Proceedings of the Standing Senate Committee on
National Finance
Issue 32 - Evidence
OTTAWA, Wednesday, November 23, 2005
The Standing Senate Committee on National Finance, to which was referred Bill C-11, to establish a procedure for the disclosure of wrongdoings in the public sector, including the protection of persons who disclose the wrongdoings, met this day at 6:25 p.m. to give consideration to the bill.
Senator Joseph A. Day ( Deputy Chairman ) in the chair.
[ English ]
The Deputy Chairman: The Leader of the Opposition in the Senate, Senator Kinsella, is here with us. He is the opposition critic on the bill. He will be keeping a close eye on us. We also have the government sponsor of the bill, Senator Smith, here. We may have others arriving. I apologize, Mr. Heintzman, Ms. Graham and Mr. LeFrançois. The Senate sat longer than anticipated and we should go back at about 7:45 p.m. I do not think we will take up all that time, but normally we take evidence from our speakers and then we have questions for the people in attendance, if that procedure is acceptable to you.
I am a senator from New Brunswick and I am the deputy chair of this committee. Our chair is on the road today and is unable to be here with us this evening.
Without further ado, Mr. Heintzman, please lead off.
Ralph Heintzman, Vice-President, Office of Public Service Values and Ethics, Public Service Human Resources Management Agency of Canada: Thank you for the invitation to be with you today to assist you in your consideration of Bill C-11, the Public Servants Disclosure Protection Act. I am Vice-President of the Public Service Human Resources Management Agency and head of the Office of Public Service Values and Ethics. In that capacity, I have been the senior official supporting the President of the Treasury Board in the development of Bill C-11.
I am accompanied by two of my colleagues who have been part of the team supporting the President of the Treasury Board.
As you have invited me, I will make a few brief comments on the bill. I thought I would remind the committee of some of the sources, the history of this bill, its passage to date and what has happened to it. I will briefly address three issues that have been in the recent public debate and provide you with some information and factual perspective on those three issues.
It is important to remember that this Bill C-11did not just appear out of nowhere, a long series of reports and policy development lead to Bill C-11 and its characteristics. I will not mention all of them, but I will mention that about 10 years ago the Tait report, the Report of the Deputy Minister Task Force on Public Service Values and Ethics recommended the disclosure regime for the public service. It took a few years for that recommendation to take form, but in 2001, Treasury Board adopted a policy on interim disclosure that has been in effect since then. We have had a disclosure regime at two levels for about five years now: We have a public service integrity officer who already receives and investigates disclosures. He investigated 70 disclosures last year. We also have senior officers in every department and agency who receives disclosures in confidence, investigates them, and protects the identities of persons who make the disclosures. They investigated 90 disclosures last year.
In 2003, Treasury Board adopted a Values and Ethics Code for the Public Service, which sets out principles of public service and standards that public servants will be expected to live up to as well as specific rules in areas like conflict of interest and post-employment. That code has a disclosure feature. Any person who believes that they are being asked to do something contrary to the code can report to either the public service integrity officer or a senior officer in the department. The code supports the whole process of disclosure.
This bill builds on that experience as well as the precedents that have been created and improves them, strengthens them and gives them a legal framework.
It is important to remember the series of reports that led to the content of Bill C-11. Senator Kinsella's own bill in the Senate was an important step along the road to Bill C-11. The Public Service Integrity Officer's first annual report in 2003 made recommendations to the government. The Standing Committee on Government Operations and Estimates in the House made recommendations. Very significantly, the President of the Treasury Board in 2003, created an external working group on disclosure chaired by Kenneth Kernaghan, who is the leading Canadian scholar in the area of public sector/service ethics. The working group included a number of distinguished persons including Denis Desautel, the former Auditor General. The group reported in January 2004 and on February 10 the government committed itself to bringing in a bill in response to the report and based upon the report of the working group.
All of those things were contributing elements that explain not only why the bill exists, but why it is the way it is. I remind you also that the bill in its present form was introduced in the House in October 2004 and was studied in committee after first reading between October and June of this year. The committee held 27 meetings, heard from 52 witnesses, 21 organizations and considered 129 proposals for amendments of which they adopted 52. It has had very extensive study in the House and very significant changes in that process led to the decision in the House to establish a new public sector integrity commissioner, reporting directly to Parliament. That process decided that the RCMP would be included in the bill and all organizations would be required to have their own codes of conduct. The committee decided to introduce a provision for interim measures in the bill to allow for the temporary assignment of public servants to protect them if necessary during a disclosure investigation.
The committee also widened the mandate of the public service sector integrity commissioner to allow the commissioner to investigate information provided from persons outside the public service. The committee also rebalanced a number of the provisions relating to the access to information related to investigations.
A very extensive process and very significant change has been made in the House. Of course, it is important to remember that the bill came to you with unanimous approval of the House. All parties voted in support of Bill C-11.
Those are my comments on some of the history of the bill.
Perhaps I could take a couple more minutes to provide the committee with a little bit of perspective on at least three issues that have been recently discussed in public.
The first issue has to do with the question of whether or not there is reprisal protection in this bill. I think that senators will find that the reprisal protection regime is one of the most important parts of this bill. An entire section of the bill prohibits reprisals against someone for having made a disclosure in good faith and provides a range of options for public servants to follow if they wish to remedy any reprisal, which they allege to have been taken against them. It gives very extensive powers to remedy reprisals.
Clause 20(6) outlines the actions that can be taken to remedy a reprisal including:
( a ) permit the complainant to return to his or her duties;
( b ) reinstate the complainant or pay damages to the complainant in lieu of reinstatement;
( c ) pay to the complainant compensation in an amount not greater than the amount that, in the Board's opinion, is equivalent to the remuneration that would, but for the reprisal, have been paid to the complainant;
( d ) rescind any measure or action, including any disciplinary action and pay compensation to the complainant in an amount not greater than the amount that, in the Board's opinion, is equivalent to any financial or other penalty imposed on the complainant; and
( e ) pay to the complainant an amount equal to any expenses and any other financial losses incurred by the complainant as a direct result of the reprisal.
The second issue concerns the features of the bill that allow certain information about disclosures to be kept confidential for a period of time. That is to say, it allows a discretionary exemption from the Access to Information Act.
The report of the working group to which I referred recommended to the government that the bill include a mandatory exemption from the Access to Information Act, and it did so for the reason of encouraging people to make disclosures. The reasoning was that ordinary public servants would not feel comfortable coming forward to provide information to make disclosures if they felt that information, and information that could lead to identifying them, could then become public through the Access to Information Act. The working group recommended that there be a mandatory exclusion from the Access to Information Act.
The government in its wisdom decided not to go that far, but rather to provide a discretionary exemption. In the original bill, they followed the model that is followed for a variety of other investigative bodies.
There is a list of ten investigative bodies that appear in a schedule to the regulations to the Access to Information Act that have this kind of discretionary exemption. It includes the RCMP, CSIS and a number of other investigative bodies to protect the integrity of investigations and allow them to be carried out effectively.
The government in the original draft followed the same pattern as had been followed for those other investigative bodies; that is to say, included a discretionary exemption for up to 20 years.
There was a great deal of public discussion and debate about that and the House committee decided to reduce that time to five years, but decided to maintain the discretionary exception. ``Discretionary'' means that it can be exempted, not that it has to be exempted. That was done in order to accomplish the objectives that the working group set out, that is, to encourage people to make disclosures and give them the guarantee that information and their identities would be protected to ensure that investigations could be properly carried out, as is the case for the other investigative bodies.
Another consideration was the fact that many allegations, indeed most allegations of wrongdoing, in our experience, turn out not to be founded. Of the 70 allegations of wrongdoing investigated by the commissioner last year, only three were founded cases of wrongdoing. In the case of the 90 allegations of wrongdoing investigated by senior officers in departments and agencies, only 15 were found to be founded.
It is very important for the Senate to keep in mind, that many disclosures of wrongdoing, when properly investigated, turn out not to be wrongdoings at all and, therefore, there is some reason for them to be properly investigated before they become public.
The final issue that I would like to comment on is public information. It has been suggested in a number of comments that some of the features of the bill would mean that no one would ever find out anything about wrongdoing or investigations of wrongdoing. I would like to note a couple of things about the bill in that regard.
First, the commissioner, like the current Public Service Integrity Officer, will report annually to Parliament on all of his investigations, and the bill does set out a number of things that he must include in that report, including any findings that he has about systemic situations in the public service that might be leading to wrongdoings. There is already an annual report prepared on disclosures and investigations in departments, and that will also continue to be prepared for Parliament.
Further, Bill C-11 provides for the commissioner to make special reports to Parliament. The commissioner would be able to bring to Parliament any situation that he or she feels is worthy of Parliament's attention.
In addition, the bill contains an important and significant override power. That means that despite the normal confidentiality, privacy and security of information restrictions, the commissioner would be authorized by Bill C-11 to make any information known to Parliament if he or she judged that it was necessary and that it was in the public interest to do so.
The commissioner would have complete and extensive powers to make information known to Parliament, despite any restrictions. He would have that kind of override power to be used in any circumstance where he felt it was necessary for that information to be brought to the attention of Parliament and that it was in the public interest to do so.
That is some background on the bill and some information on those three key issues. I am sure that senators have other issues they would like to explore.
The Deputy Chairman: Thank you. That was a good initial overview.
Senator Kinsella: It would be helpful if you would explain what you envisage would be an occurrence under this bill from the moment that a public servant thinks that he or she is observing illegal or unethical activity. Walk us through the steps that a public servant who wants to do the right thing would do, and identify, perhaps by clauses of the bill, how it would unfold.
Mr. Heintzman: Senator, I hope you have received our briefing notes. Two charts included in the briefing books lay out how the processes would work, both for disclosures of wrongdoing and for complaints of reprisal. It is at tab 2 of your book.
Under this bill, public servants would have a variety of options. They would be able to make a disclosure to their superior. They could go to their superior and say, that something is going on that is not quite right and ask for it to be looked into. If they did not feel comfortable doing that, or if for some reason that was not the appropriate thing to do, they would have two other choices.
Senator Kinsella: In order that we can follow your outline, please indicate the clause.
Mr. Heintzman: Clause 12 is a good place to begin. It says:
A public servant may disclose to his or her supervisor or to the senior officer designated for the purpose by the chief executive of the portion of the public sector in which the public servant is employed any information that the public servant believes could show that a wrongdoing has been committed or is about to be committed, or that could show that the public servant has been asked to commit a wrongdoing.
There are a couple of things worth pointing out in that clause. First, the public servant who makes a disclosure is not an accuser. The public servant does not have to be certain that there is wrongdoing taking place; he or she simply has some information that could be relevant. That is a very important nuance to keep in mind because some of the public discussion seems to assume that a person who makes a disclosure does so in the role of an accuser as opposed to being a witness. Once the public servant passes on their information the responsibility passes to the shoulders either of the senior officer or, as we see in clause 13, to the commissioner. If they did not want to do that, they have the option set out in clause 13, as follows:
(1) A public servant may disclose information referred to in section 12 to the Commissioner if
( a ) the public servant believes on reasonable grounds that it would not be appropriate to disclose the information to his or her supervisor, or to the appropriate senior offer, by reason of the subject-matter of the wrongdoing or the person alleged to have committed it;
( b ) the public servant has already disclosed the information to his or her supervisor or to the appropriate senior officer and is of the opinion that the matter haws not been appropriately dealt with;
In other words, it is kind of an appeal process. If they made an internal disclosure which was not adequately investigated, in their opinion, then they can refer it to the commissioner a second time. There is a feature of the bill that allows an organization that is too small to simply say that they will not name a senior officer, and the Public Service Integrity Commissioner then fills that role.
You can see in clause 14 that if a disclosure concerned the Office of the Public Sector Integrity Commissioner, if the wrongdoing was going on in his office and therefore it was not appropriate to make the disclosure to him or to her, then a disclosure could be made to the Auditor General.
Clause 16 sets out the circumstances in which a public servant would also be authorized to make a public disclosure.
16. (1) A disclosure that a public servant may make under sections 12 to 14 may be made to the public if there is not sufficient time to make the disclosure under those sections and the public servant believes on reasonable grounds that the subject-matter of the disclosure is an act or omission that
(a) constitutes a serious offence under and Act of Parliament or of the legislature of province; or
( b ) constitutes an imminent risk of substantial and specific danger to the life, health and safety of persons or to the environment.
Clause 16 intends to reflect the protections that already exist in the common law. The bill also ensures that none of the rights that they already enjoy to make public disclosures are taken away by this act. Clause 16(2):
(2) Nothing in subsection (1) affects the rights of a public servant to make to the public in accordance with the law a disclosure that is not protected under this Act.
The courts already recognize in certain circumstances that it is legitimate and legal for public servants to make public disclosures. Clause 16(2) ensures that nothing in this act takes away from that.
I would point out to you that under the definition of ``wrongdoing,'' one of the grounds of wrongdoing is a reprisal. For reprisal complaints, a public servant has two avenues to pursue. There is a chart under tab 2 that also shows how that would work. They can make a disclosure either to a senior officer or to the commissioner about a reprisal that has taken place because a reprisal would be a wrongdoing. There would be certain advantages to them to do it in that way because of the speed, simplicity and confidentiality with which such an allegation could be investigated and remedied.
If they do not want to pursue that route, or if they have already done so and they do not agree with the finding of the commissioner, or a chief executive has not accepted the recommendation of a commissioner, they can apply to one of the existing administrative tribunals, the Public Service Labour Relations Board or the Canada Industrial Relations Board, for an enforcement order. You can find that in clause 20.
Clause 19 states:
No person shall take any reprisal against a public servant.
Clause 20 lays out the way in which allegations of reprisal can be made to a board and orders for remedy can be given, as under clause 20(6), which I already read out to you.
Senator Kinsella: It is clear that clause 19 is speaking of the disclosure under the avenue of clause 12 or clause 13.
Mr. Heintzman: Yes, and also clause 16. A person who makes a public disclosure under this act would also be eligible for the reprisal protection regime.
The Deputy Chairman: Senator Kinsella, would you forgive me for interrupting you? I will come back to you later. The Honourable Diane Marleau has been able to join us. We very much appreciate you drawing yourself away from that other place and coming here, knowing that we are all in a very difficult time. I thought I would call upon you if you had some remarks. You will forgive us if we started before you were able to arrive but the floor is yours.
Hon. Diane Marleau, P.C., M.P., Parliamentary Secretary to the President of the Treasury Board and Minister Responsible for the Canadian Wheat Board: I will not speak too long because I imagine you have already had quite a description of this piece of legislation. However, I will tell you that we set out to have the best possible piece of legislation.
As the parliamentary secretary, I was privy to many discussions with the minister. However, the minister gave me orders that we were to be as flexible as possible. I took that to mean that we would amend the bill to make it fit. We wanted to ensure that people were protected and had independent avenues to pursue.
I was somewhat dismayed when I read the press reports and realized that they spoke about an old bill and not the bill that was passed, unanimously by the way, in the House of Commons.
Is it going to be a perfect bill?
[ Translation ]
You never know. It is very difficult to bring in legislation like this for Government of Canada employees. There are not many other countries that have similar legislation. Some do, but it is written differently. We have tried to do the best we could. With all the proposed amendments, we have made major changes. The minister agreed to change the way complaints were handled so that the person could go directly to an independent commissioner who would report to the Parliament of Canada. So we have made sure that everything was right.
I am now ready to take your questions. Mr. Heintzman and I have worked very hard on this bill. We have prepared a large number of amendments and we are proud of the result. I hope that we will be able to see it passed and thereby make sure that our staff is protected.
The Deputy Chairman: Thank you very much for your comments, Ms. Marleau. I know that you are very busy in the House of Commons, so if you need to go there, you may leave whenever you need to.
[ English ]
Senator Smith: Minister Marleau, in your opening remarks, you referred to press reports and perhaps you could clarify that statement. I know there were some stories from a public servant, who is described as the whistle-blower on the sponsorship problems. I understand he is going to find another occupational opportunity that he is pursuing and God bless him. Are these the stories to which you refer? We should clarify that. If the criticisms were based on pre- changes as opposed to after-changes, we should clarify that also.
Ms. Marleau: I read an article by Barbara Jaffe of the Vancouver Sun . I cannot tell you the date of her comments but I believe they were made after the unanimous passing of the bill in the House of Commons. I was surprised because the information contained in the article was not based on the piece of proposed legislation that we supported unanimously in the House.
Senator Smith: My question is for Mr. Heintzman, but either of you is welcome to respond. Mr. Heintzman, you referred to the three points, the first two points vis-à-vis reprisals. Your second point was about the confidentiality being maintained from 20 years down to five years.
Obviously, everyone would like to see a balance. When we learned of the 17, three seemed to be valid and bona fide. There were 15 out of 90, which would mean that about five or six were not in that category. I believe that you think it is balanced but I would like to hear more about it.
We want a system whereby actions can be categorized. For example, if someone has other agendas, such as malice, score settling, revenge, that would be in one category. Another category would be a simple error, without malice. Perhaps you could talk a bit about how that balance between these categories would work in a fair way and about your comfort level.
Mr. Heintzman: That is one of the things that government, the minister and the committee has been struggling to do create the right balance so that there is an adequate degree of openness and protection for identities, sensitive information and reputations. In fact, embedded in the bill is a principle of balance. The preamble states explicitly that the bill attempts to achieve a balance between two things: A public servant's duty of loyalty as defined in Canadian jurisprudence and his or her right to speak openly. A rich, legal tradition has defined the duty of loyalty that public servants owe to their work, as do employees of any organization. An internal disclosure mechanism tries to provide an avenue through which public servants can exercise their right of free speech to bring to light circumstances that should not exist in this or in any other organization. This is balanced with the other requirements their duty of loyalty, the need to protect reputations, the need for investigations to be effectively carried out without undue premature publicity and the need to ensure that someone's idea of a wrongdoing is properly tested before it is aired publicly as a supposed wrongdoing.
Senator, you mentioned the statistics that I quoted. It was only three-out-of-70, not 17, investigations that turn out to have a finding of actual wrongdoing.
Senator Smith: It was three-out-of-70 and 15-out-of-90.
Mr. Heintzman: People who think they see a wrongdoing are often mistaken. One of Dr. Keyserlingk's chief roles was to make people understand that they have a little piece of information but when put together with other pieces of information, the story might be somewhat different from what they thought it was.
One of the implicit protections that a measure of this kind can provide for public servants is the opportunity to have their instincts for a wrongdoing properly tested before they walk the plank. It is actually a source of protection for them.
Senator Smith: Do you have a statistic on whether there were clearly identified cases or incidences of malice, inappropriate intent, score settling or revenge?
Mr. Heintzman: To date, senator, there are few instances of that. The current Public Service Integrity Officer Dr. Keyserlingk says that in his work he has never encountered one such example.
Ms. Marleau: That is correct.
Senator Smith: I am glad to hear that.
Mr. Heintzman: On the whole, people are coming forward in good faith.
Senator Downe: I share the view of the parliamentary secretary that this is a good bill and that it is not perfect. I am concerned about one section. My concern relates back to the misunderstanding that could happen between the different levels of the public service and the protection available for those at the lower level of the public service versus those at the higher end who may be treated differently. To that end, I am interested in clause 29(3), which talks about the power of the commissioner.
One possible interpretation of that clause is that if there is wrongdoing at the most senior level of the federal government, that person might have to be contacted ahead of time before the commissioner can enter the premises, which might be a direct concern of theirs. They also have to be contacted if their concerns are at the lower end but if they are not involved at the lower end, they may not be as concerned.
Why is that different, for example, than the power that is given to the Auditor General who does not have to provide that notification?
Mr. Heintzman: I am not sure that I can answer your question right now. I do not recall comparing the commissioner's power to that of the Auditor General. If I recall, the key issue that we had in mind was to ensure that investigations could be properly and fairly conducted in an orderly way. There are prohibitions against obstructing an investigation, destroying evidence or doing anything to impede an investigation. There are also explicit legal requirements for cooperation on the part of chief executives and ordinary public servants to assist the commissioner in any investigation. The intent was to give the chief executive notice so that they would be in a position to ensure that that cooperation was forthcoming.
Senator Downe: I have already outlined the reasons for raising that question. As we know, in the current environment the Auditor General has become the benchmark of integrity. That is something that should be done, namely, comparing the powers and in the future you may want to modify that clause. The perception may be that if the wrongdoing is at the most senior level that person is tipped off that we are on the way over. It is like in the old days when you raided a bootlegger. The police called ahead of time and there was no liquor there when they got there. Evidence might be gone.
The Deputy Chairman: He is speaking from a Prince Edward Island experience.
Senator Downe: No, that happened before my time.
My last question pertains to a regional concern. I am wondering about the sensitivity of smaller parts of the public service that are in the regions of Canada, where it will be much harder to come forward and the protection is even more important. We have to ensure that people's careers are safe. We must be sure that other employees understand that they can come forward without recrimination. Is there any sensitivity to that concern?
Mr. Heintzman: You have a legitimate concern. It is a concern that we have attempted to do something about, although it is not a complete remedy. That is to say, because the commissioner, currently the public service integrity officer, is in Ottawa, because the senior officers of departments are normally in Ottawa, inevitably that means that persons who work at some distance from Ottawa will feel disadvantaged in having access to those officers.
The integrity officer and the senior officers have made significant I will not say adequate efforts to reach out to the parts of the public service located in other parts of Canada. They have reached out to make themselves known, to make sure that people know that they can be in contact and that these services are available to them.
We work closely with the senior officials and that is one of the issues that we discuss. We discuss what efforts the different departments are making to ensure that all employees know their rights, how to exercise them and where to go to exercise them.
I will not pretend that puts someone in Prince Edward Island on exactly the same footing as someone here at headquarters, and I think that is something we will have to continue to work at. Living in an electronic world, people are a lot closer in a virtual world than they once were.
Even in my role, people call me up about issues that they see going on in their departments or agencies. I get those calls from places other than Ottawa.
Senator Downe: I am pleased to hear that bears some consideration. One of the problems is that when you work in the regions you do not have the career opportunities you have in Ottawa. You cannot move from one department to another because there is no other department to move to. If you make an allegation here in Ottawa and it becomes uncomfortable, you could transfer to another department. I am glad that issue is under consideration.
Senator Kinsella: It is nice to see you, minister. Thank you for coming here this evening.
As you probably know, I support this bill and I believe in the principle upon which it is resting. I spent some time in the public service as well. We love talking about detail. We were walked through what happens from the time a public servant perceives that something is not quite right and he or she has two avenues to follow.
I like the principle that every unit of the public service should solve its own problems. If there is a problem, an opportunity should be given to good public administrators to resolve, based on solid public administration principles, the problems that are there.
It is terribly important that the anti-retaliation mechanisms be strong because whistle-blowing legislation is only as good as the protection given to the whistle-blower. It is a complaints-based process and it only works if complainants come forward. I am not at all surprised that under the policy model which was better than nothing, I suppose, but I was quite convinced at the time it would never work because you need legislation and I think it is proven by the point that only three or four of the disclosures, upon investigation, were found to be sustainable.
That speaks more to the quality of the disclosures of the 70. That is a quantitative indication of how many problems there may be. My argument for that goes back to our fair employment practices legislation and there were hardly any complaints.
Years ago, the federal and provincial labour departments rarely received a complaint of racism in the workplace, et cetera. The law was there, however. There was to be to no discrimination because of race under the Fair Employment Practices Act. Once we had a Human Rights Act, wherein we provided a commission or an agency as a matter of public policy that was in the public interest, that some entity would take carriage then, all of a sudden, you read in the annual reports there are hundreds of complaints and a lot of resolution that is achieved before going necessarily to a tribunal level. I think the elements are in this bill.
One way in which one can test pieces of legislation is through comparative analysis. The first bill you drafted and the minister brought in, as you said, received 52 amendments. I suppose that speaks to the diligence of the members in the other place. Obviously you did not come in with the original draft as the perfect document. I recognize that this is not perfect, either.
The new bill before us includes those 52 amendments. Should this become law, have you done an analysis as to how this stacks up against Australia, the United States or the United Kingdom, or those provinces like New Brunswick and Quebec where there is a little bit of whistle-blowing legislation in their public sectors?
Mr. Heintzman: In the course of policy development, we have looked at disclosure regimes in other countries. To be quite honest, I do not think that since the House of Commons finished its work in October that we have actually gone back and done a clause-by-clause analysis of the bill in relation to provisions in other countries. I am not sure whether that would pay off well because this is a unique regime. This goes a lot further in many ways than what exists in any other country of which I am aware.
I can make a few comparative comments if you would like. In the United Kingdom, the civil service functions under the Civil Service Code. That code sets out the constitutional relationship between the public service and ministers and the principles that govern them. Then, if public servants see or are asked to do something that is contrary to the code, they may make a disclosure.
They must, first, make it within their department. Once they have exhausted the internal route, they may go to the commissioners. In a sense, that United Kingdom model was a little closer to the original model of Bill C-11. In this sense, both structurally and in many other features, our model is much stronger. It contains a stronger definition of wrongdoing and a stronger reprisal protection regime. The commissioner has a more defined standing and more exclusive focus, and so on.
The situation in Australia is somewhat similar to the U.K. Their disclosure regime is imbedded in the Australian Public Service Act, which sets out values of the public service, a code of conduct for the public service and a disclosure regime. Disclosures can be made to the public service commissioner. Their model does not contain anything like the legislative richness of this particular regime.
The New Zealand regime is very sui generis . A number of persons are authorized, but there is not a single focus for the investigation of disclosure in New Zealand.
Senator Kinsella: Do any of those regimes have a mechanism of monetarily rewarding the whistle-blower in relationship to large savings of public funds? If they take on the burden and it is a heavy burden when one blows the whistle, even when there is a regime in place are there regimes where there is compensation? If the public servant saves a given department and thus the taxpayers hundreds of millions of dollars, is there some kind of recognition, if not in a monetary way, in some other kind of way?
Mr. Heintzman: We do not know of any disclosure or whistle-blowing regime anywhere in the world that has monetary compensation. There may be, but we do not know about it. This is a perennial myth about the United States, that the U.S. whistle-blowing regime involves monetary rewards or compensation for public servants who make disclosures or blow the whistle, which is not the case. The only statute that I am aware of that involves something of what you are describing is a statute that exists in the United States called the False Claims Act, which is a Civil War statute. Its goes back to the Civil War, Senator Smith.
Senator Kinsella: He fought with the South.
Mr. Heintzman: I know he is a man with a great interest in history.
Senator Smith: He knows I am a history buff.
Mr. Heintzman: That act enables an ordinary citizen, but not a public servant, who believes that some contractor is ripping off the government to sue the contractor. If the government chooses not to join the suit and if the suit is successful, then the ordinary citizen can keep a share of the proceeds. That does not apply to public servants making disclosures or blowing the whistle.
Senator Kinsella: Minister, we live in extraordinary times. We have before the Senate a number of bills that we have on the fast-track mode, to use the language from your House. In fact, this evening, we have several committees sitting with the desire to have those committees report on those four bills that were part of the fast-tracking decision. However, those bills have not been examined at all in the House of Commons in the sense that you did all stages at the same time.
In this bill, you have indicated, as has Mr. Heintzman, that there were 27 meetings, I think, of your committee, and the government was working hand in glove with all parties, and it was an all-party decision.
Ms. Marleau: That is correct.
Senator Kinsella: You heard from a large number of witnesses. Some of the representations that have been made to me as a senator from people knowing that we would be examining this bill went something like this, ``Because Bill C-11 was amended so significantly, we would like to have a chance to comment on Bill C-11 in its amended form.''
I am not overly convinced by that argument. The witnesses come before this committee to help honourable senators deliberate and analyze as carefully as we can the legislation, but we often do not go in the direction that a given witness would like us to go when we look at a piece of legislation. It is not necessarily axiomatic that we have to do that.
In this instance, I am of the view that I think the bill is a good bill. It is not a perfect bill, but I would not want perfection to stand in the way of the good. I sit on this committee as an ex officio member with a right of vote, and I hope to convince my colleagues that we would do what is happening in some other committees tonight, and having heard from the minister and from officials, that we would move to clause-by-clause and report this bill without amendment tomorrow in the Senate so that it could get third reading before what many people in town think will be the drawing to a conclusion of this House. It is happening with at least four other bills.
I am interested in this bill in a special way; I would like to get your support. We would take your bill, relying on your testimony and that of the officials that you had worked with all the other parties and with the witnesses. We are capable of reading the bill. I am interested to your reaction to that proposition.
Ms. Marleau: We would be quite honoured, those of us from the other place who worked on this legislation, that you would pass it. I also want to remind you that this is not the first piece of legislation. There was a previous bill in another House that had also had some discussion not the depth of discussion of this one, but it certainly had some discussion. There has been a lot of work on this bill.
With this legislation, we wanted to continue with the internal process in all departments, Crown corporations and agencies. We felt it essential that be in place in all departments. We felt that by allowing a whistle-blower to go directly to the commissioner, it would make each agency, Crown corporation, department, even more attentive to their own internal mechanism. If their own mechanism works very well, there will not be as much need for the person to feel they have to go directly to the commissioner. We established that kind of balance, and I think we did it quite well.
We insisted that all Crown corporations, including the RCMP, be a part of this legislation. It was incredibly difficult for our legislative people to come up with ways of ensuring that these kinds of bodies were included in the legislation. I do not think it was particularly well received by Mr. Heintzman when I said to him, ``I think you better find a way of doing it, because it will happen.''
All of us who worked on the committee from all parties are proud of this piece of proposed legislation. We listened to witnesses who had been involved in whistle-blowing and had been penalized for it. Being very practical, we used their experience to try to ensure that the conditions under which they were mistreated, not treated well or pushed aside were addressed.
Were we capable of addressing all their concerns? We tried. A review process is part of this proposed legislation.
I am anxious to see the bill in force because the public service needs it. The sooner we have it in place, the sooner we will have an independent commissioner and the better it will be for our public service.
We have a very good public service but there are times when problems occur and it is important to support our public service when it experiences problems. As legislation, this bill will do the trick, but not by itself. I also believe that the public service has to be educated in what this piece of proposed legislation means and how to use it.
You spoke of some of the other bills in place on discrimination and how people did not complain. Often, people did not realize that they had that available to them. A vital part of this will be how it is presented to the public service through an education process.
Senator Kinsella: That was the conclusion of this committee when it had before it and adopted a Senate whistle- blowing bill. During the hearings on that bill we heard from many witnesses. There is a body of knowledge on whistle- blowing in this committee so it has been easy for the honourable senators to review this bill. Indeed, we have been involved in some of the more difficult cases.
This bill, notwithstanding the events that surround us, is a good one and can be improved. We would be responsible in this chamber because of the knowledge that we have from the work that we have done, as Mr. Heintzman indicated, for a number of years now. I thank you, minister.
Ms. Marleau: I would like to add something for those who are worried about the regional aspect of this bill. Many of us on the committee were just as concerned as you are and that will have to be watched closely. Many of the regional offices are small. If someone is a whistle-blower in one of those offices, it may be difficult for that person to be protected. The commissioner and all of those involved in this process will have to be particularly careful in such cases because it might not always be evident how to protect a person in a small office when there is only one person. I am sure there are mechanisms in the bill to ensure that protection. God willing, it will be a very good bill and five years from now, or whenever, we will not have to amend it significantly but perhaps only tweak it a bit to make it perfect.
Senator Smith: I welcome Senator Kinsella's remarks. I know he has a personal interest in this subject for the reasons he stated. It was beneficial that the other place wound up with unanimous support and I sense that the Senate will go in that direction. The nature of this is such that it should be above partisanship, and I do not think there is any element of that here.
Senator Cowan: I wanted to explore the comments about balance made by Senator Smith. This proposed legislation is a work in progress and the concerns I had along those lines will be dealt with when we see how it works in its application.
The Deputy Chairman: Honourable senators, I would that we proceed with the witnesses present so that we might ask any questions. We will then adjourn for about three to four minutes to reconstitute the group.
Senator Kinsella: We have permission to sit and are not bound by the clock.
The Deputy Chairman: Are there additional questions of our witnesses?
Senator Kinsella: I want to pick up on the point that you failed to do a moment ago. The minister underscored the importance of an educational program surrounding this bill and I could not agree more. The record shows that we said the same thing when we had examined the Senate bill on whistle-blowing. We determined that the educational program was essential. It might be even more important because it is part of the cultural change. Unless you believe in innate ideas, most believe we know only that which we learn. The philosophy of why we do it and the manner in which it operates would have to be learned. I believe that Treasury Board would have that responsibility or would you see this as the role of the commissioner?
Mr. Heintzman: Senator, I would draw your attention to clause 4 of the bill, which is often overlooked. It is one of the most important clauses in the bill and is found under ``Promoting Ethical Practices.'' Clause 4 states:
The Minister must promote ethical practices in the public sector and a positive environment for disclosing wrongdoings by disseminating knowledge of this Act and information about its purposes and processes and by any other means that he or she considers appropriate.
The definition of ``minister'' in the bill is the Minister Responsible for the Public Service Human Resources Management Agency. It would be the responsibility of our office to undertake this promotion. Ms. Marleau's committee in the House has invited the President of the Treasury Board to appear to speak to the implementation process. They may have been anticipating your decision here tonight but the invitation was extended. Senator, we are very much in the process of ensuring that each public servant is aware of his or her rights and responsibilities under this act. Treasury Board has set aside some money to support that implementation and educational process.
The Deputy Chairman: Are there additional questions?
On behalf of senators, I thank you, Ms. Marleau.
[ Translation ]
The minister was here a few days ago and we know that he wants to see this legislation adopted. Mr. LeFrançois, thank you very much.
[ English ]
Mr. Heintzman, we saw one another a great deal when we dealt with Bill C-25, in respect of the public service reorganization. I am sorry we did not have questions for you, Ms. Graham, but we knew you were there backing up Mr. Heintzman and Ms. Marleau.
Mr. Heintzman: May I put on the record that Senator Smith and my brother were both born on May 16, 1941, in the interests of full disclosure?
The Deputy Chairman: Is there anything more we should know about the American Civil War?
It has been proposed by Senator Kinsella that we proceed at this time to clause-by-clause and report this bill back now, assuming that it is accepted by this committee this evening. Before I ask for a motion in that regard, I want to point out a number of things.
First, normally we will give notice that we are going to do this. We have not given notice. Second, we normally do clause-by-clause not on the same day as we have studied the bill and had witnesses.
We had a list of approximately 47 to 50 potential witnesses that had not been worked out by the steering committee. Is everybody satisfied that there is not significant opposition to this bill that we have not heard from?
Senator Harb: There is some urgency in this matter and this bill has had the unanimous support in the other House.
The Deputy Chairman: That always worries me.
Senator Harb: I think what we should do is move with it as efficiently as possible so we can meet the needs of those who are affected by this bill. Like every piece of legislation, after five years, in any event, it will come up for review.
In addition, should there be serious concerns with regard to certain aspects of this legislation, it does not exclude the government from bringing forward an amendment at some point in time, including the Senate.
My submission to you, chair, in light of the priority that has been put on this legislation, that we proceed with it. If it means for us to waive the rules through unanimous consent of the committee, I propose we do that.
The Deputy Chairman: You are quite right, Senator Harb; this committee is master of its own procedure and process. Even though it is our custom to give notice and have a separate day for clause-by-clause consideration of the bill, we can certainly waive that with consent.
Senator Kinsella: I think that is a good practice that I hope would be sustained, and that this would not be considered any kind of a precedent. The circumstance, as we all know, is that there are four other committees that will be doing exactly the same thing this evening.
This is a special circumstance. It is only because this committee I do not mean to say this the wrong way knows a lot about whistle-blowing legislation. We worked on it for a long time. As such, we have been able to go through this bill with a body of knowledge and understanding.
I agree 100 per cent with what Senator Harb is saying. If for some reason when this new regime is in place under this new bill, should something appear that either House missed, which comes up with all legislation, then an amendment is brought forward. I would suspect that the next government might very well come in with some amendments to this bill in the new Parliament.
I feel comfortable from that point of view.
In terms of the precedent, you are right, I am glad you placed it on the record, senator. Because other committees this evening are examining bills and will do clause-by-clause on those bills and report them tomorrow, the Standing Senate Committee on National Finance will not be acting out of line.
Senator Downe: I share the views expressed. When Senator Kinsella was out of the room earlier for a few minutes, I mentioned that in my opinion, the bill was good but not perfect. I shared the view of the parliamentary secretary on it.
Senator Kinsella is the resident expert on this matter in the Senate. The matter has been studied. Normally, the bills we receive here do not receive the consideration in the House of Commons that this bill has received; and I accept the argument that we are ready to proceed.
Again, if there is a problem, I made some suggestions during your earlier meeting, that should be included in any review. If there is a problem in a year or two, we can look at it again and take the necessary steps.
Senator Smith: There is the old phrase ``where there is a will, there is a way,'' and the way here requires unanimous consent. That is a pretty high benchmark; but you only get it when there is a consensus that it is in the public interest not to lose this opportunity.
I would point out that there were 113 witnesses from 76 organizations who were heard in the other place. There were 52 amendments that were agreed to as a result of that input. There were 20 moved that were rejected, that did not go through. There were another 50 that were withdrawn because good answers to the issues that had caused them to be moved in the first place were forthcoming. However, the end result was a unanimous vote in the House.
I do not think anyone is being prejudiced here. This is one of those instances that does not happen too often that people would be prejudiced if we lose this opportunity. Therefore, I think that it is appropriate for us to proceed as outlined.
The Deputy Chairman: I thank you.
Senator Cowan: I agree.
The Deputy Chairman: Honourable senators, I take comfort in the fact that we do have the Leader of the Opposition in the Senate, who is the expert in the Senate on this particular matter, who is here and is also the sponsor of the bill.
With that, and the comments you have made, we are dealing with Bill C-11, to establish a procedure for the disclosure of wrongdoings in the public sector, including the protection of persons who disclose the wrongdoings.
Is it agreed, honourable senators, that we proceed with clause-by-clause consideration of the bill at this time?
Hon. Senators: Agreed.
The Deputy Chairman: Is it agreed that the title shall stand postponed?
Hon. Senators: Agreed.
The Deputy Chairman: I will propose, rather than dealing with each clause, to deal with the clauses according to the table of contents at the beginning of the bill.
Is it agreed that the preamble shall stand postponed?
Hon. Senators: Agreed.
The Deputy Chairman: Shall the short title stand postponed?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clauses 1 to 15 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clauses 15.1 to 39.1 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clauses 39.2 to 56 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clauses 57 to 60 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall the Schedules 1, 2 and 3 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall the short title carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall the preamble carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall the title carry?
Hon. Senators: Agreed.
The Deputy Chairman: Honourable senators, shall the bill carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall I report this bill back without amendment to the Senate at the earliest opportunity?
Hon. Senators: Agreed.
Senator Harb: Will there be a motion to waive the rules?
The Deputy Chairman: Unanimously, by proceeding, we have waived the rules. It is in the minutes.
The bill will be reported tomorrow. If the chair is back, he will report the bill, and if not, I will do my best to stand in for him. We have to get the documentation finished.
Senator Kinsella: If we have to revert, that requires leave, and leave is not overly forthcoming these days.
On another matter, my understanding is that the draft report on your study is ready for members to review.
The Deputy Chairman: It has been circulated.
Senator Kinsella: Senator Oliver indicated to me that he would like the committee to meet to determine whether the committee wanted to approve the report so that it could be submitted to the Senate prior to the end of the week. I am here to ensure that that view is expressed.
The Deputy Chairman: I can tell you that the steering committee had six hours to look at it, and a number of points were raised regarding amendments. To move the matter along we asked that it be circulated, along with a copy of what we proposed as amendments. The document is 60 pages in length. They received it tonight.
As you know, several members of this committee are not here tonight as they are attending other committees. It would be unrealistic to assume that they would have it before.
Senator Downe: I agreed earlier to clause-by-clause consideration of Bill C-11 because of the work that had been done beforehand on the bill for many months and the work that had been done in the House of Commons. This accountability study is a different issue altogether because, as you have just indicated, we only received it in the last day. It is over 60 pages in length. It is a very good draft, but it is complex. I, for one, require time to reflect on it and refer back to some of the testimony we have heard from witnesses and review some of my files. I would feel uncomfortable reversing that. I do not want to put this committee in the position of rubber-stamping everything. I raise that as a concern. Other members of the committee may have different views.
The Deputy Chairman: Senator Cowan has not seen it. Senator Smith is not a normal member of this committee and the rest of our members are not here.
We have heard your point, Senator Kinsella, but you do understand the difficulties with this one. We do not like to rush reports.
The committee adjourned.
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