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37th PARLIAMENT, 3rd SESSION

Standing Committee on Government Operations and Estimates

EVIDENCE

CONTENTS

Tuesday, May 4, 2004

0905

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

Ms. Maria Barrados (Interim President, Public Service Commission of Canada)

0910

The Chair

Mrs. Lynne Yelich (Blackstrap, CPC)

Ms. Maria Barrados

Mr. Gaston Arseneault (Senior Counsel, Public Service Commission of Canada)

0915

Ms. Maria Barrados

Mrs. Lynne Yelich

Ms. Maria Barrados

Mrs. Lynne Yelich

Ms. Maria Barrados

The Chair

Ms. Monique Guay (Laurentides, BQ)

Ms. Maria Barrados

Ms. Monique Guay

Ms. Maria Barrados

Ms. Monique Guay

Ms. Maria Barrados

0920

Mr. Greg Gauld (Vice-President, Merit Policy and Accountability Branch, Public Service Commission of Canada)

Ms. Maria Barrados

Mr. Greg Gauld

Ms. Monique Guay

Mr. Greg Gauld

Ms. Monique Guay

Ms. Maria Barrados

Ms. Monique Guay

Ms. Maria Barrados

Ms. Monique Guay

Ms. Maria Barrados

Ms. Monique Guay

Ms. Maria Barrados

Ms. Monique Guay

Mr. Gaston Arseneault

0925

Ms. Monique Guay

Mr. Gaston Arseneault

Ms. Monique Guay

Mr. Gaston Arseneault

Ms. Monique Guay

The Chair

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

Ms. Maria Barrados

Ms. Anita Neville

Ms. Maria Barrados

Ms. Anita Neville

0930

Ms. Maria Barrados

Ms. Anita Neville

Ms. Maria Barrados

The Chair

Mr. Leon Benoit (Lakeland, CPC)

Ms. Maria Barrados

Mr. Leon Benoit

0935

Ms. Maria Barrados

Mr. Leon Benoit

Ms. Maria Barrados

Mr. Leon Benoit

Mr. Gaston Arseneault

Mr. Leon Benoit

Ms. Maria Barrados

Mr. Leon Benoit

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

Ms. Maria Barrados

0940

Mr. Paul Forseth

Ms. Maria Barrados

The Chair

Ms. Maria Barrados

The Chair

Ms. Maria Barrados

The Chair

Ms. Maria Barrados

The Chair

Ms. Maria Barrados

The Chair

Mr. Roger Gaudet (Berthier—Montcalm, BQ)

Mr. Gaston Arseneault

Mr. Roger Gaudet

0945

Ms. Maria Barrados

Mr. Roger Gaudet

Ms. Maria Barrados

Mr. Roger Gaudet

Mr. Alex Shepherd (Durham, Lib.)

Ms. Maria Barrados

0950

Mr. Alex Shepherd

Ms. Maria Barrados

Mr. Alex Shepherd

Ms. Maria Barrados

The Chair

Ms. Monique Guay

Ms. Maria Barrados

Ms. Monique Guay

Mr. Gaston Arseneault

Ms. Monique Guay

The Chair

Mr. Paul Forseth

0955

Ms. Maria Barrados

Mr. Paul Forseth

Ms. Maria Barrados

Mr. Paul Forseth

Ms. Maria Barrados

Mr. Paul Forseth

Ms. Maria Barrados

The Chair

Ms. Maria Barrados

The Chair

Ms. Maria Barrados

The Chair

Ms. Maria Barrados

The Chair

1000

Ms. Maria Barrados

The Chair

Ms. Maria Barrados

The Chair

Mr. Leon Benoit

Ms. Maria Barrados

The Chair

1005

Ms. Maria Barrados

The Chair

Ms. Joanna Gaultieri (Federal Accountability Initiative for Reform (FAIR))

1015

1020

1025

The Chair

Mr. Leon Benoit

Ms. Joanna Gaultieri

Mr. Leon Benoit

Ms. Joanna Gaultieri

Mr. Leon Benoit

Ms. Joanna Gaultieri

Mr. Leon Benoit

Ms. Joanna Gaultieri

1030

Mr. Leon Benoit

Ms. Joanna Gaultieri

Mr. Leon Benoit

Ms. Joanna Gaultieri

Mr. Leon Benoit

Ms. Joanna Gaultieri

The Chair

Ms. Monique Guay

1035

Ms. Joanna Gaultieri

Ms. Monique Guay

The Chair

Mr. Alex Shepherd

1040

Ms. Joanna Gaultieri

Mr. Alex Shepherd

Ms. Joanna Gaultieri

Mr. Alex Shepherd

Ms. Joanna Gaultieri

1045

The Chair

Mr. Paul Forseth

Ms. Joanna Gaultieri

Mr. Paul Forseth

Ms. Joanna Gaultieri

Mr. Paul Forseth

Ms. Joanna Gaultieri

Mr. Paul Forseth

Ms. Joanna Gaultieri

Mr. Paul Forseth

Ms. Joanna Gaultieri

Mr. Paul Forseth

Ms. Joanna Gaultieri

Mr. Paul Forseth

Ms. Joanna Gaultieri

Mr. Paul Forseth

Ms. Joanna Gaultieri

Mr. Paul Forseth

Ms. Joanna Gaultieri

Mr. Paul Forseth

Ms. Joanna Gaultieri

Mr. Paul Forseth

1050

Ms. Joanna Gaultieri

Mr. Paul Forseth

The Chair

Ms. Anita Neville

Ms. Joanna Gaultieri

Ms. Anita Neville

1055

Ms. Joanna Gaultieri

The Chair

Mr. Roger Gaudet

The Chair

Ms. Joanna Gaultieri

The Chair

Ms. Joanna Gaultieri

The Chair

1100

Ms. Joanna Gaultieri

The Chair

Ms. Joanna Gaultieri

The Chair

Ms. Joanna Gaultieri

The Chair

CANADA

Standing Committee on Government Operations and Estimates

NUMBER 012

3rd SESSION

37th PARLIAMENT

EVIDENCE

Tuesday, May 4, 2004

[Recorded by Electronic Apparatus]

¿ (0905)

[English]

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

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

This morning we have before us the Public Service Commission of Canada. We have with us the interim president, Maria Barrados. We welcome you. You will please introduce your colleagues. I understand you have an opening statement, and I know the members will have some questions. Please proceed.

[Translation]

Ms. Maria Barrados (Interim President, Public Service Commission of Canada): Mr. Chairman, thank you for this opportunity to appear before the committee to speak about Bill C-25, the Public Servants Disclosure Protection Act.

With me today are two senior officials from the Public Service Commission, and I would like to introduce them to you. Gaston Arseneault is general counsel and Greg Gauld is vice-president of the Merit Policy and Accountability Branch.

The Public Service Commission is an independent agency reporting to Parliament. The PSC, as part of its oversight of federal government staffing, undertakes audits and investigations of individual appointments. It hears appeals from federal government employees who are dissatisfied with a staffing decision.

[English]

Under the PSEA the PSC holds significant powers for these purposes, including the authority to order corrective action and to rescind a delegated authority if need be. For about 20,000 appointments last year we dealt with about 1,700 appeals, and 9% of these led to corrective action. These appeal figures are relatively constant year over year. The PSC's responsibilities and authorities for appeals and investigations will change under our new legislation. However, the PSC will continue to undertake audits and investigations as a key part of its oversight role in federal government staffing, which leads me to my reason for being here today, our comments on the new Bill C-25.

[Translation]

I would like to say at the outset that we fully support the intent of this bill, and feel that the time has come to establish in legislation a procedure for the disclosure of wrongdoing and to protect those who disclose wrongdoing.

As an oversight agency, we support initiatives that strengthen accountability and transparency in the public sector.

[English]

There are several comments I will make about the potential for overlap with the jurisdiction of the Public Service Commission under the Public Service Employment Act. My remarks will be brief, but a more substantive description is contained in my recent letter to the committee.

The issues surrounding federal government staffing go to the heart of employees' expectations, fair access to promotion. A portion of disclosure brought to the public sector integrity commissioner could well relate to the same issues that go to our appeals and investigations. This is especially true given that disclosures made to the integrity commissioner would be provided with protection against reprisal and confidentiality, protection the PSC cannot provide currently under the PSEA. As the legislation is currently drafted, the integrity commissioner has discretion to decide whether or not to deal directly with the matter, which could be addressed by other agencies. This would mean the commissioner could theoretically deal with staffing-related disclosures if he or she felt it was appropriate to do so.

The committee may wish to consider a mandatory referral mechanism to ensure that all staffing issues falling within the jurisdiction of the PSC would be referred to the PSC, as well as providing similar protection to any public servant who makes such disclosure. This would offer a more uniform approach to protection against reprisal and confidentiality. An additional legislative authority for the PSC might also be considered to ensure that the PSC could investigate all staffing disclosures. This is because under the new PSEA the PSC will be more limited in its ability to investigate internal appointments.

In general, the PSC has jurisdiction under the PSEA for the organizations that form the core public service. In contrast, Bill C-25 applies to the broader general public sector, including crown corporations. This could lead to inconsistency in the way disclosures are dealt with across the broad public sector. To avoid this, the committee may consider granting the PSC an additional legislative authority to deal with disclosures related to staffing that originate outside the core public service, yet within the public sector. The result would be more consistent decision-making, a clear redress process for employees, and a concentration of staffing expertise and accountability in one oversight body reporting to you.

¿ (0910)

[Translation]

Finally, a comment about the proposed staffing process for the staff reporting to the Integrity Commissioner. Under the bill, the Minister responsible for the Public Service Human Resources Management Agency of Canada would provide the commissioner with the officers and employees from within the public service needed for undertaking the commissioner's duties. This could imply that this minister would hold staffing authority. However, under the PSEA, the PSC holds the exclusive authority to make appointments within the core of public service, to ensure appointments are non-partisan and based on merit.

[English]

The committee may wish to consider an amendment to the bill whereby the minister could not be perceived as involved in staffing and whereby persons selected to perform duties for the integrity officer are selected on the basis of merit.

In closing, I would like to reiterate the PSC's support for the intent of the bill.

Mr. Chairman, we would be pleased to respond to the committee's questions.

The Chair: Thank you very much.

We'll begin the questioning with Ms. Yelich.

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

First of all, are there any clauses where you would see some amendments? I'll give you an example. The other day we had a witness who was concerned about clause 12. I'm wondering if you've addressed that clause in your presentation, where a public servant may disclose a matter to the commissioner only if they've gone to the first level, the supervisors, before they actually go to the commissioner. They felt this wasn't leaving it open enough for them to decide which route to take when they wanted to lodge a complaint. Have you given any thought to that? Would that be a concern?

Ms. Maria Barrados: We've raised a number of issues, and I'll ask Mr. Arseneault, who knows the details of these things better than I, about specific clauses. But what we're concerned about is the referral mechanism, that section of the bill that talks about referral and the discretionary nature of the referral. We raised some concerns about the coverage. If you have staffing issues, we're asking for a mandatory referral, so the coverage of the PSEA should allow the investigation of those referrals. The other section is the use of the term “minister” in that piece of legislation with the right to staffing.

Mr. Arseneault could perhaps point you to the specific clauses of the bill.

Mr. Gaston Arseneault (Senior Counsel, Public Service Commission of Canada): The clause relating to the minister having staffing authority is clause 19.

¿ (0915)

Ms. Maria Barrados: If it would help the committee, we can, in relation to the comments we sent you, give you the references to the bill. It probably wouldn't be very efficient for us to not dig those out.

Mrs. Lynne Yelich: All right, fine. I was just wondering about that, because it was certainly an issue with our witness the other day.

There are also the concerns about the minister not being independent and not being answerable to Parliament. Is that a concern, and do you have some thoughts on that?

Ms. Maria Barrados: There's a long tradition for why you have the Public Service Commission. The way the Public Service Commission is set up, you have an agency that has no minister. It's been set up that way for close to a hundred years because a decision was made by Parliament that staffing should not be under the control of a minister, hence the independent Public Service Commission. This clause about the minister's role could be read as the minister having staffing responsibility, and we're suggesting that it should be clarified.

Mrs. Lynne Yelich: Then you feel it should be under the purview of Parliament.

It was brought up the other day that there should be some thought about exemptions. The CBC, for example, wanted to be exempt. Do you have any thoughts on that? Should there be exemptions? Is there any room for exemptions in the bill? Do you think it is something we should allow?

Ms. Maria Barrados: I'm not really in a position to talk about that.

The Chair: Thank you.

Madame Guay.

[Translation]

Ms. Monique Guay (Laurentides, BQ): Thank you, Madam Chair.

Thank you for being here with us this morning. A number of witnesses who have come before the committee since the bill was introduced, as well as a number of MPs, have expressed the desire to see the commissioner be given much more independence and to report directly to the House of Commons. I would like to know the position of the Public Service Commission on that point.

Second, I note that you have concerns about the appointment of officers by the minister or staff. Do you believe that you would be in a better position than the department to make those choices? Does the Public Service Alliance already have qualified people to do that kind of work?

Ms. Maria Barrados: I would ask for clarification on some of those points. What do you mean by “senior officers”? What is their level?

Ms. Monique Guay: The bill says that senior officers would be appointed to hear complaints. So someone wishing to lay a complaint within a department would submit the issue to the senior officer. It would also be possible to go to the commissioner, but in order to prevent everything from being sent directly to the commissioner, the bill calls for the appointment of senior officers who would report to the commissioner.

But anyone wanting to make a complaint could always go directly to the commissioner if it was felt that the senior officer would not satisfactorily resolve the problem or if that officer was involved in the situation in question.

Ms. Maria Barrados: I do not have much to say about the process proposed in the bill.

Ms. Monique Guay: But you feel that the process is important.

Ms. Maria Barrados: I have comments to make about staffing—and my colleagues will be able to give you more information on this—and about the issue of independence.

It will ultimately be up to the committee to make a decision about the commissioner's role. I can say, however, that the Public Service Commission places great importance on the independence of our role and the need to remain independent, a little like the Auditor General, who has an even more independent role than we do. We do not have a minister, but we go through the minister in order to table our records. Under the new act, we will report directly to Parliament. That is very important for us.

Greg can talk to you a little bit about the staffing process. It is not exactly the focus in the bill, but it is a staffing issue.

¿ (0920)

Mr. Greg Gauld (Vice-President, Merit Policy and Accountability Branch, Public Service Commission of Canada): With respect to the issue of the senior officers mentioned in the bill, I believe that we are not in a better position than the Integrity Commissioner to select these people. In fact, it is the deputy head who must do that. We are involved more in staffing and managing human resources.

Ms. Maria Barrados: But it is important to us that the process come under the Public Service Employment Act and that it be based on merit.

Mr. Greg Gauld: We are talking here about the commissioner's staff. That is the other issue. Senior officers are appointed by deputy heads in each department. The president's concern related to the wording in the bill, which suggests that the minister himself might choose the commissioner's staff without people having qualified for these positions or being selected in an impartial manner.

Ms. Monique Guay: That is the point: the process must be fair and equitable, and these have to be qualified people and not political appointments.

Mr. Greg Gauld: Exactly.

Ms. Monique Guay: That is certain.

Do you agree that the commissioner should report directly to the House, a bit like the Auditor General does now in an emergency situation? After all, the commissioner might have to investigate a very serious situation and prepare a report. In that case, instead of giving an annual report, he could table an emergency report at any time that he feels it to be necessary, without having to go through a minister.

Ms. Maria Barrados: It is up to Parliament in the end to decide on the reporting system. But I can say that I am very pleased to see this change in the new public service legislation.

Ms. Monique Guay: Very well. I understand that it would be desirable in this area as well.

You said earlier that only 9% of complaints had been dealt with. Has there been a problem? Is it because the complaints were not well-founded or because there are not enough staff? Can you give us a little information on that?

Ms. Maria Barrados: In 9% of cases, the result was that the decision was overturned.

Ms. Monique Guay: Only 9%. Is that because the complaints were not justified?

Ms. Maria Barrados: Those complaints were justified. The other complaints were not. But the Public Service Commission used a mediation process, and there is no final decision when that type of process is used.

Ms. Monique Guay: All right, I understand. It takes more time, as well.

In the current legislation, there is no monetary sanction. There are not really any sanctions in the bill. Do you believe that there should be?

Ms. Maria Barrados: That is another decision that the committee will have to make, but in the case of staffing, the Public Service Commission has a lot of authority. So it will be important for staffing-related issues to come under the Public Service Commission.

Gaston, can you talk a bit about the powers that we have?

Ms. Monique Guay: Yes, that would be helpful.

Mr. Gaston Arseneault: Subsection 7.1 of the Public Service Employment Act states:

The Commission may conduct investigations and audits on any matter within its jurisdiction.

So it has powers in that regard. Subsection 7.2 indicates:

In connection with and for the purpose of any investigation or report, other than an audit, by the Commission under this Act, the Commission has all the powers of a commissioner under Part II of the Inquiries Act.

Thus, it can order people to testify.

Under Subsection 7.5 of the PSEA:

Subject to Section 34.5, the Commission may, on the basis of any investigation, report or audit under this Act, take, or order a deputy head to take, such corrective action as the Commission considers appropriate.

So the Public Service Commission has enforcement powers and the power to order corrective action.

¿ (0925)

Ms. Monique Guay: So it can impose sanctions.

Mr. Gaston Arseneault: Yes.

Ms. Monique Guay: Can it impose monetary sanctions?

Mr. Gaston Arseneault: No. The measures that the Commission takes are normally related to the kinds of activities that it does, for example, revoking appointments or, in some cases, withdrawing delegated authority from managers. Ordering monetary sanctions is not normally part of the Public Service Commission's role.

Ms. Monique Guay: Thank you.

[English]

The Chair: Ms. Neville.

Ms. Anita Neville (Winnipeg South Centre, Lib.): Thank you, Mr. Chairman, and thank you for being here this morning, Madam Guay. You spoke to some of the same issues I was going to speak to.

I looked at the definition of wrongdoing, and I'm wondering if, to your mind, it is clear enough and whether employees will use this avenue to make complaints that they do not have addressed through your process. I'm wondering if you could speak a bit more about the referral process, as you have in your presentation today.

Ms. Maria Barrados: Thank you, Mr. Chairman.

I did a fair bit of background reading, actually, in thinking about this. I know people make a lot of comments about definition and I'm not sure I can add to that debate. But if we look at some of the cases that have come to the Public Service Commission, some of them relate to fraud in staffing processes, which are on a fairly large scale--not many, but we have that kind of thing. Such a thing is not right by any sense of the word.

If we look at the privacy commissioner and the audit of the Auditor General, the report dealt with two big issues there. One issue was staffing and staffing-related matters, the human resource management, and the other one was financial. Those were the two things, and they were somewhat interlinked.

Our feeling is that it will be inevitable that some of the staffing concerns get caught in the definition. That's because, for people, their jobs and their opportunities for promotions are very, very important. And while we don't have financial sanction in what we do, revoking somebody's job has quite an impact--and quite a financial impact. Our view is that it would work better if the referral was mandatory on the part of the integrity commissioner for staffing matters.

Now, we could work out how we do this. He could refer to us. We could give the information to him and report to Parliament. There are any number of ways that it could be done technically, but we have the expertise, we have the people who know the legislation, we have the powers.

That's the nature of our recommendation. Currently, it is discretionary as to whether a referral is made; we are suggesting it should be a required referral.

Ms. Anita Neville: Are you saying that for all issues related to staffing matters?

Ms. Maria Barrados: Related to our legislation.

Ms. Anita Neville: In the best of all worlds, how would you ultimately see your relationship with the newly appointed commissioner and the office?

¿ (0930)

Ms. Maria Barrados: The commission has a number of elements we don't have, like protections for confidentiality. Our appeal process is totally public. Ideally, what we're suggesting is that if somebody brings a complaint to the integrity commissioner, the integrity commissioner would then refer a staffing complaint to the Public Service Commission, but in making the referral, those rights and protections for the individual would be kept, so that when we do our investigation we do it with the same rights and protections, the scope, that the integrity commissioner has. Otherwise, why would somebody want that if there is a concern in protecting confidentiality? If the complaint is staffing, and the commissioner feels it is a complicated complaint within the purview of the commissioner's office, then those rights and protections should stay. If the commissioner decides it isn't within his purview and he has no interest in it, then it goes directly to the Public Service Commission, which in fact occurs now under the current regime.

Ms. Anita Neville: What you're saying is very reasonable and very logical, but what I'm wondering goes back to my original question on definition. If the public service processes that are currently in place would not be used in order to maintain the protection and privacy of the individual, would the integrity commissioner process be used? I see the potential for a lot of negotiation and working out of processes and regulations.

Ms. Maria Barrados: In the end, whether something is clearly within his/her purview would have to be based on the judgment of the integrity commissioner. In the same way that I work with other officers of Parliament, I would accept that.

The Chair: Over to you, Mr. Benoit, please.

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

I apologize for not being here for your presentation, but I have read it through. Also, we received a letter sent by you just a few days ago. In the letter you outline four areas where you'd like to see some changes. Going through your presentation and through the letter, it's not entirely clear to me why these changes are really important.

Could you go through the issues you have brought forth and speak a bit more about why changes to these areas are important and what specific amendments you would make to the bill? It would be very helpful to the committee to get that information.

Ms. Maria Barrados: In reference to the letter, the first issue is mandatory referral. We've just been discussing this. It's the issue about complaints that in the view of the integrity commissioner are related to staffing. There should be a mandatory referral to the Public Service Commission. Right now the legislation says “may”, so there's a discretionary element in this.

Traditionally, Mr. Keyserlingk has regularly sent things to us, but a new regime is being established. We feel this is important because under the Public Service Employment Act we have many more powers to take corrective action. We have the experience; we have the processes in place to do it; we have the staff. I'm not so sure that would be the case.

I guess at the end of the day it would be better for everyone if decision-making on these issues is the same, so there is a consistency in the decisions. We are suggesting an amendment be considered in the nature of the referral.

Mr. Leon Benoit: So is the bottom line your concern that if this doesn't happen this way, if there isn't mandatory referral, people will lose their jobs when it may not be appropriate? I'm looking for the real reason for this being of great concern. It's obvious to you, probably; maybe it's not as obvious to me.

¿ (0935)

Ms. Maria Barrados: As I understand it, people cannot lose their jobs if a complaint goes through the integrity officer, but they can lose their jobs if it goes to the Public Service Commission. We have the powers of redress. We also have the processes and the experience, none of which is at the other commission.

Mr. Leon Benoit: So then is this important to you because there may be people who've made frivolous or inappropriate claims under this legislation who are still working in the public service?

Ms. Maria Barrados: Our concern is for equitable treatment. Mr. Arseneault can answer that.

Mr. Leon Benoit: I guess if you give me an example of where a situation might arise where you think there might not be equitable treatment, it would be helpful. It's not obvious to me.

Mr. Gaston Arseneault: It's not so much an issue of equitable treatment as it is an issue of consistent treatment, in the sense that under the Public Service Employment Act the commission has a number of responsibilities. It must appoint on the basis of merit; it must take measures according to the provisions of the Public Service Employment Act, whereas the integrity commissioner will investigate a matter vis-à-vis wrongdoing and make recommendations to a deputy. Some of these recommendations may be inconsistent with what the Public Service Commission might order a deputy to do in certain circumstances. The focus may be on correcting a wrongdoing, which is one element, but the employment act is also very important in bringing about remedies. So it's an issue of having all of these factors considered when remedies are brought to a situation.

It would be an issue of recommendations not coming forward that would be inconsistent with the Public Service Employment Act, and by having the commission do it, consistency is assured in the staffing system. It's more along that line--consistency--and the fact that there are abilities for the commission to take corrective measures in staffing matters.

Mr. Leon Benoit: I guess it's still not clear to me. A little more explanation would really be helpful, or an example of some kind.

Ms. Maria Barrados: Can I try?

The audit of the Office of the Privacy Commissioner raised a number of issues; it wasn't just one. And that's frequently the case. The Auditor General's report dealt half with financial matters, things that were incorrect on the financial side, and then half with human resource management issues. In addition, you had the Public Service Commission doing an audit and investigations on specific staffing transactions. You had all those pieces going at the same time.

Now what we're saying is in this particular kind of office, if there is a case where there is wrongdoing, where things are not right, it would work a lot better if any particular section of the complaint that the integrity officer feels should be investigated were referred to the people who have the expertise to do the investigation. Then you would have the whole thing happen at once. As well, you would have it with the Public Service Commission, which has the powers to order corrective measures, which the integrity officer does not.

Mr. Leon Benoit: Okay. My colleague is going to ask a short question on that.

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, CPC): Yes, you did bring up the privacy commissioner situation. I was there and was instrumental in getting your office involved, but then as a result of that, from your involvement with the power to remediate--without naming names--how many people lost their jobs, how many were demoted or had their classification changed or the unreasonable severance taken back?

I would like to have a quick snapshot. You say you had the power to remediate. Then exactly how many people were affected, and what did you remediate in that situation? That will give us a clear example of the kind of thing you are talking about today.

Ms. Maria Barrados: Mr. Chairman, as you know, there were 10 specific investigations that arose. There were a number of very specific charges. The auditors determined that there was a breakdown of the system in staffing in terms of respecting the values, and there were 10 specific cases that were looked at in terms of whether the laws were respected and decisions were made about what should happen in those cases.

We are just finishing that work, and I indicated in a letter to you in February, Mr. Chairman, that there was one case where we were revoking an appointment that had been turned over. There's a process that we follow. A number of the people are no longer there, so those are no longer an issue, and we are in the process of wrapping all this up and giving you a report on the whole story. That is now in the process of being finalized.

But of those 10, there was the one case that we have already told you about that was revoked. A number of others are no longer there.

¿ (0940)

Mr. Paul Forseth: When you say they are no longer there, was it because they resigned?

Ms. Maria Barrados: There were different scenarios. They were no longer at the privacy commission holding those jobs. Some retired. Some went to other places.

The Chair: Okay. I want to see if we can get some clarity here on what I think is an important line of communication. Under this proposed act, under no circumstances would an employee alleging a wrongdoing go to the PSC. Is that right?

Ms. Maria Barrados: Well, potentially, yes they could. We have audits, we have appeals, and we have investigations.

The Chair: Okay.

The reason I ask is that the bill calls for the establishment of a senior officer, the chief executive establishes a senior officer, and that senior officer has the responsibility of addressing wrongdoings as defined. If that senior officer determines that it is an employment-related matter or grievance, then it goes to the PSC. If it's legitimately a wrongdoing under the provisions of the act, they may deal with it, and if it's not to the satisfaction of the employee, the employee can go to the commissioner, or the employee can go straight to the commissioner, if their view is that it can't be helped.

I suspect that once it gets to the commissioner, as you said earlier, the commissioner could just say, “Send it to the PSC, because it's not ours”.

Is that how you understand that it should work?

Ms. Maria Barrados: What we're suggesting is that it would be preferable, if there is a staffing complaint that ends up in the hands of the commissioner or staffing sets of issues that are in the hands of the commissioners, that it go to the PSC. It's not a question of whether it “may” go to the PSC.

The Chair: A staffing issue.

Do we have clarity in the definition of wrongdoing?

Ms. Maria Barrados: Mr. Chairman, as I was saying before, I've looked at a lot of definitions, and I'm not sure there's one answer on the definition.

The Chair: Yes, I'm afraid that's the case.

Ms. Maria Barrados: Often it's in the eye of the beholder.

The Chair: Mr. Gaudet, please.

[Translation]

Mr. Roger Gaudet (Berthier—Montcalm, BQ): Thank you, Mr. Chairman. I would like to ask Mr. Arseneault, who is a lawyer, what he thinks of Bill C-25 as a whole. For a public service employee wanting to blow the whistle on someone, do you believe that this legislation is a good tool?

Mr. Gaston Arseneault: You are really asking me to express an opinion. I have read the testimony given by witnesses and by the minister. I found it interesting that the minister talked about finding a balance between the objectives that he wanted to achieve with this legislation and the desire to protect certain interests. He felt that this balance had to be maintained. On the basis of what he said, and I felt personally that it was reasonable, he was seeking a reasonable balance in this legislation that would allow for whistleblowing but prevent the procedure from being abused. From that point of view, I found that the bill struck a kind of balance.

Mr. Roger Gaudet: Yes, but under clause 19, the minister can... My criticism is that the commissioner has to report to a minister, whereas the Auditor General reports directly to Parliament. That worries me.

We received letters this week from Ken Rubin. I am skeptical and I am concerned that this could become a kind of KGB. This may not be the place to bring it up, but we hear that after the Auditor General examined certain files concerning the sponsorship program, she found shortcomings in internal audits that had been deemed satisfactory.

Something bothers me in the fact that everyone has a kind of veto. If the minister, the senior officer or the commissioner, since the commissioner reports to the minister, says that the issue should be stifled, I find that hard to accept. In my opinion, the commissioner should report to Parliament, just like the Public Service Commission and Sheila Fraser. Why should the commissioner not report to Parliament? If he does not, someone can stop the issue from coming forward.

¿ (0945)

Ms. Maria Barrados: It's very important for the committee to have an opinion on these issues. For me, in my capacity as acting president of the Public Service Commission, it is very important to have a relationship with parliament and, under the new legislation, to have the other provision authorizing me to report directly to Parliament. I intend to use this power.

Mr. Roger Gaudet: You still have not given me your opinion. I get the impression that you are skeptical about the bill, Mr. Arseneault.

Ms. Maria Barrados: Since we are public servants working for the Public Service Commission, it is difficult for us to give you an opinion on the bill in its entirety. We are here today to speak about the impact the bill will have on the Public Service Commission and to talk about our experience with regard to our relationship with Parliament. We fully support the intent of the bill.

Mr. Roger Gaudet: Very well. Thank you.

[English]

Mr. Alex Shepherd (Durham, Lib.): As I listen to you, I'm a little bit mystified. I go back to the Radwanski issue, and I know it was before your time, but we had an employee there who clearly went to the Public Service Commission with a complaint and nothing happened. So there's that kind of history there as well.

I listened when you talked about your model and your idea of where the Public Service Commission should fit into all of this. I really wonder whether it's an efficient process to have the integrity commissioner report to or send a file over to the Public Service Commission, which then investigates. It seems it goes on forever. You're telling me you're just making recommendations on what to do with the Radwanski file, but it seems to me it was ages ago that we dealt with that.

Looking at this from an efficiency point of view, of when a complaint is made and how quickly it can be dealt with, does it make sense to go through the process you're talking about?

Ms. Maria Barrados: There are a number of questions there. In terms of the Radwanski situation, I wasn't at the Public Service Commission, but I was at the Office of the Auditor General and was fairly heavily involved in that audit. You are correct that there were complaints made to the Public Service Commission and to the Treasury Board, and nothing occurred.

Once an officer of Parliament got into it, and the committee got into it, lots of things happened. What that shows is that the referral mechanism works. When the committee and the Auditor General were saying that you had to look at those things, people looked at those things and looked at them very diligently.

On the issue of the length of time, even though it may seem like a long time ago, that whole thing, or the investigations, didn't really get started until the beginning of the winter—just because people have to be there and you have to follow due process. I would argue that due process—although there may be some efficiencies in time—is very important here, because we're talking about people's jobs. And if they lose their jobs at the end of this, it has a major effect.

We have a quasi-judicial process, which I think we have to follow to protect the rights of everybody involved, particularly when it comes to something that is not a recommendation on any kind of process, but about whether somebody keeps their job or not.

Your other question was on efficiency. I believe it would be more efficient, frankly. I would suspect that a number of the cases are complicated cases and that they involve many elements. That's certainly the case with the privacy commissioner and in a number of the other investigations we see. It's not just one thing. Sometimes it's one thing, but in these cases it's not just one thing, but a complexity of things.

If the integrity officer does his assessment and feels there's an element of staffing that's important, he should turn it over to the Public Service Commission and we'll do the investigation. We can work out the turnaround time, but we would respect our due process.

¿ (0950)

Mr. Alex Shepherd: Going back to the whole concept of discipline, presumably it has to be seen to have happened in some kind of a timeframe related to the wrongdoing. In other words, presumably the process is set up so that you create a culture within the public service and elsewhere that it is improper to tolerate wrongdoing and so forth.

If the investigation takes a year and somebody is quietly terminated, or something, I'm not quite sure it would have the impact we would like it to have.

Ms. Maria Barrados: I think that's a good point. It's a function of when the issues are raised as well as the process that was followed.

In the case of the privacy commissioner, those issues didn't all come to the table for investigation—and I grant you there were warning signs that weren't followed. I can tell you that won't occur under my watch. If anything like that occurs, the auditors will be in there right away.

Mr. Alex Shepherd: Your point is that you have the resources to investigate and the integrity commissioner may not.

Ms. Maria Barrados: It's the resources and expertise and the legislative framework.

The Chair: Thank you.

Madame Guay has a quick question.

[Translation]

Ms. Monique Guay: I have a final brief question. A little earlier, you seemed to suggest that there may be overlap or duplication with respect to Bill C-25 and what you are already doing. Is it possible that there may be duplication, and how can the bill address this? Is there anything we can do to help you avoid that type of situation?

Ms. Maria Barrados: Yes, it's possible. The commissioner is not required to call on the Public Service Commission. It is at his or her discretion.

Ms. Monique Guay: How can we address that? Mr. Arseneault, you are the legislator.

Mr. Gaston Arseneault: According to section 25 of the bill:

Before dealing with a disclosure, the Commissioner must be satisfied [...]:

b) that the subject matter of the disclosure is not one that could more appropriately be dealt with, initially or completely, according to a procedure provided for under another act of Parliament;

This means that the commissioner has the discretion to determine whether the whistleblower should not take his or her case elsewhere first. However, in the type of circumstances described, I think this should be changed; the commissioner must send the whistleblower to another authority. If another federal body is in a better position to examine the issue, since we're dealing with a staffing matter, the commissioner should, in those circumstances, refer the issue to the commission.

Ms. Monique Guay: Fine. Thank you for that information.

[English]

The Chair: Mr. Forseth has a question.

Mr. Paul Forseth: Thank you.

You talked about the desirability of redesigning the bill for your area of purview and jurisdiction.

What about the power now to remediate someone out in the region? They look at a lower-level competition—which you're not particularly involved with, because it's a delegated area—and everyone there knew that fix was in and that the so-called favourite got the promotion. There's a lot of bad feeling about line-level people. They may not have actually applied, so they can't be a direct complainant, but can they come to you and ask that your office do an investigation, because everybody at the lower level knew the fix was in?

They can't complain to their supervisors because their local area management is playing favourites. Who do they go to? Do you really have the power to get in there and mix it up and fix that situation?

¿ (0955)

Ms. Maria Barrados: Mr. Forseth, yes, we do.

Under the new legislation, or the revised bill, we will have more limitations placed on us in terms of the internal processes. There are going to have to be processes within the department, but right now we do. And we look at those.

Mr. Paul Forseth: So you're saying the bill we passed is going to limit your ability to do that.

Ms. Maria Barrados: Yes, the revised Public Service Employment Act is limiting us for internal matters. That's why, for those investigations we are asking.... For anything referred to us from the integrity officer, it does allow us to investigate those. Now it's going to be at the discretion of the deputy minister—with the new legislation.

Mr. Paul Forseth: That's an interesting wrinkle. Then if you get the right designation in Bill C-25, you might say that, via the back door, it might fix some of the limitations of the previous Bill C-25.

Ms. Maria Barrados: No, that's not my intention here. My intention is only to deal with those complaints that come through the integrity commissioner, so it's a very small number. It is the kind of issue we would raise when we do the revision of the bill in five years. There's no intention here to make broad-scale amendments or changes to the bill. It's really only dealing with this issue.

Mr. Paul Forseth: It's just the practicality of someone at the lower lever being able to go to some process, and that there's a professional competition process, rather than managers picking their favourites.

Ms. Maria Barrados: They can do that right now.

The Chair: We really have to get an opinion from the PSC here.

Employees have a duty of loyalty to the employer, but this bill says it's discretionary; they may report a wrongdoing.

Do you have any view on whether employees should have the discretion of reporting a wrongdoing, or should the bill say they shall report any knowledge of wrongdoing?

Ms. Maria Barrados: I don't really have a view on that.

The Chair: I mean vis-à-vis the duty of loyalty--the oath public servants take.

Ms. Maria Barrados: My preoccupations are with the Public Service Employment Act and the rights of employees under that piece of legislation.

The Chair: Okay.

Reprisal seems to be a very significant concern for many people who have come before us. If that indeed is the case, particularly when this act should be seen to be dealing with the most serious.... We're talking about gross mismanagement, serious breach, environment, and health and safety. These are very serious; they are not employee grievances. They are very close to possible criminal activity, possible Criminal Code type of stuff.

In view of that fact, wouldn't it make sense that to protect the confidentiality and integrity of the whole process, any and all allegations of wrongdoing should go to one person only, for instance, an integrity commissioner?

Ms. Maria Barrados: We are not suggesting that individual public servants not go to one person. That's not the intent of our suggestion. The intent of our suggestion is that when it goes to one person and it is a staffing issue, that it go to the Public Service Commission.

On the issue of reprisals, a number of reprisals are in terms of denying promotions and staffing opportunities. So that can very much potentially involve the Public Service Commission in terms of its powers of investigation.

The Chair: But when it really gets down to it, for employees who are concerned about any form of reprisal, if there isn't just one person, I suspect their only recourse ultimately is the brown envelope route.

If we're getting involved with people alleging wrongdoing.... The employees may not know all the facts, but if they're alleging wrongdoing, how can anyone think they would be comfortable going to a senior officer appointed by the chief executive of their ministry, of their department?

À (1000)

Ms. Maria Barrados: That is clearly a consideration. I can tell you that in the Public Service Commission we take brown envelopes very seriously. We look at them, and if we think there's anything in there that suggests there are some issues, we will take a look.

The Chair: Okay.

Finally, the bill includes some aspects of being frivolous or vexatious in allegations. As you know, under professional codes of conduct or ethics rules, the determination of whether something is frivolous or not is not the responsibility of the whistle-blower; it is determined by others. Therefore, if you have these concepts in here and there is a reprisal if your allegation is frivolous or vexatious, it would actually be an inhibitor for people to come forward, because they wouldn't know.

So should we consider abandoning the whole concept of any allegation being frivolous or vexatious and just say, “If you know or have reason to believe...”? You want people to bring it to their attention, and it's up to them to determine whether or not there's any basis to it. The employee basically will be doing nothing more than bringing forward information that may or may not be a valid observation or allegation.

Ms. Maria Barrados: It's a challenge for the committee to determine how to balance all the rights of the people involved. There are the rights of the person who has a complaint, but there are also the rights of the people who are being complained against, and this is an issue of balance.

The Chair: We may want to have you back.

Mr. Benoit has one question.

Mr. Leon Benoit: I haven't heard you take a position on this, but do you think it's important for the public service commissioner to be accountable solely to Parliament?

Ms. Maria Barrados: I came in here with the intention of not getting involved in the policy debates that are the purview of this committee. So I will only say that for me, as the head of an agency that has executive powers--we're very much a hybrid agency, and I have executive powers and regulatory powers--the new legislation gives me direct access to Parliament, which is very important.

My current legislation gives me a link to a minister only for the purpose of transmitting my report. That minister has never changed any of my reports. It is a transmittal mechanism. I have not met with the current minister. That again strengthens the relationship with Parliament. It's very important for me to do my job.

So it's a question for the committee to determine how you want the integrity commissioner to do his job.

The Chair: Ms. Barrados, Mr. Arseneault, Mr. Gauld, thank you kindly for appearing today.

Some questions are starting to get some definition. We're committed to helping a piece of legislation get through, but we're also committed to doing the job properly. I'm sure we're going to want you back to maybe consider further and in a little more depth the actual mechanics, and what it means to employees when they reach certain situations.

Do they have the tools to identify an employment-related matter? Do they have to know what constitutes a wrongdoing and all the definitions? What's gross mismanagement versus mismanagement? Do they have to know where to go first, or should they have the option there? Does that compromise or duplicate the responsibilities already under the purview of the PSC?

There are a lot of fibres that go out there, but the bottom line is I think everybody is interested in having a piece of legislation that says that in the event there is a wrongdoing, as defined, it's identified, reported promptly, dealt with on a timely basis, and a resolution is reached on a timely basis. That's in the public interest. That means win-win.

I'm not sure if we're there yet, but I know we're going to need your help to make sure we get there. We need to have the PSC on side with this legislation, as it will ultimately be reported back to the House.

Thank you. We look forward to seeing you again on this matter.

À (1005)

Ms. Maria Barrados: Thank you, Mr. Chairman.

The Chair: We're going to suspend until we have our next witness.

À (1005)

À (1012)

The Chair: We now have Joanna Gaultieri, representing the Federal Accountability Initiative for Reform, or FAIR.

Welcome. I understand you have a brief statement for the committee. We want you to be comfortable. We want you to understand what we ask. We've accepted your request to be here to help us better understand this legislation, its intent, and how we can make a good piece of legislation. We look forward to your comments. I know the members will want to ask you questions, so please commence.

Ms. Joanna Gaultieri (Federal Accountability Initiative for Reform (FAIR)): Thank you, Mr. Chair.

I would like to thank the committee for this opportunity to engage in a meaningful dialogue on the duty of government to provide real legal protection for whistle-blowers. Employees, through their individual acts of conscience, serve the public interest by disclosing institutional illegality and wrongdoing.

I had rather short notice, so I've prepared my speech and other helpful materials and have provided them to the committee for translation. They will include an example of a whistle-blower bill, the whistle-blowing human rights act, Bill C-201, which was a non-partisan initiative introduced in the House by Mr. Grewal and debated last year; as well as the whistle-blower bill of rights, drafted by Tom Devine, legal director for the Government Accountability Project, otherwise known as GAP, the world's preeminent authority on whistle-blower protection; and finally, a 23-point checklist by GAP, outlining the essential elements of effective whistle-blower protection.

I urge the members to consult this material as it provides valuable insight into lessons learned and the approach to be taken in our commonly held objective of pursuing greater public accountability and the restoration of trust in our government institutions.

Let's look at the issue and the relevancy of Bill C-25. The ultimate issue that we confront in this hearing is Canada's commitment to constitutional and human rights. This is because genuine freedom of expression, as guaranteed in our charter, necessarily includes the right for employees to blow the whistle on illegality and wrongdoing that harm or threaten the public interest. The more specific issue is Prime Minister Martin's promise to introduce protection.

To understand how important the work of this committee is we must look at the context in which this promise was made. Canada's landscape is marked by profound disillusionment regarding the lack of stewardship and accountability in government institutions. There has been a pledge to renewal, good governance, and transparency. Whistle-blower protection is increasingly acknowledged as a sound instrument of social change and good public policy.

In our view, against such a backdrop it is unconscionable that the government has responded with Bill C-25. It amounts to little more than a Trojan Horse that creates an illusion of being other than what it really is and fails to meet the government's promise. Instead of providing conscientious employees with real shields to combat retaliation, it offers only perilous paper shields. Rather than empower workers, it imposes a restrictive regime governing the expression of occupational dissent and reinforces a tolerance for arbitrary and discretionary managerial manoeuvres. If the government is serious about restoring public trust, living up to its duty as a fiduciary of public resources, and reinstating public service as a noble and worthy calling, it must withdraw Bill C-25 and replace it with meaningful protection.

It's helpful, I believe, to consider a bit of the background of whistle-blowing. The issue of conscientious dissent has occupied debate for well over a decade. Reprisals and retaliations are well documented, including marginalization, demotions, blacklisting, threats, humiliation, specious prosecutions, firings, and the withdrawal of meaningful work. Statistics in the United States show that 85% of whistle-blowers experience some form of retaliation.

The consequences can have a profound lifelong impact on the whistle-blower and tragic implications for Canada. Consider the lives that would have been saved and painful suffering avoided if someone had blown the whistle on Canada's tainted blood. Innocent deaths would have been spared in Walkerton. If public servants had been free to engage in free speech, the fiscally ballooning gun registry would have been exposed, as well as the sponsorship spending.

The money saved would have been available for health care, child care, aboriginal communities, and homes for the homeless. Valuable politician and parliamentary resources, now spent on a tortuous and obfuscating ex post facto inquiry, would be available for engagement on important public issues.

For many Canadians, the final insult was the image of the former privacy commissioner, ever belligerent and bullying towards staff who questioned his expenditures.

À (1015)

These are troubling betrayals of public trust, but in the absence of legitimate whistle-blower protection, it is hard to know the true extent of both political and bureaucratic wrongdoing and ineptitude. A recent Léger poll showed that approximately 70% of Canadians believe their federal and provincial political systems are highly or somewhat corrupt. Therefore, against this backdrop, it is clearly time to move from debate to serious reform.

So what then are the elements of an effective whistle-blower protection law? It's always difficult to maintain fair whistle-blower laws. It's a challenge, since power craves secrecy and the ability to insulate itself from scrutiny. The intuitive response, therefore, is to suppress disclosure.

So flawed is Bill C-25, in our view, that it provides little assistance. Rather than discussing clause-by-clause amendment, FAIR advocates that parliamentary time is better spent discussing the 23-point checklist from GAP.

We also note Dr. Keyserlingk's harsh critique of Bill C-25, emphasizing the lack of independence and the prevailing requirement to disclose to one's boss. FAIR concurs with his assessment, but cautions even further regarding the inadequacies of remedies for the whistle-blower and the denial of any right to our traditional courts of justice.

Due to time constraints, I will comment on some of the most essential components.

One is full free speech rights. Whistle-blowers should be free to blow the whistle on wrongdoing anywhere, anytime, and to any audience, unless release of the information is specifically prohibited by statute. It should be noted that studies have shown that almost invariably whistle-blowers go to great lengths to pursue internal recourse.

The second component is to permit all disclosures of illegality and misconduct. Disclosure must extend to any illegality, gross waste, mismanagement, and abuse of authority, substantial and specific danger to public health or safety, as well as workplace policies, directives, rules, and regulations. It is noteworthy that Bill C-25 does not include in the definition of wrongdoing the violation of Treasury Board policies and manuals, as it is these vast compendiums of Treasury Board manuals that govern the day-to-day operation of government.

The third is a forum for adjudication of whistle-blower rights. We advocate that there must be access to our traditional courts for an effective judicial process. The subject matter may be substantial and prove to be highly embarrassing for government, and the courts are the only forum that is sufficiently independent to serve as the ultimate adjudicator of the whistle-blower's claim.

Bill C-25 directs whistle-blowers to the PSSRB, the Public Service Staff Relations Board. It is a purely administrative process with no experience in whistle-blowing, nor has it ever had authority for abuse of authority and harassment. They are governor in council appointments, often drawn from the ranks of the senior bureaucracy. This will not have the confidence of the public servants.

The final one is to take corrective action. Studies have shown that employees remain silent for two key reasons: one, they have no faith that anything will change following their disclosure; and two, fear of reprisal. Clearly the public interest requires that corrective action be taken. Legislation therefore requires the establishment of a strong, independent agency with full investigative powers and authority to order a minister to take corrective action. To be effective, a minister would be held liable for statutory breach if he or she failed to take the corrective action. The whistle-blower must be engaged in this process; it is not the time to disenfranchise the whistle-blower. As well, a public repository of the reports must be kept.

I'd like to say a few words about FAIR. In the aftermath of my whistle-blowing ordeal with the Department of Foreign Affairs, two things became clear: one, the public is deeply grateful to public servants who have the courage to speak out in the public interest; and two, the tried and true tactics of cover-up and retaliation were destroying many conscientious and dedicated public servants.

In a hope to make a difference, FAIR was founded as Canada's first public interest, non-profit organization dedicated to protecting the rights of whistle-blowers and the public interest.

À (1020)

Our major accomplishment has been to raise the profile of whistle-blowers as indispensable agents of organizational integrity and public accountability. Hundreds have shared their agonizing experiences. What is clear is that we need an organization like FAIR, non-partisan and independent from government.

I will conclude by saying that replacing rhetoric with action, our government must now provide effective and meaningful protection for whistle-blowers. As eyewitnesses to the birth of scandals, they are indispensable to bridging the secrecy gap. They represent the highest ideals of public service and epitomize the golden standard of loyalty to the long-term interest of the organization, and the only crime they commit is telling the truth.

Good governance respects and tolerates dissent. When matched by good leadership, whistle-blowing may even become unnecessary. As a democratic and enlightened society, Canada must uphold its historical commitment to fundamental rights and freedoms and protect ethical resisters.

Thank you, Mr. Chair, and I welcome any comments.

À (1025)

The Chair: Thank you.

We'll begin with Mr. Benoit, please.

Mr. Leon Benoit: Thank you, and thank you for coming this morning, Ms. Gaultieri. I really appreciate that.

I'd like to learn from you, and we can probably learn the most from you if we use your particular example. You obviously feel that when you came forward with information you felt the public should know about, you weren't treated fairly and the system didn't provide you with what was needed to protect you from action taken by your superiors. If you could, just very briefly explain your situation, and then we'll take it from there in terms of going through your situation to try to see what is needed in a piece of legislation.

Ms. Joanna Gaultieri: Thank you for that question.

It's important to recognize that many public servants, not just those in my experience but others I have spoken to, don't even realize they're whistle-blowers; they're simply trying to do their jobs. In the course of doing their jobs, they run up against the agendas of bosses who are not what they should be. Certainly, this is my experience.

I worked at Foreign Affairs and assisted in the management of the multi-billion dollar diplomatic portfolio. It was not a question of wanting to exercise my own ideas about how we should do this. There were rules and regulations provided by Treasury Board; the only problem was that they sat on the shelves and weren't respected. I simply tried to do my job; I spent years trying to do so and ultimately went up to the minister.

The response was simply to stonewall, and in fact the minister threatened to sue me for libel for daring to say there was anything wrong. This is the experience of most whistle-blowers, that they find themselves engaged in this terribly debilitating process through just wanting to do their jobs.

Mr. Leon Benoit: In your situation, though, you said you spent years trying to disclose this wrongdoing, where the Treasury Board rules were not being respected.

Ms. Joanna Gaultieri: Yes, and I did it by seeking an internal dialogue, precisely that which this bill suggests. The problem with the bill is that it requires a person, someone who has almost invariably already pursued that very process, to alert their superiors to the problem. To then tell the whistle-blower to go back and do it all over again is a further waste of public resources. It's simply naive, and it's wrong for the person who's probably endured a long, torturous workplace experience. So no. Of course I wrote my director general and the assistant deputy minister, met with the assistant deputy minister, wrote the deputy minister, and ultimately wrote the minister.

Mr. Leon Benoit: Were you cautioned as you went along not to pursue the issue, or were you just stonewalled, with no answer at all?

Ms. Joanna Gaultieri: There was no investigation. What I wanted was a dialogue. I felt if we weren't going to do it properly, then we had to document it because it's essential that government create a record so that if there is an audit, it's explained why we were not following the rules. Yes, I was stonewalled, but I experienced debilitating harassment. I got no work, I was removed from the telephone book, my nameplate was removed, I found myself in a public setting where it was announced I was out of my job, and I was sent to a non-existent job. I simply became, as one person said, irrelevant to the organization. It was personally just a terrible assault.

Mr. Leon Benoit: So for this legislation to be effective at all, the requirement that you report this to a superior has to be removed.

Ms. Joanna Gaultieri: I think what's important is to realize that whistle-blowers are often in a very vulnerable position. There is a question of power here. The employer has tremendous power, which often the whistle-blower does not.

I am not advocating that somebody go running out, rent a billboard, and declare on a billboard what they perceive to be the problem. I think it has to be recognized, though, that whistle-blowers need to have some autonomy or control over the steps they take. They need to feel empowered, and to make it absolutely mandatory that they go back to the very people with whom they have almost invariably sought a dialogue is highly flawed. It won't change anything.

À (1030)

Mr. Leon Benoit: How do you find the balance, though, between protecting a whistle-blower and protecting others who may have complaints raised against them by someone who has another reason for doing that?

Ms. Joanna Gaultieri: I believe you're referring to the slippery slope issue. Fundamentally, from a legal position, we can never advocate the abridgement of rights, such as constitutional rights and freedom of expression, just because other people may abuse the system. I think that's the answer.

The fact of the matter is, the studies have shown that whistle-blowers are generally the brightest, the most committed, and the most loyal employees and that they have tried hard to resolve the matters internally. Frivolous complaints may happen, but I think the people who try it will get weeded out very quickly.

It's a very arduous, debilitating process, and ultimately it comes down to whether we value public engagement and the public interest.

Mr. Leon Benoit: In terms of this legislation, you say it probably isn't worthwhile trying to amend it to make it effective. I think you said something to that effect in your opening comments.

Ms. Joanna Gaultieri: That would be one approach, obviously, to work with Bill C-25 and go through a process, but it would require so much change. One must also ask about the spirit of the legislation. To call it the “Public Servants Disclosure Protection Act” in fact really conveys to me that it is about controlling or managing disclosure and not about protecting whistle-blowers, which I believe is what we are here to do today. The two obviously go together, but I believe that while it may be subtle, the impression conveyed is that this is about managing dissent. Of course, this is what caused confusion with Mr. Heintzman last week.

I think we would do well to look at what effective whistle-blower protection laws are. There are many out there. GAP was retained by the OSC to draft a model whistle-blower law, and I think that should be used as a launching point.

Mr. Leon Benoit: Confusion with Mr. Heintzman? Maybe you could explain what you're getting at there.

Ms. Joanna Gaultieri: There was a technical briefing last week from the Office of Values and Ethics given by Mr. Heintzman. I attended it, and one of the things he declared right at the outset was that this is not a whistle-blower protection bill; this is about providing an internal disclosure mechanism.

Now, in fairness to Minister Coderre, he did speak to that later in the House, but I think we have to get the legislation right. It's important. It's long overdue, and I think a better way to do it is by starting with a fresh approach.

The Chair: Thank you.

Madame Guay.

[Translation]

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

Thank you for coming before the committee this morning. I can see that you are very committed and very determined. When this bill was tabled, it was to make life easier for whistleblowers, to support them in their action and to help them denounce practices which are either unfair or unjust, perhaps even illegal, without causing the whistleblowers to be penalized or to lose their employment.

You said that the bill is very badly drafted. Indeed, there is room for much improvement. I have two or three brief questions for you, including one on the role of the commissioner.

My party supports the idea, as do, I believe, several of us, that the commissioner should report directly to the House, as does the Auditor General. That way, the commissioner would be completely independent and would not have to report to a minister. I would like to know what you think about that.

It is important that we hear of your personal experience. We don't always see what goes on within the various departments, but we can learn a lot from people who have gone through a tough time, like you. It would also be a good idea if you could put down in writing and send to the committee any amendments or changes you would like to see to the bill. That way, when we study it clause-by-clause, we can propose the necessary amendments and try to improve the bill as much as possible. It's very important that we have legislation, but of course, we need to make changes.

So, what do you think of the role of the commissioner and that of senior officers in the various departments?

À (1035)

[English]

Ms. Joanna Gaultieri: You asked about the issue of the commissioner reporting to Parliament. Absolutely, unequivocally, the commissioner should report to Parliament, and I would go further. The commissioner needs an independent office; he needs to have an independent budget. That has not been spoken about much, but the issue of budget is absolutely critical. We know that in the past the Auditor General, who has great respect from parliamentarians and from the public, has had to say at times, I need more money to do my job effectively.

You asked about personal experiences. Whistle-blowing is, as I said, something so many people do not know they're about to engage in. It's a question of just being a dedicated public servant trying to do your job. So often the full impact of what you've experienced is something you only realize sometime later, when you may be very debilitated, having severe health problems, and you no longer have a place in the workplace. As I said, the retaliation is often very insidious and hard to pinpoint. It can be very hard to challenge. Bosses, of course, don't admit to retaliation. So I would suggest to whistle-blowers that one of the things they must do is assiduously keep a diary on their experience. This becomes critical.

But we have to, I think, have a very well thought out and aggressive campaign to post rights for whistle-blowers, so that they become aware of what they may experience. It's one thing for us to sit in committee or provide a piece of legislation, even a good piece of legislation, but if people are not aware of what their rights are, they will not feel any empowerment; they will sit in their offices agonizing over what to do.

Treasury Board itself has published statistics on the rate of harassment in the public service. It's very high. One in five people is being harassed. Given that we don't have whistle-blower protection, but we know harassment is often visited upon whistle-blowers, it's hard not to draw a connection between this unacceptably high rate of harassment and the failure to protect public servants.

What I can say is very sad is that you see so many people going into public service with great expectations, a great desire to serve, and they find very quickly that given that dissent is not respected nor tolerated, creative thinking and meaningful contributions go out the door very quickly, and you face just becoming quietly acquiescent, which has its own problems. The experience is quite devastating, and that is why I feel so strongly that we should get this right.

[Translation]

Ms. Monique Guay: Thank you.

[English]

The Chair: Mr. Shepherd.

Mr. Alex Shepherd: As I listened to your comments, you've focused almost totally on whistle-blowers. A concern I have--and it has been mentioned by other witnesses--is the concept of vexatious whistle-blowing. Clearly, I can visualize all kinds of incidents where somebody might want to become a whistle-blower because it served their own personal interest. If somebody thought they were going to lose their job, they might automatically become a whistle-blower and then have job protection.

We haven't talked very much about discipline for those who have brought forward vexatious whistle-blowing complaints. The legislation basically talks about balance. In other words, the penalties for those who are convicted, if I can use that word, of wrongdoing in the civil service would also be eligible for those people who brought forward wrongful whistle-blowing complaints. Is that a reasonable approach?

À (1040)

Ms. Joanna Gaultieri: No, our view is that it is not a reasonable approach. It sets the bar so high for a person who is already struggling in a workplace environment where it's difficult to speak out against the boss's agenda, so it's not reasonable.

As I said already, ultimately it comes down to what our values are. It's somewhat of a paradox to say we have free expression, but it's secretive free expression, or it's only internal free expression. There's a bit of a contradiction there.

I can say to you that in other jurisdictions where they've looked at the issue of vexatious complaints, the studies have shown that this is simply not borne out. I believe most people want to do their job honourably and want to make a meaningful contribution. You find out very quickly that to go up against the system and to challenge power is very difficult, and anybody who thought they were going to try it would abandon it very quickly.

The points you make are valid, but as I said, I don't believe it is legally justified to take away the rights of people, because people may abuse them. Other laws have recognized this, and you could argue that any progressive legislation would not go forward on the basis of the slippery slope argument. We have to give expression a chance, and I think we will find very quickly that real whistle-blowers....

After all, vexatious complaint is not real whistle-blowing, so they would not be protected by this act, and I don't think they would have a very good audience.

Mr. Alex Shepherd: But when you talk about rights, you invariably talk about the rights of whistle-blowers, but those people who are possibly being maligned have no rights.

Ms. Joanna Gaultieri: No. What I am talking about, actually, are the rights guaranteed by our Constitution, which are freedom of expression and freedom of association. These are fundamental, arguably inalienable rights. They're constitutional rights. Those are the rights I am referring to.

I am not suggesting that somebody who finds themselves the target of possibly even a malicious attack does not have rights. They have rights at common law, of course. They can bring an action for libel. The employees can be viewed as being insubordinate, and there are disciplinary measures for that. So of course they have rights, but ultimately what we're talking about here today is legislation that protects the public interest. One of the ways that is done is through expressing wrongdoing.

Mr. Alex Shepherd: But you believe there should be consequences for being wrong. In other words, if a whistle-blower were wrong, would there be consequences for being wrong?

Ms. Joanna Gaultieri: Somebody who brings a malicious attack should not get away scot-free. I would suggest that there are already measures in place that deal with that. We know. We've had whistle-blowers who have been suspended by their employers--most notably in Health Canada--because their employer found them to be insubordinate. So there are measures there and they would be used.

À (1045)

The Chair: Mr. Forseth.

Mr. Paul Forseth: Thank you, Mr. Chair.

Welcome to our committee.

You did mention in the beginning of your comments that you had a lot of extra paper documentation that you are going to give the committee. Among those was a checklist, and then you related that to GAP. What does GAP stand for?

Ms. Joanna Gaultieri: It stands for the Government Accountability Project. They are headquartered in Washington, D.C., and they have an office in Seattle as well. They were founded in the seventies.

Mr. Paul Forseth: Have you taken the present piece of legislation and gone down the checklist with it, so when you give us a checklist, you give us your version of the rating? Is that coming to the committee?

Ms. Joanna Gaultieri: Yes, that has been done, and it failed. It only passed on six points, and even some of those were problematic.

Mr. Paul Forseth: That's 6 out of the 25?

Ms. Joanna Gaultieri: Yes.

Mr. Paul Forseth: You mentioned in your testimony that you did start with internal processes and you gradually worked your way all the way up. Did you ever get to meet face to face with the minister?

Ms. Joanna Gaultieri: No, I did not.

Mr. Paul Forseth: You just wrote a letter to the minister?

Ms. Joanna Gaultieri: Yes, I did, a very reflective letter outlining the two issues, really. Whistle-blowing, invariably, or most of the time, involves the two issues: one, that of the public interest; and secondly, the reprisal.

Mr. Paul Forseth: Did you ever get an answer?

Ms. Joanna Gaultieri: Yes, I had an answer from Department of Justice lawyers. Threatening me with libel was one of the issues, but the problem was that there was no investigation ever pursued.

Mr. Paul Forseth: And what minister was that you were dealing with?

Ms. Joanna Gaultieri: That was Minister Lloyd Axworthy.

Mr. Paul Forseth: Have you ever tried to communicate with the present minister, seeing that there's been a bit of a shuffle in the changing of the guard?

Ms. Joanna Gaultieri: No, I have not communicated with him.

Mr. Paul Forseth: All right.

Ms. Joanna Gaultieri: I am on unpaid leave from the department.

Mr. Paul Forseth: One of the other things you talked about was that it's fine to have a bureaucratic regime, but you also talked about the concept of where are the courts and the redress of the courts in this situation. Maybe you could expand on that a bit: the usefulness of still having the possibility of going to court in the whole regime.

Ms. Joanna Gaultieri: I think that's a very good question and a very important point. I want to first state that my hope is that we will establish a level of integrity and an ethos of ethics and stewardship in the public service so that we would never even require this legislation, so that people would be respected and dissent tolerated, and so that dialogue could happen. But in the absence of that, we have to have strong remedial rights for the whistle-blower because the consequences can be very devastating.

If the matter gets dealt with quickly, then there may be very few damages to the whistle-blower. But the more serious the matter, the more challenging it is for the organization and for government, then the great cover-up that will probably happen. And in such an instance, the reprisals against the whistle-blower can be grave. As I said, the courts should be the ultimate place to go.

The reason why I raise this, and it's so important, is that although the bill is silent on the court and somebody may read it and say, of course, there is access to the court, that is wrong. In November 2003 the government passed the Public Service Modernization Act, and in section 236 of that act there is a blanket prohibition for public servants to be able to go to court. So this act didn't have to deal with it because that prohibition already exists.

Mr. Paul Forseth: Right. We recently had a private member's bill that probably is not going to get passed, but it again brought up the issue of psychological harassment concerning public employees, and we had a debate in the House about it. It was a Bloc bill.

I think the reason behind that bill is very good. It outlined a whole independent regime. And there may be something we could borrow from that, but to give some substance to that general discussion, just give us some examples of how you were psychologically harassed.

À (1050)

Ms. Joanna Gaultieri: The psychological harassment is often the most damaging. I would suggest to you that whistle-blowers are often not fired or terminated in a dramatic measure. There are reasons for that. First of all, that's a very obvious action to take. Also, for union employees, there is a duty then on unions to go to the PSSRB and challenge that. So it would then be open and debated.

What happens is that managers commence a campaign of insidious psychological harassment. They ridicule you in meetings. Privately, my bosses threatened me. They would laugh at me. I am a lawyer. They would laugh at my interest in looking at the legal aspects of this. There was humiliation, public ridicule. I would be told to shut up and not speak at meetings. I basically was completely muzzled. So that was the problem.

Mr. Paul Forseth: Thank you.

The Chair: On to Ms. Neville, please.

Ms. Anita Neville: Thank you for coming before us today.

I don't know anything about your situation, so I can't refer to that. As I'm listening to you, I'm thinking of the definition of wrongdoing. What I hear from you is more concerned with management issues, personnel issues, perhaps disagreeing with one's director. You made some reference to a boss's agenda. Are you talking about a personal agenda or a workplace agenda? How do you define the wrongdoing as you're speaking of it?

My other question is, can you tell me a little bit about your organization, FAIR?

Ms. Joanna Gaultieri: I'm glad you've raised that question about wrongdoing. This is really about the public interest. The wrongdoing, we advocate, is anything that would, in a judicial setting, be discovered to be something that is illegal or that is an affront to the public interest.

Wrongdoing can be things such as gross mismanagement, waste of public funds. It can be something that is illegal in the sense that it violates a pre-existing statute. I pointed out that it must also cover departmental directives, rules. So the wrongdoing is not about bosses' personal agendas. I mention bosses' agendas because they are the bosses often who are requiring you to overlook the governing framework. So they are mainly the vehicle to express that the wrongdoing take place. The wrongdoing is about violation, as I've already discussed.

Very briefly, FAIR, as I have mentioned already, is a result of my experience when I got hundreds of phone calls from the public and from public servants. As a lawyer, I felt so deeply about these issues and about the need to protect people who fundamentally were just wanting to do their job. The protection was nowhere at that time.

The major public service unions had not taken much of a role in this. In fact, they have no jurisdiction, pursuant to the collective agreement or the Public Service Employment Act, to deal with harassment, which is what is visited upon whistle-blowers. So I felt that we needed to establish a public interest group. That's what we did.

Ms. Anita Neville: Are there other members of FAIR, and do you act on behalf of other people who are identifying wrongdoing in the workplace?

À (1055)

Ms. Joanna Gaultieri: Ultimately, I believe that is one of the roles FAIR should play. I think there are really three key roles that an organization such as FAIR should play. They are: one, representation; two, flowing the information to the public through a campaign, whether it be with the media or other public interest groups, NGOs; and three, helping Parliament in establishing laws that protect the public interest and protect whistle-blowers. That would be the ultimate aim.

We are a grassroots organization. Yes, there are other members. We do not represent people in a legal sense right now, but we provide assistance, guidance, and counsel.

The Chair: Mr. Gaudet, you have time for a brief question.

[Translation]

Mr. Roger Gaudet: Thank you, Mr. Chairman. My question is a short one.

You are the first person to say out loud what everyone is actually thinking but not saying. A little while ago, I asked other witnesses for their views, but they did not dare tell me exactly what they thought because they were public servants. So thank you for your answer. I also have a comment to make. It's the same in all political parties—people who say what they think are pushed aside. We even see it with the party in power. The Prime Minister bumped people who were against him or his ideas. The same thing happens in all parties. In other words, denunciation is a part of life. We have to live with it, and we need legislation that can prevent retaliation.

Thank you.

[English]

The Chair: Ms. Gaultieri, you've talked a lot about the rights to report. What do you think about the duty to report?

Ms. Joanna Gaultieri: Mr. Chair, I've heard you mention this point and I think it's a very good one. I believe the words “shall report” must be included in the legislation. I think it assists whistle-blowers in knowing what is required of them. I believe there should be a duty to report.

The Chair: I must admit, I have been concerned about people agonizing and coming up with rationalizations, but if it's there clearly in the legislation that members of the civil service have an oath of loyalty to the employer, and that this really means to protect the public interest, then it sounds pretty straightforward to me.

Tell me something. This question about reporting directly to Parliament has come up a lot. Do you appreciate the difference between someone like the Auditor General, who is an officer of Parliament and reports directly to Parliament, and, say, for instance, Ms. Barrados, who is the President of the Public Service Commission? She does not report directly to Parliament. In fact, I believe she reports to the Minister of Heritage. Are you aware of what the differences between those two reporting relationships mean in fact?

Ms. Joanna Gaultieri: My response to this issue of reporting to Parliament, Mr. Chair--and I hope you'll assist me in this--is that often in matters, especially, of important public interest, there is the question of perception. What the technical differences are is one thing, but the public perception is very important too.

The public is not familiar with all the nuances of parliamentary procedure and reporting lines, etc., so for the public what is important is that Parliament is supreme in this Westminster system of Parliament. The public believe that independence requires a person to report directly to Parliament, rather than through a minister, even if it is just a formality and the minister would have no authority to make any changes to the report. I think in this instance it's a question of honouring that public perception.

The Chair: You're probably right, it is substantively perception. The only difference I'm aware of is that an officer of Parliament, someone who reports directly to Parliament, has an opportunity to table a report in Parliament through the Speaker of the House.

Á (1100)

Ms. Joanna Gaultieri: That is correct, Mr. Chairman.

The Chair: Whereas Ms. Barrados does her report and it's the Minister of Heritage who tables it in the House. The only difference between the two is who tables the report in the House. It has nothing to do with who pulls the strings or who operates the department or the agency or commission or whatever.

So I'm not sure whether or not we're giving him a false impression about what it means to report directly to Parliament, that somehow when that person comes to the fore the MPs are going to take charge. It doesn't happen. Certainly we have that opportunity for all commissions and agencies through the committee process, etc.

Now, my last question has to do with why people would want to pursue a matter like this personally when they know the culture they're in. They'll probably get some reading about whether or not there's any receptivity within the department in which they work. Why would they want to be identified, as opposed to using a brown envelope? Why wouldn't people just prepare the information, the facts of the allegation to the best of their knowledge, and give it to others who might act on it? What drives someone to need to be the one who will carry it, the one who is going to fight the system?

Ms. Joanna Gaultieri: Mr. Chair, that's an excellent question. Bear in mind that whistle-blowers have been found to be very dedicated employees. They are professionals who feel they should be able to carry out their job duties. They feel very strongly about the public interest, and they feel strongly about the rule of law being respected.

“Brown-enveloping” may be effective--and one of the most obvious examples is Watergate--where an employee can brown-envelope and say, “We have a tape; we'll deliver that tape to you”, and then there's this explosion. But in a lot of these matters it's not so clear, and the whistle-blower in fact is needed to help the person who's getting the information navigate through what's going on. Often it's not something that's so black and white. It may be something that also reaches over a fairly long period of time.

I think many whistle-blowers in fact do not want to proceed in anonymity because they feel they should have a right to come forward on these legitimate issues. They're not grey areas. Whistle-blowing is about something that is often quite clearly defined. In my case, the issue of the Treasury Board regulations was so clearly defined, I felt the regulations had to be respected.

So I think there should be a choice, but if a whistle-blower wants to be on the record, then we have to look at honouring and protecting that person.

The Chair: Thank you very kindly. Another committee has this room, unfortunately, so we're going to have to adjourn the session, but thank you kindly for your input.

Ms. Joanna Gaultieri: Thank you, Mr. Chair.

The Chair: Colleagues, I look forward to our meeting on Thursday in room 371, the other room.

We're adjourned.