so that it can also be public? Can you guide me to other sections of the bill that would intend that the public may not know? This point was brought up earlier by Mr. Martin, I think, because the whole working of this is, does the public know what's going on? They don't know what they don't know.

So maybe you could just talk a bit about the workings of the response, and the public's part in that, in clause 21.

Mr. Ralph Heintzman: At the moment, there are two provisions in the bill for public reporting. The commissioner is required to prepare an annual report. The bill is quite specific about what that report must cover to let Parliament and the public know the number of allegations that are made; whether they've been investigated; what was found; what the status of those investigations is; and have the recommendations been acted on, and so on. So there is a provision for that kind of annual public reporting.

There's also a provision for special reporting. As the minister pointed out earlier, the commissioner can, at any time, prepare a special report for Parliament on a specific issue that he or she thinks requires Parliament's attention. There are those two forms of public reporting.

On the question of public reporting on each investigation that the commissioner or a senior officer might undertake, I think there are good reasons why the committee might want to consider why it would not be advisable for those to be a public matter. The simple fact is that a very, very large proportion of allegations, when they're investigated, turn out not to be founded. In the two years of his operations and the over 100 allegations that he's investigated, I think I'm correct in saying that the public service integrity officer has not yet concluded a specific case of wrongdoing. Whether I have the exact numbers correct is really not the point. The real point is that a very large number of situations that will be alleged to be wrongdoing, and that will be investigated, will be found out not to be wrongdoing. Having that as a public matter at all times would not be fair to all of the persons involved in those investigations, or could be considered not to be fair—and not to be fair to the organizations involved either.

That's part of weighing the balance here: how to be fair and ensure that investigations are properly carried out, but also to ensure that the rights of all of the other persons involved in the process are also looked after.

Mr. Paul Forseth: But my point was that the commissioner had already decided that indeed there was wrongdoing, not that there might be. It is for the “purpose of bringing the existence of wrongdoing”—yes, he's decided that there was—“to the attention of chief executives”, and responding and making recommendations for remediation saying, “This is wrong, and this is what needs to be done”.

Is there anything in the bill that says those kinds of directions cannot be made public?

À (1045)

Ms. Michelle Chartrand: Yes, in clause 29, per Ralph's point on the article. If the commissioner thinks he has prescribed some corrective measures that were not applied, he could directly advise the minister or the crown corporation's board of directors. After that, if that doesn't work, at any time, as Ralph just pointed out, he could prepare a special report on this specific situation and present the report on that specific situation—where corrective measures were not taken—to Parliament.

Mr. Paul Forseth: I just hope, because so many areas of discretion are under Public Works, that this person doesn't come through the Minister of Public Works, because there's so much that's involved in that ministry.

I'll just ask one more question, and it's related to clauses 22 and 23, where we previously talked about the ability to.... The bill outlines where the public service has to cooperate with the commissioner, but if we get a final impasse, if despite what the bill says--that we must cooperate and provide material--there is a refusal and there's a fundamental disagreement, how do you envision the fundamental disagreement to be resolved? The commissioner says, I want this material. The bill says yes. Still, for some reason it's not being provided. There are certain rationales, and you have a fundamental difference.

What was contemplated as to how to resolve that?

Mr. Ralph Heintzman: There are a variety of mechanisms provided in the bill to address situations where there's a disagreement. One of them is that the commissioner or the senior officer can elevate consideration. That is to say they can go to a higher authority--the minister or the board of directors of a corporation. If those avenues don't work to resolve a disagreement, that is one of the reasons the bill provides for a special report to Parliament. That gives the commissioner quite a significant power, because any situation the commissioner encounters, whether it's a disagreement between him and an officer of the government, either about an investigation or about a recommendation...he would be able to apprise Parliament of that matter, and that would be a very powerful event.

[Translation]

Mr. Roger Gaudet: I have a question that is both simple and complicated. What are you going to call the people who will be assuming these duties in each department? The commissioner is called the Public Sector Integrity Commissioner, but what will you call the officers in each department and crown corporation?

Mr. Ralph Heintzman: The senior officer.

Mr. Roger Gaudet: Will there be any relationship between the senior officers and the commissioner? How will they be connected?

Mr. Ralph Heintzman: The ties probably already exist. It will involve exchanging information, training, and comparing practices between the two levels, but there will also be investigations. The commissioner or the officer may, from time to time, as is now the case, ask the senior officer to investigate something for him because he is in a better position to do so or because the officer feels that the matter relates to his own duties. Therefore, the two organizations already work closely with one another.

Ms. Michelle Chartrand: There is already a network, if you like.

Mr. Roger Gaudet: That's right. My question will go a little further. Would the officer in each department, through the commissioner, be made aware of all of the disclosures that have taken place within a department? For example, let's say that something is disclosed within a given department or crown corporation; would the commissioner be made aware of that?

Mr. Ralph Heintzman: I wouldn't say that he would never be made aware of it. He might eventually be told, but he would not be automatically apprised of everything that takes place within the departments.

À (1050)

Mr. Roger Gaudet: My question relates to what we have recently learned about the sponsorships. An internal audit claimed that everything had been checked, that things had been corrected and that all was well, but three or four years later, we learn that it was not the case. That is what I fear. If the commissioner is not on top of everything, this does not mean that he will investigate every disclosure, but if he is not aware of what is happening, in a crown corporation or a department, that a person has blown the whistle on a given activity... It might have been taken care of—I agree with you—but he should be made aware of it, otherwise, we may see a recurrence of what is happening today. I am not saying that we need to publicly detail every occurrence within a department, but there should be something in the reports. Then, later on—5 or 10 years later—there will be evidence to prove that the public servants did their job.

Ms. Michelle Chartrand: There are two aspects to your question. The senior officer who hears an employee is bound by the rules of secrecy, obviously, and these people must remain anonymous. That does not mean that the senior officer cannot have a conversation with the commissioner, without naming names... Do you see what I mean?

Mr. Roger Gaudet: That's what I am getting at: he must be kept in the loop.

Ms. Michelle Chartrand: On that, we agree.

Mr. Roger Gaudet: I am not saying that he should know the name of the person...

Ms. Michelle Chartrand: Absolutely not.

Mr. Roger Gaudet: ... but he should be aware...

Ms. Michelle Chartrand: ... that something is happening.

Mr. Roger Gaudet: ... that something unusual is happening.

Ms. Michelle Chartrand: It is obvious that with that type of network, things will be said, and not only will they be said, but they will be put in writing once a year, with the details, the content of the complaint, the type of complaint, the source, etc. The Commissioner will deal with all of that in his annual report, without, obviously, naming names. The relationship that will develop between the commissioner—who is already serving—and the senior officers, represents the balance between maintaining anonymity while, at the same time, being aware that something serious is happening and that they are on top of it. I believe that is what you are saying.

Mr. Roger Gaudet: If the commissioner knows about it, at some point, when he has the time, he might take a specific file, and, as Dufort would say, “go fishing”, to see if everything has been settled and done properly. Otherwise, we will have the same situation that we are witnessing today. Nobody ever knows anything, but things still manage to get out, and the civil servants are the ones who blow the whistle, not the...

Ms. Michelle Chartrand: Incidentally, the act does stipulate that when the commissioner inquires into an act of wrongdoing and discovers something additional—which can happen: you start to scratch the surface and you see that it is much deeper—than he is authorized to continue the investigation on the second wrongful act, because these things are never simple. There is a clause that provides for such a situation.

Mr. Roger Gaudet: That is why— [Inaudible—Editor]— headquarters, saying that if an investigation was required, it should be carried out, without waiting for anyone's approval.

Ms. Michelle Chartrand: You will find that in clause 26. It is clear that if there are reasonable grounds to believe that another wrongdoing has occurred, he must continue.

Mr. Roger Gaudet: Thank you. That's all for the time being.

[English]

The Chair: A matter of clarification from Ms. Yelich.

Mrs. Lynne Yelich: Yes. I just want to add that I was making a comparison with the information officer. I was thinking of some of the problems that he and his office had with ministers; specifically, he had a difficult time getting information that they would not allow. Also, he said that having exemptions was something that made his job rather difficult and sometimes even frustrating. But the frustrating part of his job was definitely dealing with ministers.

So that's where I was coming from in making the comparison of, how will this particular officer be able to overcome those difficulties if all he answers to is the minister? At least other officers get to come to parliamentarians or come to a committee, but this one will just be dealing with the minister.

I just wondered.

Mr. Ralph Heintzman: I don't think you should assume that because the commissioner reports officially to Parliament through a minister, the commissioner would not be available at any time to speak to this committee or to any other committee. Clearly, that would be entirely possible, since the point of his report is that it be tabled in Parliament. Indeed, the notion of the special report is that it encases the kind of case of disagreement that you're referring to, so that he or she would be able to notify Parliament of that disagreement.

À (1055)

Ms. Michelle Chartrand: One example, if I could add, would be the Public Service Commission, which provides Parliament with a special report and an annual report through the Minister of Heritage. It's through the minister, and the minister doesn't make any changes. I spent two years in the PSC as commissioner and I know it's through the minister. But it is an independent report to Parliament. So the same process will apply here.

Mr. Paul Forseth: When are we going to know which minister it's going to be?

Ms. Michelle Chartrand: After the legislation is adopted, I would say.

Mr. Paul Forseth: Well, there's got to be a plan.

The Chair: That's true.

Mr. Ralph Heintzman: Mr. Chair, would you like me to speak to that last question?

Just to explain the rationale, the bill provides for two ministers. One is the minister for the Public Service Human Resources Management Agency--that's our minister--who is responsible for the policy domain of disclosure. Another minister is named, other than the minister responsible for the Public Service Human Resources Management Agency, through whom the commissioner will report. That's to give assurance of independence, both in practice and symbolically. That is to say, the commissioner will report through a minister other than the minister responsible for his policy area.

So the government will need to know who is going to be the minister responsible for the Public Service Human Resources Management Agency in order to ensure that the other minister is somebody else.

Mr. Paul Forseth: And that hasn't been decided yet?

Mr. Ralph Heintzman: There is currently a minister responsible for the agency, but when the nomination is made you will need to know who the minister for the agency is so the governor in council will have the opportunity to ensure that the minister through whom the report is made is somebody else.

The Chair: If I may, under clause 8 on wrongdoings, one is gross mismanagement, not just mismanagement. Paragraph 8(e) describes a serious breach of a code of conduct, versus simply a breach. All of the other wrongdoings are not complemented by some adjective. Why do we have an inconsistency in the drafting of wrongdoing?

Mr. Ralph Heintzman: I think the question here is to create some kind of threshold at which something becomes serious enough that it needs to be dealt with. In fact, adding the word “serious” was a recommendation of the external working group on disclosure. So by including the word “serious” we're following the recommendation of the working group.

The thinking there is that it's easy to break a code in a kind of minor way every day. If I'm rude to my staff, I am actually breaking the code of values and ethics of the public service, because that's contrary to the values and ethics code. But that's probably not the type of wrongdoing that would be worth reporting if it were just an occasional thing.

So a threshold needs to be established where something becomes worth investigating as a wrongdoing. I think the same logic applies to gross mismanagement. This is something the courts have looked into, particularly in the U.S., and have used as a threshold.

The Chair: We're almost out of time. I'm sure we're going to pursue this one a little bit further.

There is liberal use of the word “may”, for instance, “a public servant may report”. In most professional codes of conduct and ethics there is an obligation, “shall”. If you do not report, and it's subsequently determined that you knew, you would be equally culpable as the person who had committed a wrongdoing.

Why is this bill permissive at the discretion of a public servant?

Okay, your hesitation tells me we have to find out a little bit more about that.

There was a question earlier about why a third-party public person cannot give information to the commissioner. I can only assume that where there is a wrongdoing or an allegation of a wrongdoing, the commissioner is going to have all the tools necessary to get all the information absolutely necessary to determine the facts and pursue a timely and effective resolution without reprisals.

Are you comfortable that there are mechanisms within the act to permit and not frustrate the resolution of wrongdoings?

Á (1100)

Mr. Ralph Heintzman: I'm not sure that I fully understand the question.

The Chair: Well, if somebody outside the civil service has information that is relevant or can corroborate... Was your earlier answer that he could not consult with a public person?

Mr. Ralph Heintzman: No, the commissioner can seek information related to wrongdoing in the public service wherever he or she may need to do so.

The Chair: If a person, someone not in the public sector, became aware of information that could lead to the discovery of a wrongdoing, is the intent of the proposed act to permit a public person to bring that information to the attention of the commissioner?

Mr. Ralph Heintzman: As currently drafted, the bill doesn't provide for external disclosures of wrongdoing; it does provide for disclosures of wrongdoing by public servants about wrongdoing in the public service.

The Chair: Finally, earlier there was a suggestion that this bill should be for the protection of public servants, and, as someone else was saying, this is for the protection of the bureaucracy, the ministers, the deputies, etc. It's almost like the employer and the employee. Is the intent of the proposed act to somehow protect one of those groups over the other, or is there someone else for whom this proposed legislation has been brought forward to represent their interests? Who is it for?

Mr. Ralph Heintzman: I think the attempt in the bill—and I say attempt; it's for the committee to see if the balance is right—is to find the right balance between the rights, obligations, and duties of all persons involved in the process. For example, if you look at paragraph 20(e), which has to do with the commissioner's responsibilities, one of his responsibilities is:

ensuring that the right to procedural fairness and natural justice of all persons involved in investigations is respected, including persons making disclosures, witnesses and persons alleged to be responsible for wrongdoings;

The Chair: Okay. It's unfortunate that it's “we” or “they”, because I always thought the purpose of this legislation, and almost every other piece of legislation, is to be in the best interest of Canadians, and no one ever said that. It concerns me, because the balance really reflects a position that in fact is in the best interest of all Canadians.

If there is wrongdoing, regardless, it should be addressed in a timely and effective manner. That is for Canadians. And it doesn't matter whether or not there was a whistle-blower or whether there was a particular partisan bent to it; if the ultimate objective is to identify matters that are not in the public interest, they should be addressed, and this proposed act should be one of the tools available to us to address the public interest.

I'm sorry that all of a sudden this has been polarized into partisan interests and labour interests and employer interests, when in fact the Canadian public really has the primary interest.

Mr. Ralph Heintzman: Mr. Szabo, I draw the attention of the committee to the preamble, particularly the first three parts of the preamble. They speak specifically to the point you're making about the public interest and the confidence of Canadians in public institutions.

The Chair: Quickly, Mr. Forseth, and then we are done.

Mr. Paul Forseth: Thank you.

Does the commissioner need a specific complaint from an identified public servant to act, or can the commissioner act alone? The back part of that question is, what about a commissioner responding on behalf of the request of a member of Parliament?

Á (1105)

Mr. Ralph Heintzman: As the legislation is currently drafted, the commissioner's investigation begins on the basis of some allegation or disclosure. However, there is the case that Madam Chartrand referred to where if he is already investigating a matter and finds another wrongdoing that requires investigation, the bill authorizes the commissioner to pursue that other wrongdoing. But normally the investigative process would start with some kind of disclosure of wrongdoing.

Our interpretation of the bill at the moment is that this would include anonymous disclosures.

Mr. Paul Forseth: Okay. So it's like the police, who can't just go around investigating whatever they want without an identified complaint. They respond to complaints. You say that's obviously how it's going to happen under normal circumstances, but is the bill exclusionary in the regard? Will the commissioner need to have an identified public servant actually making a complaint before he or she has the authority to get going? Now if, serendipitously, an investigation turns up other collateral stuff, the bill states that a commissioner has the authority to pursue those trails, but in the bill as it is, it looks like there has to be an action first for the commissioner to get going. I am questioning that.

The other part of my question is, what if there is no public servant to make the allegation, but a member of Parliament comes forward after hearing all kinds of stuff about something and asks to have it looked into? Is that possible?

Mr. Ralph Heintzman: At the moment it is not, but it's something this committee could look at.

The Chair: Mr. Heintzman and Mr. Chartrand, merci bien. I think it's been a very good start for our review of Bill C-25, and I suspect we will have you back at the appropriate time.

On Thursday, Dr. Keyserlingk, the public service integrity officer, will be before us. As well, the representatives of the study group will allow us to let this flower unfold a little bit more this spring. Thank you kindly.

We're adjourned.