OGGO Committee Meeting

    I call this meeting to order. I see a quorum.

    Colleagues, we're dealing with main estimates. We have as witnesses the Office of the Public Sector Integrity Commissioner, Ms. Christiane Ouimet. Along with her we have Henry Molot, the deputy commissioner, and Mr. Joe Friday, general counsel.

    We're delighted to have you.

    I understand that you'll begin with an opening statement. This particular office is relatively new in the scheme of things, in the history of the country, so hopefully your opening remarks will touch on functions and responsibilities. We will then go to questions.

    The microphone is yours.

    Thank you very much, Mr. Chair.

    I'm very pleased to appear before the Standing Committee on Government Operations and Estimates, and yes indeed, Mr. Chair, we'd like to discuss the mandate and the rather complex work of my office and hopefully present you with a clearer idea of the mandate that has been given to us, but as well, of the quality of the work of my office as it carries out its mandate.

    It is an honour to have been appointed Canada's first Public Sector Integrity Commissioner, by joint resolution of both Houses of Parliament in August 2007. My office is responsible for implementing the Public Servants Disclosure Protection Act. Our mandate under this legislation is, first, to establish a safe and confidential mechanism enabling public servants and the general public to disclose wrongdoing committed in the public sector; and second, to protect from reprisal public servants who have disclosed wrongdoing and those who are cooperated in investigations. In short, it's one act, two regimes: disclosure of wrongdoing and protection against reprisal.

    Our ultimate goal is to enhance public confidence in our public institutions and in the integrity of public servants. In fact, the preamble of our act expressly recognizes that the federal public administration is part of the essential framework of Canadian parliamentary democracy, and that it is in the public interest to maintain and enhance confidence in the integrity of public servants through a disclosure and reprisal protection system. We are guided at all times by the essential concept of the public interest.

    I would also like to emphasize the key role that our public institutions play in the lives of all Canadians, and this role is never more important than in times of economic uncertainty. Strengthening our federal public administration, in whatever way possible, is both an expectation and obligation on the part of my office.

    Our second report is built around the theme of “Building Trust Together: A Shared Responsibility“. Three guiding principles: inform, protect and prevent are the key pillars of our work, and I will use these three principles to frame my submissions to you today.

    First, inform.

    My office has jurisdiction over the entire public sector, with the exception of security establishments, and goes beyond the core public service. It includes, for instance, crown corporations. That constituency is approximately 400,000 employees. In addition, our act specifies that members of the public can also come forward with information about a possible wrongdoing. Our constituency is significantly broadened as a result. Part of our duty is to inform, so that stakeholders understand what we do, why we do it, how we do it, but as well, what we're not doing.

    It remains a challenge to ensure that all public servants know about the legislation and the role of my office. Of course, we rely on the support of our colleagues in the public sector, the media and indeed members of this committee and your fellow parliamentarians, to help us ensure that people are aware of our existence and our mandate.

    Our annual report is also a key means of reaching out to all public servants and informing them about our role and our approach. I am pleased to have been able to provide to you today copies of the brochure that you now have at hand, that we are distributing widely throughout the public sector and that provides key information about my office and our work.

    Let me now say a few words about the second pillar of our mandate: protect. Our act specifically deals with protection on a number of fronts. We have exclusive jurisdiction to handle reprisal complaints; the protection of public servants who come forward with a disclosure or who participate in an investigation is also one of our key responsibilities. Protection is central to our mandate. We must also protect the identity of the discloser who comes forward to us in good faith, and we must protect the information that comes into our hands as a result of our work.

    We thus have a number of interests at stake: the interests of those coming forward in good faith and who have faith in the public sector and want to uphold its long tradition of ethical behaviour; the interests of those same persons in being protected against reprisal for coming forward and not being punished for doing the right thing; the interests of the chief executive, on behalf of his or her organization, in wanting to manage effectively and honestly, in knowing about problems as soon as they occur, and in being able to respond to them; the interests of those against whom allegations are brought and whose reputations and careers may be at stake; the interests of an organization in being able to continue to operate when we're called in. Our job is not to shut down an organization when we respond to an allegation, but to ensure that the problem is corrected.

     Also at stake is the public interest. We are and will continue to be guided by the public interest in all cases.

    These are the essential interests that must be recognized and balanced.

    Finally, to prevent is the third pillar of the mandate. Very early in my mandate, with the support of Parliament and eminent jurists, we collectively agreed to interpret my mandate as something broader than mere enforcement. We truly believe that a strong prevention orientation is critical to our success, along with education and outreach. My office will certainly respond fully and seriously to every inquiry, to every allegation of wrongdoing, every complaint of reprisal. We will not hesitate to use the full investigative powers provided by the act. However, that is not to say we'll confine ourselves to two options: investigate or close the file.

    An enforcement model is simply not enough for us to achieve our goal of promoting ethical behaviour; that is, creating an environment in which valid concerns can be brought forward and dealt with effectively, and enhancing confidence in our public institutions.

    We have a responsibility to identify vulnerabilities. Let me repeat that, where wrongdoing does occur, we will respond as effectively and efficiently as possible within the framework of our legislation.

    I'll offer a few words about the annual report, if I may.

    You will note that the three guiding principles are still there: inform, protect, prevent. But as well, we've added the very important component of shared responsibility. This year we thought it would be important as well to raise concern about small federal agencies. My office is one such agency, with all the challenges and opportunities. By the same token, the whole issue of capacity to ensure that mistakes are not made is quite central. There is urgent action required to ensure that each of our institutions is equipped to handle its mandate and have the internal capacity to deliver on it.

    I also spent some time discussing crown corporations and vulnerabilities around governance. Again, this is a very important instrument to delivery of policy, operational, or specific mandates. The report in that regard discusses five myths and associated misconceptions. I'd be curious to hear your comments and suggestions.

    Our third chapter talks about investigation. We highlight four specific cases, each of them quite complex, wherein we describe not only our obligation as we implement the act, but as well, the very important approach of acting as soon as possible to find practical solutions. Our involvement in any case may result in a net gain, a value-added, but we're confident that we do bring that value-added.

    We've also devoted a chapter to the fear of coming forward. Why are people afraid? Indeed, that fear is real and complex. Most employees just want the wrongdoing to stop. They want the problem to be fixed as quickly and informally as possible; they do not want a long, formal investigation. But disclosing wrongdoing is a difficult thing to do, even with all the protection offered by the act. My office will continue to be sensitive to this challenge. We've included, in fact, the perspectives of people who've come forward in the past and of those organizations that work with these people. We've begun a consultation process. We value their unique perspective and will pursue the work with those organizations.

    The annual report also describes the impact of organizational culture in the decision to come forward. It is crucial to establish a culture in which public servants can raise their concerns openly and with confidence that they will be treated fairly when they do so.

    Our chapter on prevention, which, as I mentioned earlier, is at the heart of our mandate, reports on our efforts to reach out to small agencies and crown corporations. It also speaks to two target communities within the public sector: senior leaders, and middle managers. They are the culture carriers of the public sector and are key allies.

    The photograph on the annual report was taken at our September 2008 symposium that brought key players together. There were over a hundred participants in addition to those in the photograph.

    We also report on our very preliminary steps in benchmarking Canada's disclosure regime against countries with similar systems: the United States, the United Kingdom, Australia and New Zealand.

     I'm here as well to talk about my budget plan. We've shared with you a brief document that gives an overview of the budget spent by my office in the fiscal year 2008-09. Our actual spending was $3.6 million. We do believe this amount is adequate to meet our current demands.

    My office is still very much in a set-up mode, which makes it difficult to predict how many cases we'll receive and how many staff will be required, but we did build the capacity and the expertise to handle every single case with all of the attention that it deserves.

    I have put in place a core team of professionals with our mandate very much at heart. We recognize that there will always be a need to have access to external experts in specific areas, as we have done in the past.

    In conclusion, in 2009-2010, I expect to focus mainly on making known the mandate of our office as well as improving our case management system. As our work progresses, we will report to you on the resources required to continue to do our important work.

    A five-year independent review of the act is required, and we intend to gather the information necessary to support that review, to guide Parliament, and to ensure that any recommendations that flow from it are fully informed and well supported.

    It's an honour to appear before you, Mr. Chair and members of the committee. I welcome any questions you may have.

    Thank you very much for your opening remarks. They'll be very helpful to members.

    I should say that our order of reference today does not mention your annual report, but that turns out to be, as you describe it, a fairly significant document. You've used it creatively to inform the public about the mandate of your office. And while in some sense you're a work in progress—in other words, you're still in set-up mode—I'm sure colleagues around the table appreciate that you can still describe yourself as lean and mean and doing the job with just the right amount of taxpayer dollars.

    Having said that, I'll turn to the Liberal Party, and Ms. Foote, for eight minutes.

    Thank you, Mr. Chair.

    Thank you for appearing before us this morning. I really appreciate that you've come here to give us a little bit more insight into the act and what it is you've been tasked with under this legislation.

    It's interesting, as I listened to you and read through your document as you were going through it.... I guess this would otherwise be what we've all thought of as whistle-blower legislation and the negative connotation that goes with that type of reference to a whistle-blower. But also there has always been a concern, when you talk about protecting the identity of the person who is making the complaint, as to whether or not there is fairness in that for the individual or whoever the complaint is being levelled against.

     How do you handle that? Does a person about whom the complaint is being made not have the right to know the source of the complaint? I'd like your thoughts on that, because we're trying to be fair to everyone, but I would think that would also be a question, that a person or an organization that is being complained about would have the opportunity to question the validity of the complaint.

     Thank you very much, Mr. Chair.

    These are very valid observations. Perhaps I'll use a preface.

    First of all, it is true that whistle-blowing is not used in the legislation, and intentionally so, because it does carry a pejorative connotation. That's why we're talking about disclosure of wrongdoing. I think there is a difference. That's why I spent some time talking about the “various interests of parties” part of the process.

    First and foremost, the act talks about protection to the extent possible. Protection should never be at the expense of natural justice and should never be at the expense of the institution itself, which must continue to operate notwithstanding concerns that have been brought forward. The act talks about effectiveness and also the rapidity with which we intervene. We don't want to have long processes that cast doubt on a number of people.

    Nonetheless, I think Parliament did want public servants to come forward, to raise concerns. That's why, when I go around the public sector or across Canada, I always make the following comment. Each organization should make sure that it has solid, credible disclosure processes. Supervisors should know about issues that are of concern. There are very basic ways of doing it, including having conversations with dissenting workers, or agreeing to disagree. But you do need to have that culture of saying, “I made a mistake. I'm prepared to raise it, and something is going to happen.”

    I would also guide the members, Mr. Chair, to our website, where in the context of our symposium in 2008 we had a very good presentation from one of my counterparts, the Honourable Patrick Ryan from New Brunswick, which talked specifically about what he called qualified protection.

    Finally, in the annual report, we do talk about cases where the three disclosers changed their minds. They didn't want to pursue it. Still, we brought the matter to the attention of the chief executive, who took absolutely all measures to address the concerns, whether they were founded or not. I think that's the aim of the legislation.

    This is limited to the public sector. I'm curious about whether or not any thought has been given to anyone external to the public sector who may have an issue or a complaint that they wish to bring forward. Is that something you've considered or thought about?

    No. In fact, any member of the public can come forward with respect to a concern about the public sector, as I've described it. Any member of the public is invited to raise concerns about public administration.

    That's interesting.

    In your annual report, you talk about small agencies being particularly vulnerable to serious mistakes, essentially due to a lack of internal capacity. You say that urgent action is needed. I'm wondering if you could elaborate on that in terms of the urgent action you're referring to.

    In fact, I've had a lot of conversations with newly appointed or not-so-newly-appointed heads of organizations. My small organization has the same reporting responsibility as does a large department. We're just undertaking, with the Office of the Auditor General, a full audit of our activities—that's more than 700 hours of verification—and of course we're an open book. But it has an impact not only on our organization but on our service providers. With a staff of 20, I need to buy my human resources services and my financial expertise elsewhere. Otherwise, it would not be cost-efficient to have my own units.

    Similarly, there are what are called micro-organizations—with 500 or fewer—or the small and medium-sized agencies. There's a high rate of turnover of staff. In the annual report, we recommend a number of measures: certainly assistance from the portfolio deputy minister; certainly training and continuing education for people who come from the public sector and who don't know the intricacies and the complexity; and what are called shared services or common services. The Auditor General did mention that in her last report about small agencies. For a small cost, you can regroup those services and have some sort of comparison analysis as well of how issues are handled.

    So we have a series of very simple measures and lessons learned that perhaps the central agencies, with the assistance of other agents of Parliament, could put into place.

    I just want to go back to the idea of the public being able to lodge complaints. Is that well known? I know that this is referred to as the Office of the Public Sector Integrity Commissioner. How do you make it known to the public that you do actually take complaints?

    It's under section 33 of the Public Servants Disclosure Protection Act. It invites any members of the public to communicate with our office with any concerns.

    There's a very specific test, because members of the public are probably not as knowledgeable about the functioning. In fact, the test is slightly lower with respect to the level of information that can be brought forward. I do recognize in the annual report that because of capacity reasons in the setting up our organization, our focus has really been on the core public service as opposed to members of the public, although as part of an anecdote in my first annual report, I did reach out to farmers in my community, in my hometown, to find out if they knew that I existed. Did they understand why I was set up? I have that quote in my first annual report. They didn't know why we existed. It is confusing for the layperson, but maybe we have this office because we need it at this point in time.

    We commit to members of this committee to reach out more to members of the public in the coming year to explain to them that Parliament took those issues seriously. We do want Canadians to know that we have been given that mandate and they have the opportunity to raise concerns.

    Mr. Roy, you have eight minutes.

    Thank you, Mr. Chair.

    Good morning, Ms. Ouimet, and good morning, gentlemen. Ms. Ouimet, I have a very particular question for you. I am not asking you to comment on the case I am going to mention, but, if I was a public servant these days, I would have great hesitation in condemning practices in the public service that seemed to me to be wrong. Let me explain why.

    Daniel Leblanc, a Globe and Mail journalist, had a source inside the public service or the government. Because of that source, he broke the sponsorship scandal story. Today, Mr. Leblanc is in court where people are trying to force him to reveal his source even though freedom of the press is recognized in the Constitution.

     If a public servant registers a complaint and discloses information that might be considered confidential, could the court not require you to divulge the name of that source? The objective of the act is also to protect those who expose practices that are deemed to be unacceptable. But, if you find yourself in court, problems can arise and you can perhaps be forced to reveal the name of the person who disclosed those practices on the grounds that the person has revealed confidential information.

    The case currently before the judge is extremely important in this regard. If the court forces Mr. Leblanc to reveal his source, not only will the freedom of the press be affected, but your office will also be affected in a very significant way. The legislation that we have at the moment is in danger of becoming practically unworkable because no one will want to disclose anything anymore. I do not want your opinion on the case itself, but I would like to know if you have considered the possibility of that kind of thing happening.

    Mr. Chair, we certainly take our role of protecting the identity of people who come to our door very seriously. That obligation does not just apply to our office. I neglected to mention that, as part of the internal processes, each department and deputy head has the same obligation to protect the identity of those who decide to speak out. But, yes, in preparation for my appearance today, I asked myself and I asked my deputy commissioner, who is one of Canada's experts in administrative law, about the extent to which I can divulge details published in my annual report and still maintain the balance of night toward justice.

    At the end of the day, I feel that all members of the committee and all members of Parliament are interested in truth, legitimacy and the public interest. This will be a very delicate balance. The courts will have the last word on what the ideal balance is. In the meantime, I can assure you that we will do everything possible. Our previous practices have shown that disclosers were so afraid of being identified that they did not wish to take the complaint process any further. So, we withheld the details of the disclosure. We arrived at complete solutions with organizations without having to provide evidence. In cases like that, however, we cannot always check everyone's credibility. It all comes at a cost. So we have to maintain a balance. My commitment today is to provide the best protection than I can.

    My question goes further than that. To what extent can you assure people who make disclosures to you that a court will never force you to pass on their information? Your office has not yet been prosecuted, but if it were, do we have a guarantee that you would refuse to reveal information even if the court ordered you to? It could get to that point. This is the whole question of the confidentiality of the information that is provided to you.

    My obligation will be to examine the facts carefully and to apply the legislation, the tools that Parliament has given us. The final decision will lie with the Federal Court. There are practical tools that can be used. For example, I would not hesitate to ask that proceedings be conducted in camera and that documents be sealed. I worked in the Solicitor General's office for five years and I know that any area of security has its own particular measures.

    Can we provide you with a cast iron guarantee? Unfortunately, Mr. Chair, that would be difficult, and I would not like to provide you with incorrect information.

    Of course I understand that you cannot give me a cast iron guarantee. In other places in the world with similar legislation, have cases gone to court? What has happened there?

    Yes, we have looked at the four countries that interest us most: New Zealand, Australia, the United States and Great Britain. I spent a few days in Washington looking at the system there. Ours is the most comprehensive system: disclosure, reprisals and investigative power are all together. In some countries, they have the power to accept reprisal complaints, but investigations are conducted by a third party or a separate organization.

    The United States is not alone in having systems where the emphasis is placed squarely on matters of nuclear safety and on security. Often, disclosers do not hesitate to reveal their identity. Several have even made the headlines. So it is very different. Our mandate is very recent; at this stage, in some cases, we have asked the discloser for permission to communicate directly with the senior officer. The senior officer is the person responsible for the implementation of disclosure processes in each department. In some cases, we obtained that permission. So we get creative, but always so that the public interest is served.

    I have a question about the complaints that you have received. If I understand correctly, not one single complaint is currently being dealt with. In your report, you said that “22 were closed on the basis that the subject matter could be better dealt with under another act of Parliament.“ Were those really complaints or disclosures of wrongdoing? What kinds of complaints have you rejected because they could be better dealt with under another act of Parliament. What other acts of Parliament deal with disclosure of wrongdoing?

    First of all, let me go over the figures from the last financial year in broad terms. There were 151 requests for general information. If we take away the files where the discloser realizes that there is after all another way of going about it—because, ultimately, we want the best act, the best procedure for dealing with the request and because private interests are often involved—there are 76 allegations of wrongdoing, or disclosures, and 23 reprisal complaints. When all the accounting was done at the end of the financial year, there were 15 active disclosure files and one under investigation. After the preliminary review, there are two files that we deal with in more detail in our annual report.

    I mentioned 23 reprisal cases. Of those, 21 were dealt with under the act and one other file, quite a significant one that had been ongoing for several years, was closed. There is one other that is briefly mentioned in the annual report. When we say that we have referred a case to be dealt with under other existing acts, we mean, for example, to the office of the Auditor General, to the Public Service Staffing Tribunal, the Human Rights Commission, and the list goes on. There again, even if we ultimately have no jurisdiction in dealing with a file—and I would like to tell you that, for 76 disclosure cases and 23 reprisal cases, a lot of time and attention is required—we often have to talk with the discloser, first to provide him with some guidance. We also have to ask what his objective is, what he expects to get out of the complaint. This also sheds a lot of light and, once more, gets us involved in all the cases to channel them. Sometimes the discloser realizes that he is knocking on the wrong door. Sometimes, too, people are very emotional; we are their last resort. So, for each file, we look at all the relevant parts of the legislation, and my office cannot get involved if there is a process already underway.

    Thank you. Now we move to Mr. Gourde, who has eight minutes.

    Thank you very much, Mr. Chair.

    Welcome, Ms. Ouimet. I am pleased to have you at our committee as a witness.

    You mentioned that your mandate is still new, but I think it is a very good one that will provide you with excellent insight into the way of developing all these strategies. You drew inspiration from other countries. Can you also tell us that other countries are drawing inspiration from us?

    Thank you very much for the question.

    Since I took the position, we have, in fact, looked at similar situations. We recruited one of the country's experts, Professor Ken Kernahan, who had already been conducting research internationally, to help us, not only with methods of comparison, but also to find out about case law and procedures elsewhere. There is no point in reinventing the wheel. Following the recommendation of experts in the area, we looked at four countries. The Canadian model is unique. I use that word accepting that some will say that it is not the right one. But I think our model brings together best practices in a number of respects. But it is a very complex act, with a lot of provisions to take into account.

    I am going to be meeting my counterparts over the coming months and into next year. We are also going to invite some to Canada and we intend, always with Parliament in mind, to hold a symposium in 2010 to bring experts together. I have already met my Canadian counterparts, from four provinces with a similar program, and we are studying success indicators and implementation. As I indicated previously, our structure is one of the only ones in the world where disclosure, reprisals, powers of investigation, exclusions and inclusions are brought together. That all adds to the complexity. Some areas of security are excluded, and, once again, we will have public interest tests developed as a result of the case law.

    As we know, there is going to be a lot of renewal in the public service in the next five or six years. You are going to have to inform the new employees about the entire process.

    Could that whole process lead some Canadians to be afraid to join the public service? New employees can unintentionally make mistakes as they learn. Could that be considered voluntary or involuntary? How are you going to demystify the process so that people can defend themselves?

    That is an excellent question, Mr. Chair.

    We are working together with the Canada School of Public Service, which is going to train that new generation for all departments.

    Very early in my mandate, I decided that I would focus on the middle managers, because they are the key group that is going to bring the new generation in. We are going to train them in the basic areas: staffing, financial administration. I have spoken to several hundred managers. I wrote them a mandate letter; it is posted on my website and I hope that it gets them engaged. It also appears in part in my annual report. In it, I talk about the importance of making sure that leaders dealing with the public, with service delivery, are well trained, precisely because they are part of today's new generation and they will be part of tomorrow's. I talk about mentoring, and about integrity and ethics, but as everyday values.

    If parliamentarians have other suggestions, I would be happy to hear them. Meanwhile, the letter is on the website and, judging from the number of people consulting it, it is raising a good deal of interest. There is still a lot to be done, and we are going to continue along the same lines.

    So you are going to champion this new generation of new executives who, in turn are going to champion... That is quite a process, and it is interesting. I congratulate you.

    Thank you. I have no further questions.

    Thank you.

    Mr. Dewar, for eight minutes.

    Thank you, Chair.

    And thank you to our guests. It's good to see you again.

    I wanted to start off with the fact that the record almost seems to be too good. I say that not because I'm looking for things that don't exist, but because I think it's interesting.

     I'll get into a little bit of some of the points you made about how you see your office and its mandate.

    I was on the committee for Bill C-2. For the record, I don't steer away from the word “whistle-blower”. I understand why you have it in your legislation. Many of the people I've worked with consider themselves whistle-blowers, and it's not a pejorative term to them. In fact, it's something they did for the public interest and they don't see it as a negative; they see it as something they did with integrity. So I guess it's in the eye of the beholder, perhaps.

    You mentioned and enumerated the cases and what happened with each of them, and what direction they went, and I appreciate that. But I just find it unbelievable, to be frank, that we have no cases of wrongdoing to date. As I said, I think of this in terms of the fact that we've had an office in operation for not quite two years, but one that has being ongoing. I appreciate that it's new, but I just find it strange that we don't have any cases of wrongdoing.

    So my question is, do you find that strange?

    Thank you, Mr. Chair.

    First, let me clarify, with respect to the terminology of “whistle-blowing”, that this is the general reaction I have received. In fact, I have used it occasionally so that people understand the mandate with regard to the term “whistle-blowing”.

    Yes, I understand that, and I appreciate it.

     So I do not want to depict anybody who came forward in the past years as not doing the right thing. I know they've been motivated by the public interest.

    This is an absolutely legitimate question you're raising. I've put the question to union leaders. In fact, I have a specific initiative that I've launched with union leaders. I've put the question to them: do you think there's a lot of wrongdoing in the public sector? The answer is quoted in my first annual report, that there is a perception that there is.

    Does that mean there's no wrongdoing? Does that mean that people are not afraid to come forward? In fact, I devoted a full chapter to this issue. People do remain concerned about coming forward.

    Does that mean that chief executives are oblivious to their responsibility? I've worked for more than 25 years in the public sector, and in each department at the time, even without the legislation being applicable, we have had our sensitive cases. Chief executives want to find out if something is wrong in their organizations. Of course, there have been a few incidents in the past.

    I invite any members of the committee.... In fact, as I've said before, we've worked with advocacy groups, and they remain a very important voice. If there are issues, people can come forward in full confidence to talk to our lawyers and investigators, and in each case we will look at the issue.

    I appreciate that.

    One of the other things we were looking at is this. You were mentioning other jurisdictions. You know that in the U.K. they've set up their own system. They had about 150 cases of alleged reprisals in the first three years, an average of about 50 per year. Granted, it's a larger jurisdiction, I appreciate that, but it leaves me wondering why there's not a single case here. I'm the son of a public servant, I represent public servants, so don't get me wrong; I believe they do good work and that often there are misperceptions.

    I want to go back to some cases in the past, because that's how we got here, and cases that are still in front of us. I'm thinking of Ms. Gualtieri and Mr. Chopra and his colleagues. You aren't able to touch those cases, I know, but it is helpful to understand the effect they might have. For the record, just so people know, the government is still fighting both Ms. Gualtieri and Mr. Chopra and his colleagues in court, spending an awful lot of money. I was hoping they would deal with it. That sends a chill, in my opinion, to people who see that people who were responsible, I believe, in many ways...and I think if you talk to Mr. Poilievre and Mr. Baird, they knew of the cases as well, and it was a certain motivation to create your office.

    It's strange to me that on the one hand we have your office created, yet we have the government still fighting cases in court against the people who were the motivators to have this office. My question to you is, are you a bit concerned about the chill effect of these latent cases, the cases that are still in front of us, what that does in terms of the message it sends out, because the government's still fighting it; and if so, have you voiced your concern to government?

    I'll say just a few words about Public Concern at Work, which is the organization I believe the member is referring to in the U.K. That has a very different mandate. It covers hospitals and some education systems. It was one of the first organizations I contacted when I took office. I even hosted one of its representatives here in Canada. We pursue a little more actively...because the U.K. system is different. In fact, they did need that organization very much for a number of reasons. I'm happy to elaborate on this.

    With respect to some of the people you've mentioned, we've reached out to them specifically. I've been part of conference calls in Washington with some of those representatives to ask questions. What has been your experience? What should we be doing to be more à l'écoute? What are issues of concern? We are pursuing it, but we are going to pursue it in a more rigorous way and in a formal consultation process. So of course I can't deal retroactively, the member's quite--

    No, my question is this: are you concerned about the chill effect from their cases, and have you voiced that to government? That was all.

    I am concerned that people are afraid to come forward. I've written a whole chapter in the annual report, yes.

    Okay, not referencing those specific cases, but just the idea.

    The concept is very important.

    If I may, I'll ask you about a specific case, and you'll tell me whether or not you can speak to it.

    You're aware of the firing of a member of the public service, July 2008, who worked for the Canadian Food Inspection Agency. He was, I believe, doing the right thing, and it fits into the frame of your organization, at least in my perception, of his providing information that he thought was in the public interest, but he was fired. I'm wondering if he has come to you and if you're dealing with this case.

    I don't know if that's the case.

    Mr. Pomerleau is the name, just so....

    We have pending cases that we're not going to comment on. I can't deny or confirm whether we're looking at those cases, unfortunately.

    When we look at the legislation, one thing that was of concern and certainly was underlined was access to funds.

    Mr. Dewar, I was intrigued by the last question and I wasn't watching the clock, so you've hit eight minutes. In fairness to the crew here, we'll--

    Fair enough. Thank you, Chair.

    Thank you very much.

    Ms. Hall Findlay, for five minutes.

    Thank you, Mr. Chair.

    Thank you very much, all three of you.

    It's nothing personal, but clearly the questions are focusing on Ms. Ouimet.

    When the Accountability Act was brought in, everybody supported the concept. I know that's not your act; I raise the point specifically, though, because although it sounded very good in theory, in fact the detail of that particular act has in a number of cases been seen to almost stymie the functioning of certain aspects of the civil service. As a result of an attempt to regulate every tiny piece of everyone's activity, people stop trusting each other and stop being willing to take any kind of initiative for fear that it will be challenged or that it may break the rules.

    I recognize that there is a line and that it can be a fine one, but I do remain concerned that the detail of the Accountability Act has perhaps gone too far.

    I am intrigued by some of the questions we have had today, and perhaps not a really fulsome answer, in the sense that we talk about natural justice, and when somebody makes a complaint, we'd like to think it i's in the public interest, but there are two aspects to it. First, do you sense a possibility that because of this detail, people may be more concerned about doing their jobs, even if they're doing their jobs properly, but are afraid of being targeted?

    That point ties in with the second piece I mentioned, which is that we like to think it's in the public interest, but I've been in the corporate sector for a long time, and it isn't always done in the public interest. The desire to not disclose the complainant would to me be very difficult for the person whose behaviour is the subject of a complaint, and the identity.... I've heard the talk, but I still don't know how you actually address those aspects in the day-to-day operations.

    Mr. Chair, these are excellent observations. We're very conscious of, first, not paralyzing the system and, second, of not shutting down institutions that absolutely must continue to operate. It would be extremely disruptive. When public interest is guiding the disclosure, what they ultimately want is an end to the behaviour, an immediate correcting action, and a visible change in the management.

    We've also looked at the private sector. We had the senior VP of Petro-Canada at our first colloque. We had as well Mr. Thomas d'Aquino, who is very well known and who also provides us with a quote in the annual report. Again, the earliest intervention at the earliest possible time is what people want, because reputations of well-known institutions might be at stake. To quote Mr. d'Aquino, leadership at the top is what counts. But at the end of the day, we're very conscious that you can also have wrongdoing by omission. If you don't have a timely intervention, that is extremely costly to the taxpayers, and then you're not doing your job. You may be safe from a risk management perspective, but in the end, we do want to encourage organizations to manage, to do performance management, and to take decisions in a timely fashion.

    Next year we want to take a look at systemic issues, and perhaps members of this committee could guide us. In fact, that is one of the initiatives we want to launch with the unions I just mentioned. We want to look at the key challenges or systemic vulnerabilities and at some practical options and solutions so that we don't go two or three years down the line, when it's too late, and we don't paralyze organizations.

    That could hopefully be subject matter.

    I'm intrigued by your comment that you can actually have a wrongdoing by omission. Could you very briefly highlight exactly what wrongdoing means in your world?

    Wrongdoing doesn't happen overnight. Wrongdoing, according to the academics I've consulted, is issues that are wide-ranging throughout the organization and have been known and not acted upon for a period of time. We've looked as well at labour jurisprudence and precedents. It occurs when the combination of those factors make it so that you can no longer deliver on your mandate.

    That's why I was talking about small organizations. If, at the end of the day, you actually invest in the wrong places--

    That seems awfully broad and open to some pretty subjective interpretation.

    This is the jurisprudence. There is right in the act a specific definition that I omitted to refer to. Usually, it's in my opening speech. In fact, wrongdoing is:

    I don't know if that helps the member, but there is a definition in the act. What I was giving was the interpretation under common law.

    Madame Bourgeois.

    Thank you, Mr. Chair.

    Good morning, Ms. Ouimet; good morning, gentlemen.

    I wanted to tell you at the outset that I have read your document. I feel that you have done good work since you have been in your position. I do not know if you remember, but, on the day I met you here, I was skeptical. I told you not to forget the disclosers of wrongdoing who suffer psychological harassment, nor to forget the next stage, by which I meant the reprisals. What happens after the 60 days? You are showing a lot of sensitivity in this, and I feel that you have put appropriate measures in place. Earlier, I heard you say that people coming to you were emotional. You are sensitive to that, and I appreciate it a great deal. My congratulations.

    So many questions occur to me and you are going to have to answer them in a very short amount of time, I think. On page 12, you say that agencies seem more vulnerable to staffing irregularities. Ms. Barrados has appeared before this committee. Do you work with her?

    Yes. In small agencies, there are often expectations because everyone knows everyone else. In some cases, the expectations are about a promotion that is often impossible because of the structure. We also have to be flexible with the good practices. I have sent Ms. Barrados what we generally call our good practice decks. This allows small agencies, for example, to share the challenges they face. If someone, say, is in the process of re-examining a conversion, it can mean that someone else does not have to start the process all over again. We are not reinventing the wheel, but sometimes people can talk about good practices without putting them into operation. Yes, we want to work closely with other agents of Parliament.

    In your report, you also say the following:

    My feeling is that, in subsidiary crown corporations, the employees' code of ethics is not always used. There is one, but it is not used. What can we do to have the act applied to those situations as quickly as possible?

    We are in contact with people in Treasury Board. We have some practical recommendations for them.

    You talk about reprisals in your report and that fascinated me. You dealt with a reprisal complaint from 2002. Having tried to help people who have been harassed or who have suffered reprisals, I know that the difficulty is that departments recognize that harassment has occurred in their organization, but they take no action. They let things drag on, and the employee has no way of knowing his rights with regard to his pension, for example, or where he is going to work in the next six months. I think of employees who are constantly moved from one situation to another. I know that there are cases like that.

    I know of a case where the harassment was acknowledged by the employer, the Correctional Service of Canada, but it had been dragging from one deputy minister to another for seven years. Of course, the people who had been harassed were ill—you know because you work with them.

    Would it be possible for your office to handle cases like that? When a department lets things drag on, does not provide answers, does not conduct due diligence to deal with cases, those are basically reprisals too. The system is allowed to rot, and the rot affects the employee, who leaves the workplace in disgust.

    Can your office deal with cases like that?

    Mr. Chair, the act is very clear on that. For us to have jurisdiction over cases of reprisal, there absolutely has to be what is called a nexus with the disclosure. There must be a direct link with a disclosure previously made in the public interest about wrongdoing within the meaning of the act. If, after a disclosure of that kind, subsequent actions become reprisals as defined in the act, we can intervene.

    When the interest is strictly private—not that that diminishes the significance of the complaint—our duty is to refer the matter to the organization with the jurisdiction. That does not mean that we cannot make comments, but, technically, if there is no... But it is also a question of the detail that we provide in cases that have been brought to us and that we have had to refer. That is a task with which Parliament did not entrust us.

    Thank you, Mr. Chair.

    Thank you.

    Mr. Warkentin, for five minutes.

    Thank you, Mr. Chair.

    Thank you again for coming before our committee. We appreciate your testimony this morning.

    I just wanted to touch base with you with regard to your mandate. You spoke with Ms. Hall Findlay some time ago with regard to what is classified as a wrongdoing. I read in the brochure as well as in the other documents that this would be defined as a number of things, but including “misuse of public funds or public assets”, and second of all, “a gross mismanagement in the public sector”.

    There have been some complaints brought forward to our committee by other officers of Parliament, and now, because of my own interest, I've actually started to receive letters from the public service with concerns regarding classification creep and this whole issue of reclassification not necessarily being reflective of the work that is being required. This is a misuse of public assets and funds for sure, but I have asked whether this goes further, whether in fact there's somebody who's knowingly directing somebody to do something that is wrong.

    The first question would be, do you consult other officers of Parliament in terms of having certain issues referred to your office? Does that happen?

    In fact, Mr. Chair, we consider this to be a very important element because we want to avoid, first of all, duplication. We want to make sure that our role is complementary and, if there is a process ongoing, that we're not seen as interjecting inappropriately.

    With respect to what constitutes a wrongdoing, again it's still early days, and we're also guided by some eminent jurists as well as by some retired Supreme Court judges. You have to look at it in a very practical way. We're not, as well, management consultants. We have to be very careful. This is not our role.

    We have to situate it within the act. Does it fit the definition of the act? Again, it doesn't mean that from the prevention angle...and this is the liberty that we took, again with the blessing of Parliament, some of your colleagues, and jurists, to indicate areas of vulnerability.

    So we want to look at it next year more closely. But do we talk to other officers, other heads of tribunals, to look at their approaches? Absolutely. This, we think, is our obligation.

    In the letters I'm receiving now, because of my comments in the Ottawa Citizen, from the public servants, they do actually go to great lengths to explain concerns that they're having within the public service. Do you believe this might be an issue, that I should be directing these folks to your office? Do you think you are in a position to address...because I think it is not necessarily about whether the issue is legal or illegal. This is probably a simple question of management or mismanagement, or being directed to engage in a practice that would lead to possibly mismanagement within an agency or department. It's an issue that doesn't necessarily fall into the parameters of being an illegal act, but some of the public servants believe it's an unethical act.

    Mr. Chair, without knowing the particulars of the case, if any issue is brought to the attention of my legal services, we'd be happy to look at it. I think I'd be remiss if I were to comment at this point in time.

    Absolutely. I appreciate that very much.

    We, as a committee, have taken some time and are hoping that we can take some additional time in terms of just trying to find out exactly how we might be able to address this concern a little bit more.

    You do say, though, that you do have regular contact with other officers of Parliament.

    At all levels.

    At all levels. We appreciate that, and through that coordination, I'm certain that the public service and Canadians in general will be well served by that relationship. So thank you.

    Thank you.

    I have indications of three other members who want a second round. I'm just going to leave a question. The answer might not be immediately forthcoming.

    Monsieur Roy, in his earlier round, raised the issue of journalists with sources. I'm going to ask you a hypothetical question, and maybe your office colleagues can work up the answer if it isn't immediately available. What if a journalist does come with information? Because a journalist is a member of the public—

    In fact—

    Let me finish the question. The journalist comes to the office and says, “I have information about A, B, C”, with relative particularity. But it's all hearsay, that information having been derived from an actual public servant who knows that much or more. So my question is, does the journalist obtain the protections of the statute through your office by the very nature of the fact that he or she has delivered the information? Is there any immunity attached to that? And is there any distinction between that information because it is totally hearsay and second-hand, and so if you want to—

    No. There's a specific provision in the act with respect to reporters. First of all, yes, I see that it does not cover the CBC....

    We can wait for the answer. I don't mind at all. I just wanted to give you some advance notice of it.

    First of all, any member of the public can come to us regardless of their profession, regardless of their background. So that's the ground rule.

    There's a specific provision. Joe, do you want to read it? I thought you might find it interesting.

    Mr. Chair, section 18 of the Public Servants Disclosure Protection Act provides that, “Nothing in this Act relating to the making of disclosures is to be construed as applying to the dissemination of news and information by a person employed by the Canadian Broadcasting Corporation for that purpose.” There is a CBC-specific provision in our act.

    There is also the distinction between a protected disclosure and a disclosure that is disclosed in the media. For instance, in an emergency situation, someone might decide to disclose in the media. I know that your question relates to an actual reporter specifically, without, of course, going forward.

     There are specific provisions in the act, but if you want us to explore further the various scenarios, we do intend to reach out to media representatives. First of all, how do they view our function? Is this also part of what the role is from a disclosure perspective?

    Perhaps, Mr. Chair, as this is a very valid question with all sorts of facets, we'd be happy to look at more areas to answer more fully.

    Maybe it does need a bit of a work-up.

     I'm interested in this field of.... I think there's a private member's bill that would protect journalistic sources. I'm wondering if, inadvertently or directly under this act, a journalist could obtain some protection for his or her sources simply by coming to your office and obtaining indirectly what apparently may not be out there in our general law, in which there's no specific privilege for journalistic sources. My question is a little off the wall, but it may come up.

     I'll leave it there. I'll turn to Ms. Foote for five minutes.

    Thank you, Mr. Chair.

    I won't need the entire five minutes, but I'm sure my colleague will share the time.

    You talked about the number of requests and how, for some of those, it was determined that they could be better dealt with by other agencies or organizations, such as the Auditor General's office, for example. Is the same protection accorded to the individual who's bringing the complaint forward if the complaint is dealt with by the Auditor General's office and not yours?

    Of course, but if it leaves our jurisdiction, then different rules will apply. From that perspective, it's a referral, but the identity of the individual is not going to be shared with the Auditor General. It's the issue or problem that needs to be looked at. So from that perspective, whether the person wants to come forward is completely, entirely up to them. Similarly, if a reporter's name becomes public, of course, then the anonymity or confidentiality has been sacrificed elsewhere. When we refer the matter to another organization, it falls under a different set of legislation.

    Would that organization be inclined to, or want to, or have to have the discussion directly with the individual who brought the complaint forward?

    It may not be necessary. Again, ultimately our obligation remains. Whether the person is still within our office, whether we have an active file, our obligation to protect the identity of this individual remains forever, to the extent possible, of course.

    You do not pass the identity of the individual on to the other organization. You just pass the file in terms of the issue.

    That's correct.

    If a complaint is brought against another individual, that individual has the right to know where the complaint is coming from and the source of the complaint. I guess it goes to the rights of the individual. How do you draw the line there?

    Again, there are specific provisions in the act that talk about an opportunity to respond to the allegations. My deputy commissioner will read it out loud.

    It doesn't deal with being able to respond to who brought the accusation or who made the complaint?

    No. In the laws of fairness or natural justice at common law, there are those few occasions where, say in cross-examination, you're allowed to cross-examine the person who made the complaint. Ordinarily, if the facts can be found in ways other than through this direct accuser approach, then the principles of natural justice don't really require that. You could go after the person who made the accusation.

    I'll make two other observations.

    Section 22 says that we must conduct our inquiries or our investigative process in accordance with natural justice and procedural fairness. In addition, anybody coming forward has an obligation not to make false statements and not to obstruct the process. There are some charges that could be laid if somebody misled the commissioner or their representative. There are a number of provisions throughout the act, because this has been a bit of a collage of a number of bills. That's why you really have to read the 54 sections and look at it.

    But in the end, it's natural justice, opportunity to be heard, quest for the truth, and ultimately we hope to bring some practical solutions quickly and with fairness.

    I do appreciate that.

    I can just imagine that if you're being targeted by an individual for whatever reason and you end up going through this terrible ordeal or being drawn into a situation where you know you're completely innocent, you'd like to think there will be justice at the end of it all.

    That's a very good comment.

    Merci.

    Monsieur Roy.

    Thank you, Mr. Chair.

    I have two more questions, Ms. Ouimet. I really like the aspect of prevention. But you head a small organization of 22 people. What is your approach to prevention, and what is the response from departments and agencies?

    It is no easy task. When you want to make changes in organizations of that size, it can take several years before those kinds of changes, changes in culture, take hold. That is my first question because, with 22 people, I doubt that you can establish a prevention program and have regular meetings with all the responsible people in all the departments and federal agencies.

    Also, knowing that the act was passed some time ago, what powers do you have when you finish dealing with a complaint and you consider that the act has been contravened? How far can you go? Do you just make a recommendation to the Solicitor General, or do you have other means at your disposal?

    Thank you for the question.

    You are right, we cannot guarantee the integrity of the entire public service with 22 people. That is why Parliament in its wisdom gave the minister, in this case the President of the Treasury Board through his officials, a role in education and prevention.

    We feel that we have to support him in that task, but each department with a senior officer should take seriously...I know that they do because they have a lot invested in both the disclosure system and in prevention. For our part, we are going to formally remind the minister of his obligation. I know that the organization will take that seriously.

    That is why we also mentioned shared responsibilities as one of our themes. We are going to continue in that direction.

    As for the office's power, if there is wrongdoing, yes, we have the power to make recommendations, but we can also follow up on it a year later. I feel that that is very useful. We can go to the organization again to see what it has done. The discloser will also tell us; that is a significant indicator.

    Once again, we have to be realistic. It is not going to happen overnight. But it is being taken seriously.

    I must also tell you that, up to now, we have always received full and complete cooperation when we have looked into an organization. People take it seriously because no senior officer wants even the perception of wrongdoing in his organization, let alone actual wrongdoing.

    Could you be more specific about prevention? You tell me that organizations look after prevention, but my question is, how do they do that?

    As a practical approach, for small agencies and small organizations, it is my intention to visit colleagues formally to make sure that concrete solutions are found, such as the ones we have listed.

    As for crown corporations, I repeat that we have already begun a dialogue with Treasury Board to bring some subsidiary crown corporations under the act. That is a part of prevention too.

    We want to work with the Canada School of Public Service to ensure that, in basic courses...in the private sector, we have seen that reminders are necessary. It is not enough to take a course, complete it and then do nothing for 25 or 30 years. In some areas of the private sector, the practice is to sign a form as a reminder every year. The CEO of Motorola asks to be told personally if a single person, out of the hundreds that work there, does not sign it.

    A number of techniques can be used. I feel that the annual report of the old Canada Public Service Agency contained good practices, and we are going to encourage the new agency to continue them.

    Thank you.

    We'll go to Ms. Hall Findlay for one small question.

    I'm sorry, you have five minutes, of course. The indication was you did have a question.

    My question actually is very small. Thank you, Mr. Chair.

    I know if I had been able to read all of the background beforehand...my apologies, but does the mandate cover port authorities?

    Port authorities, yes. Under crown corporations, yes.

    It does, okay. Thank you.

    That was very short, was it? For the record, that was—

    Yes, that's great.

    May I ask one on behalf of my...?

    Yes.

    I had five minutes.

    An hon. member: Another short one.

    Ms. Martha Hall Findlay: But I think this will be edifying for all of our colleagues.

    I was curious about the specific reference to the CBC, in the grand scheme of all of the media outlets in this country. Is there an explanation?

    The CBC, first of all, is a crown corporation. It's covered under it, but it was a provision that my general counsel.... This was part of the bill that was discussed previously. Essentially, it says: “Nothing in this Act relating to the making of disclosures is to be construed as applying to the dissemination of news and information by a person employed by the Canadian Broadcasting Corporation for that purpose”.

    Okay, just because it's a crown corporation.

    Correct.

    Okay, thank you.

    An hon. member: That was good to know.

    Ms. Martha Hall Findlay: Thank you.

     Okay.

    Colleagues, we've had a good look at this. We have some committee business we'd like to transact immediately following this, so I will thank the commissioner, the deputy commissioner, and general counsel. Thank you all for coming. It has been a very informative meeting. Good luck in your work. You may withdraw at this time.

    Colleagues, I want to go through one thing. As you will be aware, the subcommittee on agenda and procedure met this morning. We reviewed a future agenda. The subcommittee members came to a conclusion on setting down an agenda for meetings that push on into the month of June. I'm going to outline it for you and read the subcommittee's report:

That item has already been partly indicated on the calendar, which you have. We've added the supplementary estimates.

We are assembling a report on that. Members will all be familiar with this activity.

    Those were the conclusions.

    We had a discussion at the subcommittee on how difficult it was for the chair to fulfill his responsibilities at the subcommittee.

    That is the report of the subcommittee. I'd like someone to move that. Do we have a mover?

    So moved.

    Thank you, Mr. Warkentin.

    Now, I wanted to indicate that the appearance of the Public Service Commission is no longer just a concept meeting. We've been advised that Madame Barrados and the commission will be releasing three reports, certainly two, imminently. They're imminent in the sense of...tomorrow.

    Two audits tomorrow, and a report replying to Madame Bourgeois.

    So within the next day or two, there will be reports on the subject matters that we have been exposed to earlier. One of them is the student work experience program. Members will be familiar with that issue. Secondly, there is a report on unauthorized access to the public service.

    These reports will be released within the next 24 hours, with a third one following shortly thereafter. The meeting of June 9 will be on at least one of those subjects. I'll just leave it at that. I'll leave the Public Service Commission the job of making public their reports. Sometimes their plans to release a report could be delayed, and I didn't want to be the person announcing them.

    There it is. It's been moved. Is there any more debate? Can we adopt?

    (Motion agreed to)

    The Chair: Thank you.

    Mr. Warkentin, do you want to say something?

    Mr. Chairman, I wanted to ask a question, having not been at this type of committee meeting, with regard to the federal procurement report. There may be some hearings, and we'll see an initial concept of what the report is going to look like in that June 2 meeting. My suspicion is that there may be a need for a follow-up meeting to finalize everything.

    I would be curious to know if we could confirm a date now, simply because I do not want to go into the summer having not completed that particular report. Perhaps we could at least pencil in a meeting following the 9th, if that would work, or if there's a time in which we could fit it into the remainder of a meeting where we don't feel we'll take the entire meeting with what's planned.

    That's an excellent suggestion. We have meeting time available on the 11th, 16th, 18th, and maybe on the 23rd. So if we haven't adopted this report sooner, then let us target Thursday, June 11, as the date when we'll adopt the finalized report.

    Is that viable, Ms. Scratch, from your point of view? It is.

    Mr. Chris Warkentin: Thank you.

    The Chair: That's great. We're all agreed. Are we all agreed to adjourn?

    I'm sorry, is there something for the record here?

    Yes, just that we're adjourning.

    We are smooth, indeed. Thank you.

    The meeting is adjourned.