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37th PARLIAMENT, 3rd SESSION

Standing Committee on Public Accounts

EVIDENCE

CONTENTS

Tuesday, February 17, 2004

0900

The Chair (Mr. John Williams (St. Albert, CPC))

0905

Mr. Jeremy LeBlanc (Committee Clerk)

The Chair

Hon. Joe Jordan (Leeds—Grenville, Lib.)

The Chair

0910

Hon. Reg Alcock (President of the Treasury Board)

0915

0920

The Chair

Hon. Reg Alcock

The Chair

Hon. Reg Alcock

The Chair

Hon. Reg Alcock

The Chair

0925

Mr. Peter Goldring (Edmonton Centre-East, CPC)

Hon. Reg Alcock

The Chair

Ms. Beth Phinney (Hamilton Mountain, Lib.)

Hon. Reg Alcock

0930

Ms. Beth Phinney

Hon. Reg Alcock

The Chair

Ms. Beth Phinney

Hon. Reg Alcock

Ms. Beth Phinney

Hon. Reg Alcock

The Chair

0935

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

Hon. Reg Alcock

Mr. Paul Forseth

The Chair

Hon. Reg Alcock

The Chair

Ms. Judy Wasylycia-Leis (Winnipeg North Centre, NDP)

0940

The Chair

Ms. Judy Wasylycia-Leis

The Chair

Ms. Judy Wasylycia-Leis

The Chair

Hon. Reg Alcock

The Chair

Hon. Reg Alcock

Ms. Judy Wasylycia-Leis

The Chair

Ms. Judy Wasylycia-Leis

The Chair

Ms. Judy Wasylycia-Leis

The Chair

Ms. Judy Wasylycia-Leis

The Chair

Mr. Dennis Mills (Toronto—Danforth, Lib.)

0945

The Chair

Hon. Reg Alcock

The Chair

Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.)

Hon. Reg Alcock

0950

The Chair

Mrs. Marlene Jennings

Mr. Dennis Mills

The Chair

Mrs. Marlene Jennings

0955

Hon. Reg Alcock

The Chair

Mr. Odina Desrochers (Lotbinière—L'Érable, BQ)

The Chair

Hon. Reg Alcock

The Chair

Hon. Reg Alcock

The Chair

Ms. Judy Wasylycia-Leis

1000

The Chair

Ms. Judy Wasylycia-Leis

The Chair

Hon. Joe Jordan

The Chair

Hon. Joe Jordan

The Chair

Hon. Joe Jordan

The Chair

Mr. Paul Forseth

The Chair

Ms. Beth Phinney

The Chair

Hon. Walt Lastewka (St. Catharines, Lib.)

The Chair

Mr. Odina Desrochers

The Chair

1005

The Chair

Ms. Beth Phinney

The Chair

Ms. Beth Phinney

The Chair

Ms. Beth Phinney

The Chair

Mr. Alan Tonks (York South—Weston, Lib.)

The Chair

Mr. Rob Walsh (Law Clerk and Parliamentary Counsel, House of Commons)

1010

1015

1020

1025

The Chair

Mr. Rob Walsh

1030

The Chair

Mr. Paul Forseth

The Chair

Mr. Rob Walsh

The Chair

Mr. Odina Desrochers

1035

Mr. Rob Walsh

Mr. Odina Desrochers

Mr. Rob Walsh

Mr. Odina Desrochers

Mr. Rob Walsh

Mr. Odina Desrochers

Mr. Rob Walsh

Le président

Mrs. Marlene Jennings

1040

The Chair

Mr. Rob Walsh

Mrs. Marlene Jennings

Mr. Rob Walsh

Mrs. Marlene Jennings

The Chair

Ms. Judy Wasylycia-Leis

The Chair

Mr. Rob Walsh

1045

The Chair

Mr. Philip Mayfield (Cariboo—Chilcotin, CPC)

Mr. Rob Walsh

1050

The Chair

Ms. Beth Phinney

Mr. Rob Walsh

Ms. Beth Phinney

Mr. Rob Walsh

1055

The Chair

Mr. Alan Tonks

Mr. Rob Walsh

The Chair

Mr. Rob Walsh

The Chair

Mr. Rob Walsh

1100

The Chair

Hon. Joe Jordan

The Chair

Hon. Joe Jordan

The Chair

Ms. Beth Phinney

The Chair

Hon. Walt Lastewka

The Chair

1105

Mr. Odina Desrochers

The Chair

CANADA

Standing Committee on Public Accounts

NUMBER 003

3rd SESSION

37th PARLIAMENT

EVIDENCE

Tuesday, February 17, 2004

[Recorded by Electronic Apparatus]

¿ (0900)

[English]

The Chair (Mr. John Williams (St. Albert, CPC)): Good morning, everybody.

Do we have quorum, Mr. Clerk?

¿ (0905)

Mr. Jeremy LeBlanc (Committee Clerk): Yes, we do.

The Chair: I'll ask that the cameras leave.

Joe...after we start.

Hon. Joe Jordan (Leeds—Grenville, Lib.): I should do it right now.

When the witness lists were sent out on Friday, my fax didn't include them. I think it was inadvertent. But I phoned the number and wasn't able to get the list.

I'm just wondering if we can tighten it up a bit so I don't have to answer media questions about lists that I haven't seen.

The Chair: Yes, I will mention that.

Good morning, everybody.

The orders of the day are pursuant to Standing Order 108(3)(g), chapter 3, the Sponsorship Program, chapter 4, Advertising Activities, and chapter 5, Management of Public Opinion Research, of the November 2003 report of the Auditor General of Canada referred to the committee on February 10, 2004.

We have as a witness this morning, from the House of Commons, the President of the Treasury Board, the Honourable Reg Alcock. While he wasn't on our list of witnesses to be called, he asked to appear before this committee, and as he is a minister of the Crown, of course, we afford that opportunity.

Following that, I think we will deal with the motion by Ms. Wasylycia-Leis, we'll deal with the report of the steering committee, and then we will hear from Mr. Walsh, the Law Clerk and Parliamentary Counsel. That testimony could be in public, and we may actually move in camera as we talk to him on certain issues regarding our rights and privileges as members.

The other issue I want to mention is the fact that it was intended that some documentation be available this morning--and Mr. Jordan was just raising this point with me. The documentation that we had expected this morning is not available because the Auditor General was unavailable yesterday to sign off on the documentation.

In order to try to regularize the release of documentation, because all committee members are entitled to this information before anybody else, I'm asking that the documentation be brought to a committee and released and tabled at committee so that it then becomes a public document, so that we don't have this information going out on a Friday or Monday afternoon in a way that some people get it and some people don't. If it's tabled at committee, at that point in time it becomes a public document.

So I expect there's a good chance that the documentation that was not available this morning will be available on Thursday morning. Okay?

Mr. Alcock, without further ado, the floor is yours.

¿ (0910)

Hon. Reg Alcock (President of the Treasury Board): Thank you, Mr. Chairman.

I'd like to thank the members of the committee for their indulgence in allowing me to appear this morning.

I want to provide you with some information and share with you a problem I have that I think you are eminently well qualified to solve. The Prime Minister has instructed me to look at a means whereby we can offer to public servants the same protection they would have under a proper whistle-blowing regime, in the absence of that regime. His intention and desire is that any public servant who has information that he or she feels would be relevant to the work of this committee should be free to come forward and share that information with you.

I want to put this in a context, and I have to ask the committee for some response to or some consideration of--not in this meeting, but at your earliest convenience, I would ask--some of the concerns I'm going to raise.

As you know, I have been a strong advocate for what is called “democratic reform”, but really for me it is the reassertion of the rights and privileges and traditional roles of the House of Commons. I have argued for a long time that it has been as the House has diminished in its role as part of the oversight that we've gotten into some of these problems, and I am convinced that House committees can set aside the partisan kind of sniping that goes on in question period and focus on real issues.

I saw that firsthand. Mr. Williams. I've been impressed with the way you conduct this committee and the even-handed nature of the work you do here.

On the question of whistle-blowing, I just want to give you a little background, because I think it highlights some of the issues we have to grapple with. When we passed Bill C-25, which was the most recent legislation, there were strong calls from Mr. Martin of the NDP and from Mr. Lanctôt, then of the Bloc, that we include the strengthened whistle-blower regime within that legislation. We rejected that. We rejected it because we felt the administrative regime that was in place was sufficient and we were assured that would do the job.

Our very next experience, of course, was the investigation of the Office of the Privacy Commissioner. As we got into that and went through that experience, we came out the other end of that saying the existing whistle-blower regime does not work; it is not effective. We had testimony from staff from whom we had taken information in confidence.

To that end, we set up a subcommittee chaired by Mr. Martin from the New Democratic Party and Madame Folco from the government side, who did some preliminary work to try to take what we learned from our experience in trying to have a conversation with public servants on these matters, and give some advice to the department about how the regime needed to change. That was then handed off to the department, which went off and brought in some experts to do some research. That research has come back, and it is our intention to bring that forward as first-reading legislation--legislation, because I personally believe the House should craft that legislation. We can provide expert opinion.

I'm sort of on both sides of the table now. Having thrown the ball, I've caught it, and now I'm going to throw it back, in that sense.

In the meantime, I have been urging that we come forward with the legislation with all possible haste, but I do think law crafted in haste can be bad law. I believe it will go to the Standing Committee on Government Operations and Estimates, the committee that was seized of it, and I trust that they will do an adequate job of coming forward with a legislative regime that will address these issues.

The report that Mr. Martin and Madame Folco put down--it's the 13th report, and there are copies on the web, if you'd like to look at it--lays out some of the problems we encountered. One of the problems is that when someone comes forward with a complaint, you don't know whether it's substantive. Are they just bringing forward rumours they've collected? Are they there because they've been passed over for a promotion and are angry? There's a whole bunch of adjudication that needs to take place.

The report talks about the need for a process. There's a lot of debate about where that process should be, because regarding the current administrative process, we heard in testimony from public servants that they didn't trust it.

Actually, there was an additional report that was done as an aftermath to this that went into this issue in some detail. That report is also available and will share with you the feelings of public servants when they talked about that.

¿ (0915)

Absent a trusted process, in the Standing Committee on Government Operations and Estimates we turned to Mr. Walsh, who is here in the room as your legislative counsel, and asked him to serve that intermediary role. He met with a number of the witnesses and made an assessment for us, which he conveyed to us in confidence, about the appropriateness of the testimony. On that basis we selected certain witnesses to hear.

We then had the secondary problem that bringing them before the committee in public would expose them to some risk, absent any regime to protect them. The second part of whistle-blower legislation is that when somebody comes forward with a concern, they do not suffer either an immediate penalty or a penalty once the heat of the issue dies down. You want to have some means of redress and protection for that, and that needs to be captured in legislation. That becomes an issue in this process.

The third issue is that we want to pursue criminal action against people who have committed criminal acts. We want to pursue civil action against people who have been in receipt of funds they shouldn't have been in receipt of. While there may be some question about the criminal nature of it, on the civil side we think we can get them. We want to take that action.

This committee, like all House committees, needs to be cautious about not tainting the criminal inquiry. I know, Mr. Williams, you're seized with that. I've heard you speak about that, and I know members will take that seriously. Mr. Walsh is exceptionally good at trying to chart that course. I would urge you, in thinking through the process, to take that into consideration.

There is the question of parliamentary privilege. People who appear at this table are enveloped in parliamentary privilege, and it is my understanding that things they say here cannot be used against them outside. I would explore that in more detail with Mr. Walsh. At the end of the day, you need to craft a process that addresses those issues so the public servants who come forward are satisfied that they will receive protection.

From my side of the table, I will do a couple of things in response to the information I receive from you. I will undertake to ensure that the solutions you arrive at, the protections you offer, are made available, and that every public servant is made known of them. We'll work through the normal communication networks. I am meeting with their unions. You may want to meet with their unions to talk about this and get their advice on how that protection will be carried forward.

I've also instructed our lawyers to look at this issue in the following context. Sometime—I don't know when, that will be for the other committee to determine—we'll have a piece of legislation on this that will contain these go-forward protections. I'm not enough of a lawyer to understand how you provide retroactive protection for people, but I have served notice that anyone who testifies before this committee, having gone through the appropriate process, will receive the full force and effect of whatever protections are contained in that new legislation. I will undertake, using the authorities of my office, to ensure that no public servant suffers any penalty or loss of position or advancement as a result of coming forward to testify here. I will make that guarantee to you and the members of the committee.

I want to be careful of one other thing. The word “amnesty” was used in some of the discussions about this. I don't wish to offer amnesty to anyone who has committed a criminal act. Not only do I not wish to do that, I don't think it's appropriate for me to even be involved in that world, frankly. If the criminal authorities--the attorney general who's charged with this, or the police who are charged with this--wish to offer someone some kind of consideration in exchange for testimony, that's a decision for them to make. The protection I am offering at this table is for any public servant who has information to contribute to this file that will help your deliberations and us. When they go to the public inquiry they'll have the full protection of the public inquiry. That regime is well known. It's less clear what occurs here, and I think it's an opportunity for this committee to set some new ground.

We learned a lot from what we did with the Office of the Privacy Commissioner. We discovered some good things; on the process side we discovered some problems.

¿ (0920)

I would also suggest.... I know Mr. Forseth sits on this committee. Mr. Forseth, how are you?

Mr. Forseth was heavily involved in that, as were the other members from the Standing Committee on Government Operations and Estimates, Monsieur Lanctôt and Mr. Martin. I would encourage you to take advantage of the experience of those members from all parties who engaged in this.

I want to tell you, just maybe in closing—and I'm speaking from behind the veil of the in camera sessions, in a sense—that there were some absolutely wonderful moments in what was a very difficult file, in looking at the Office of the Privacy Commissioner. As the chairman, I sat at the table and watched members from both sides collaborating, taking notes, looking at some of the issues, and offering each other advice. A member from one party would ask a question, and a member from another party would follow up with a question that was right on target, and the two of them would go off and collaborate on what they found. It was a collaboration that involved the full force and effect of all parties in this House. I think it's marvellous. I think it's what the democratic deficit is all about.

I think if we can demonstrate that we can do that, we enhance the reputation of this House and this committee enormously, and I will be there to support you every step of the way.

The Chair: Thank you very much, Mr. Alcock.

It wasn't my intention to go into a long debate, but I think there are some issues that have been raised, and I'm basically going to ask the first one myself.

You have stated that no one in the public service will suffer or cause an administrative penalty or sanction...leaving the criminal part of it totally aside. I agree with you that criminal part is not within our jurisdiction, but there will be no administrative sanction.

We are potentially talking about very senior public servants, as well as less senior public servants. The senior public servants had a fiduciary responsibility to ensure that their departments were managed properly. My personal opinion is that I'm not sure that the general public would want those people at the senior level, who should have known and didn't know, to be given this amnesty.

How do you feel about that?

Hon. Reg Alcock: Oh, absolutely.

In fact, let's be clear: I am not offering amnesty.

The Chair: Well, a waiver of administrative sanction within the....

Hon. Reg Alcock: Yes, I understand.

I think that anyone who has played a role in this and has not acted in accordance with their responsibilities, or acted in a way that you would expect someone in a position of public trust to act, should be subject to the sanctions that are appropriate for that behaviour.

My comment about saving people from other administrative activity is really contained in or comes out of the work that was done on how you craft whistle-blowing legislation. The question that public servants raised, which I think is quite legitimate, is that they say “Okay, fine, I come forward, and I'm in this position, and I offer this testimony. And that's great; everybody's happy with that. Two years later, I'm up for promotion, and I get denied the promotion, not on grounds of competence but because there are other people in the system who weren't very happy that I spoke like that.” That's a complicated issue, but you'll see it in the report that was done by Mr. Martin and Madame Folco on whistle-blowing legislation.

I'm saying that's the kind of administrative penalty I'm talking about. I'm not talking about penalties for inappropriate behaviour—I want to be really clear about that. I don't want people to escape their responsibilities.

The Chair: So inappropriate behaviour will be sanctioned; coming forward and speaking about it will not suffer a sanction.

Hon. Reg Alcock: Yes.

The Chair: Okay.

I have a list here: Mr. Goldring; Ms. Phinney; Mr. Forseth; Ms. Wasylycia-Leis; Mr. Mills; Madame Jennings. And by the way, Monsieur Desrochers and Mr. Lastewka were added to the list.

Why don't I cut it off there, with just one or two questions each. Hopefully we're not going to spend a long time on this, because we do have some other business.

Mr. Goldring.

¿ (0925)

Mr. Peter Goldring (Edmonton Centre-East, CPC): Thank you, Mr. Chairman.

And thank you for your presentation.

I just have a couple of questions. I'd like to know if this will be extended to other areas, not just to the public service, for example, but also into the RCMP and into the military, so that we can have some frankness coming from those areas too. I understand that this may be in a bill form at a later date, but will this be expanded to give some basic ground rules and ground understanding on it, so we all understand exactly what it is?

I'm sure that people from within these departments would certainly want see it in print and what the understanding is on it—if it is a preliminary.... But most importantly, understanding that the Privy Council is sworn to secrecy.... There are a number of members there. So will this be extended into those area too...the RCMP, the military?

Hon. Reg Alcock: Let me pick that apart. Will it be in a bill form? The long-term, permanent fix will be in a bill form, where we're proposing to put the bill before the House after first reading, so that the committee—it would be the Standing Committee on Government Operations—has full ability to craft the bill. They'll have expert testimony and the like, and the experience in other parts of the world.

So the fix will be in a bill. The problem for the current situation is, between today and the time that bill is proclaimed we have an administrative fix that was already enforced, but employees are telling us it's not a very appropriate fix. So what I'm trying to do is say I will put in place methods of tightening that enforcement up until such time as employees have the full protection of the bill on these issues.

You raised two other issues, and one of them is the military. I have to say, Mr. Goldring, you are more expert in some of these issues than I. I would have to seek outside opinion on that particular issue. I have not done it in the first order, because they are not directly involved in this, but there would be issues, I suspect, of military command and control. I confess I don't understand them, so I would have to seek opinion before I could give you an answer relative to the military. There may be certain things that for reasons of security and the like should not be subject to this; I don't know.

As far as the issue of secrecy you raised is concerned, I think it's an important one. In a world where you want more transparency, we have a problem. This came up in Bill C-25—Paul will remember it. What's the very first thing a new public servant does? It's to swear an oath of secrecy. How do you square that with a world where you want greater transparency and greater openness?

Those are issues I think we have to struggle with as we move into a world where we have more transparency. In the short term, however, what I'm really looking for is that this committee be assured—I'm assuming from Mr. Williams it wants to be assured—that if there are public servants out there who are possessed of information germane to this issue, they should feel they could come forward freely and without any fear of recrimination.

I am delivering that message here: I will do everything I can to ensure that it happens. You will have to craft the process; it's not for me to tell you how to do it. I will be having the same discussion with the unions about it. The bottom line, and my instruction from the Prime Minister, is that no public servant who has information to share on this issue should feel the threat of any recrimination in coming forward and sharing it.

The Chair: Thank you, Mr. Goldring. it is important that we understand that whoever says whatever they say in front of this committee, it's a parliamentary committee and subject to the rules of privilege of the House of Commons, which our law clerk will explain to us later on.

Ms. Phinney, please.

Ms. Beth Phinney (Hamilton Mountain, Lib.): I have questions, Mr. Chair, to our witness.

You mentioned that you think probably under the witness protection bill, when we do it, there's a problem of deciding whether the public servant or the witness is telling the truth or making up the story—that could be a possibility—and that you would have possibly our legal counsel meet with them, etc. Would we be doing that here? And if we have a witness coming in here, would we have our legal counsel meet with them ahead of time?

Hon. Reg Alcock: Perhaps I can describe the problem, Madam Phinney.

We all get brown envelopes, right? I don't get as many now, but we all get brown envelopes. When this issue first arose, it arose in part because of some investigative work Mr. Bryden had done, and as it began to unfold, all of a sudden we were again getting calls. We got copies of letters that had been altered.

But when you get a call from somebody, you don't know whether this person is legitimate or is a person who has been passed over for an appointment and just wants to get back at their supervisor. You have no way of knowing that.

What the whistle-blowing report and the expert opinion on whistle-blowing tell us is that you have to have some intermediary step, where people who are affected can go in absolute confidence and where their presentation can be adjudicated. If it's found to be meritorious, it moves forward.

What we chose to do, because there wasn't a step that was credible, was—you know we were dealing with this in a very short timeframe—to go to Mr. Walsh, who's independent; he's counsel for every member at this table, not just for the government. We asked him: “Here are the people. Can you contact them, can you talk to them, can you ascertain whether or not they have something to contribute to this?”

He did that. He came back to us and said he I thought we should call X, Y, and Z. Then we had the problem of how we guarantee they won't suffer recriminations for having come forward. Our solution was to go in camera. The problem we got into was that once we were in camera it was difficult to use information publicly that we had acquired in camera under a guarantee of anonymity.

We got into the difficult position that we were trying to explain to people why we had taken the action we did but couldn't actually reference the testimony of the people who had given it to us. It's a difficult problem, and I would encourage the committee to struggle with it so that when you're making commitments to people you're doing it in a framework that doesn't limit your ability to go further with it.

¿ (0930)

Ms. Beth Phinney: Is it your suggestion that we do that?

Hon. Reg Alcock: Well, I think there's a fair bit of experience now on this. Certainly there are members at this table, such as Mr. Forseth...and Mr. Lee is acknowledged as an expert in this.

Not only that, Paul, you co-chaired the contempt committee with Derek, did you not? Yes.

Mr. Forseth and Mr. Lee also went further and wrote a report on contempt. The issue was that if someone comes forward and lies, what do you do with it? So there's a fair bit of expertise on those issues around this table. And Mr. Martin was heavily involved.

I would encourage you to reach out to members so that you get an understanding of it. Then I would encourage you to decide what your process is. Let me know what that is, and I will make sure the public servants know that if they have something to say, they can come forward, on the first order, in confidence to someone, be it Mr. Walsh or someone else, and should that go forward with testimony, we will protect them. We will hold them free from potential harm later on in their careers, which is the second aspect of whistle-blowing legislation. The only thing I am not prepared to do is to make decisions to hold people blameless if they were participating in the criminal acts.

The Chair: Okay, I think we'll....

Ms. Phinney.

Ms. Beth Phinney: It wasn't my question that was long, it was his answer.

I would like to also ask how he feels we would decide, okay, this particular witness is protected until this point, when all of a sudden maybe it changes to look like this person is somehow responsible. Who makes the decision that this person is no longer responsible, and yet we then report the next person for further investigation? Where does that break come when we decide all of a sudden, okay, this one's okay, but this one's not okay? Are we sitting here in judgment of these people? Or who makes that decision?

Hon. Reg Alcock: What I was referencing, Madam Phinney, was that the first step you need is a place where all public servants can go if they have a concern. The decision, I suspect, that would be made there would be that these people are going to come forward, they have credible testimony to offer, and at that point the people who come out of that process would have protection at this table. That's the second thing they need, protection at this table to freely give their advice.

So we can give them protection in terms of the privileges of the House here and, I am saying, on the administrative side. Until such time as whistle-blowing legislation is proclaimed, I will give them protection and freedom from administrative sanctions, and we will encompass them in whatever protections come forward in the whistle-blowing legislation.

Ms. Beth Phinney: But whatever they say here, they're protected anyway.

Hon. Reg Alcock: I would encourage this committee to go in camera, to sit down with your lawyers and have a conversation about that very issue. And I would listen closely to Mr. Forseth and Mr. Lee, who have thought a lot about this.

The Chair: It is our intention to go in camera and talk with our lawyer, but I think I will instruct the Law Clerk to draw up a précis or a short statement of the issues: the protection that's been offered by the President of the Treasury Board, to be approved by the President of the Treasury Board before it's released, to cover off the rules of contempt, which have already been dealt with by Mr. Lee and Mr. Forseth, and the rules of privilege. If they do feel that they want to engage a lawyer, there's no point in spending all kinds of money to reinvent the wheel every time. That way they know exactly where they stand.

Our research officers have given me the Treasury Board Secretariat policies on the responsibility of the public service integrity officer. You may want to review that as well, Mr. Alcock.

You're next on the list, Mr. Forseth. Try to keep questions and answers fairly brief.

¿ (0935)

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, CPC): Thank you very much.

I'll take a bit of a different tack. The current situation we're in came from a colossal failure of comptrollership. Treasury Board is essentially responsible to be the chief comptroller for the government, and yet in the past it has delegated comptrollership functions to the various ministries. I want to know what you've specifically done since you've become minister to change that whole relationship, to ensure that, first of all, Treasury Board has control on the comptrollership throughout the ministries, and that indeed comptrollership is really happening to meet standards at the ministry level.

There has to be a whole series of changes, which I hope you can reassure us on.

Hon. Reg Alcock: Thank you.

Actually, Mr. Chairman, just before I answer that question, I note that Madam Miriam Burke, who was the very capable clerk of the Standing Committee on Government Operations during that time, would also be a resource to you. She, as clerks are wont to do, was an absolute stickler about how the rules get followed and has gained a fair bit of experience. I would encourage you to draw upon it.

Mr. Forseth, you raise what I think is a fundamentally important question. It's the evolution of public administration, public management. I've argued that one of the failures around here--and why I got interested in the democratic deficit--was that one of the functions is the oversight role of the House of Commons, and as this role has been diminished, we've lost some of that. The other one is how public management needs to evolve in light of the new information technologies and all of that.

The mistake that was made is there was an observance that in the private sector in large organizations, for reasons of good service, they delegated service responsibility to the level nearest the people receiving the service. That's a good policy. The trouble was what they didn't do--build the information systems that built in the controls that allowed you to catch things when they went wrong. What they did is they destroyed a two-headed operation--the comptrollership you're referring to. They took that out and didn't replace it with anything. So if someone in that chain went wrong, you had no secondary way of catching it. That's the problem.

I said yesterday it was done in June 1993 by the Campbell administration. I don't hold the Campbell administration responsible for this. I think we would have done the same thing, because that was the state-of-the-art thinking about what you do in terms of management. It was driven by a desire to get good services out to people. But it was a bad decision. You've heard me argue that over and over again. We never built the information structure to be able to keep track of what was going on.

The instructions I was given on December 12 when I was sworn in.... All ministers were told that this government was going to build on a foundation of transparency, accountability, and financial responsibility. The first line in my mandate is to restore a system of modern comptrollership. I'm going to be coming to the Standing Committee on Government Operations and talking about this. I'm going to ask members like you, Mr. Forseth, and others to get involved with it.

I don't think there are big ideological differences about good government. We all want good government. I want your opinion as well as opinions on this side on this issue. We're going to rebuild a public service that delivers excellence.

Mr. Paul Forseth: But what have you done?

The Chair: Our next witness, Mr. Walsh, must leave at 11 o'clock, and the committee has to wrap up by 11 o'clock. I thought--

Hon. Reg Alcock: I have to go speak at 10 o'clock.

The Chair: The President of Treasury Board is going to speak at 10 o'clock. The concept was that he was going to make a statement and we were going to ask questions on that statement as it pertains to the issue we have been seized with. This is not a general debate on whistle-blowing legislation and the policies of the Treasury Board.

So if you could, keep your remarks to the statement that the president has made this morning as it pertains to the issue before us. Otherwise I'll rule the question out of order.

Ms. Wasylycia-Leis.

Ms. Judy Wasylycia-Leis (Winnipeg North Centre, NDP): Thank you, Mr. Chairperson.

My first comment or question pertains to whether or not this is too little too late. I'm wondering if public servants today aren't feeling so vulnerable, given some of the statements made around the sponsorship scandal and other announcements pertaining to restraint in the public service, that there will be a reluctance to come forward no matter what whistle-blower protections are now put in place.

¿ (0940)

The Chair: Does this pertain to the debate we're having right now, Ms. Wasylycia-Leis?

Ms. Judy Wasylycia-Leis: Yes, precisely.

If the minister is giving us an indication that as of today public servants can come forward without recrimination, my comment is that perhaps the government has dampened the possibilities and in fact made it more difficult with some of the statements made with respect to the scandal. That's one issue.

I'll give all three questions.

The Chair: Yes, give all three questions.

Ms. Judy Wasylycia-Leis: You were sworn in on December 12. You would have at that point received access to the Auditor General's report. It's surprising that we haven't seen some indication of draft legislation by now, instead of some vague statement on February 10 that we'll see legislation by March 31.

My question is why, after eight years of members of Parliament raising this and bringing forward private members' proposals, aren't we at the point today where we can put in place a regime that is founded and based on legislation?

Third, you're saying today that there will be whistle-blower protections for people coming forward on this particular issue or on any issue raised in the Auditor General's report, any matter of concern. I raise that because as you know, Reg, we're talking about broader issues. We're talking about a culture of corruption, and concern about many issues on which public servants would like to give information but feel they would be penalized for it.

So I think you need to clarify. Are you saying just on one particular issue, and how are you defining it?

The Chair: Mr. Alcock, can you address questions one and three?

Hon. Reg Alcock: In terms of the first question, is this too little, too late, my simple answer to you would be that the fix to this is in the hands of this committee. If you think that what I'm proposing is inadequate, then propose something that you feel is more robust.

In the short term, we do not have a legislative regime in place. The need for a legislative regime is contained in a recommendation from a committee that I chaired. The subcommittee was co-chaired by one of your colleagues, who put a lot of time into this, and he did an excellent job.

The reason for the delay is quite simple. I've been quite adamant about the fact that the House needs--

The Chair: We want to move on. We want to focus on the statement you made today of extending.... We don't want to get into the long general statement of whether we should or shouldn't have--

Hon. Reg Alcock: I'm going to be in the House at 10 o'clock. I'm going to start a debate. I hope the member will engage in that debate.

Can I say one final thing, though? I do not believe there was a culture of corruption within our public service. I don't believe that. I think our public servants work exceptionally hard delivering good services. I think it's wrong to condemn the public service. Yes, there are individuals, as there are in every single profession, who go wrong, who commit criminal acts, and they should be rooted out and punished. To tar the entire public service this way is simply irresponsible.

Ms. Judy Wasylycia-Leis: I have a point of order. First of all, you will know, Mr. Chairperson, I did not say a “culture of corruption” in the public service. I asked specifically--

An hon. member: That's exactly what you said.

The Chair: No, no. Your point of order is addressed to the chair.

Ms. Judy Wasylycia-Leis: Mr. Chairperson, you will know that I did not say that. I've asked this very clearly, and it's important for our committee's deliberations. Is the minister saying today that he is giving protection as of today specifically to...?

The Chair: No, no. Your point of order was, did you use the words “culture of corruption”? You did use something along that line. The record will say exactly what you did say.

Mr. Alcock has responded. I consider that matter closed until the record has been reviewed.

Ms. Judy Wasylycia-Leis: What definition is being applied for whistle-blowers? Isn't that relevant?

The Chair: That is not part of a point of order, to have me force the minister to answer a question.

Ms. Judy Wasylycia-Leis: You're saying that you're going to the Treasury Board or you're going to the cabinet to get a directive. What is the directive?

The Chair: I think we'll cut that part of the debate off. We're getting into a little free-for-all here. Thank you very much.

Mr. Mills, do you have a brief question pertaining to the statement the minister made this morning?

Mr. Dennis Mills (Toronto—Danforth, Lib.): Absolutely. It's very specific to the minister's opening comments.

Minister, I respect your mission of getting all of the X-rays around this. I respect your desire. I'm sure we all want that desire, to make sure that public servants who have a special knowledge of things that are wrong in the process of government be brought to light.

I need to hear from you some of your reflections on how the accused is afforded due process, how the accused is treated in a fair way. You touched a little on the whole issue of substance versus rumours, substance versus a complaint that may not be founded. I really believe it's important that we hear your reflections on how the person accused is treated in a fair way.

¿ (0945)

The Chair: Mr. Alcock.

Hon. Reg Alcock: I think, Mr. Mills, that is an excellent point. I think the accused should be afforded full access to a counsel.

I want to be precise on this. It seems to me that there are three tests here. Is there criminal behaviour? I don't think this committee should deal with that. When we did the Office of the Privacy Commissioner we did not deal with that. We said we were concerned and the Auditor General should come in and if there's a finding there, that should go to the police. The police should make that.... Politicians should not be deciding, ever, the guilt or innocence of people on criminal matters. That's too Star Chamber-like. We should never engage in that behaviour.

If, in your review, in your testimony, in your work, you discover things that you think are questionable, I would take the advice of your counsel and I would refer those matters to the appropriate authorities.

On the civil side, it's the same thing. I don't know that politicians want to be in the position of deciding civil liabilities. We have a special counsel in place that will do that.

There is another issue, and that is, do we have confidence? There was a confidence issue in the Office of the Privacy Commissioner. It's a confidence issue in the question of people who serve with pleasure. It's a confidence issue in the work that's being done here. If this committee feels that they no longer have confidence in people to do the job, to carry out their responsibilities in an appropriate manner, then I think it should say so.

The Chair: Thank you very much, Mr. Mills.

Madam Jennings, please.

Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): Thank you, Mr. Chair.

Thank you for your comments, Minister.

I want to ask you a question specifically about the protection you are talking about providing to any civil servant who comes before this committee to provide testimony. You say they would not suffer or be threatened with any administrative sanctions for said testimony. In response to a question from the chair, you said high-ranking officials would not enjoy this protection. One would expect that if a high-level deputy minister, for example--I'm adding the title--associate deputy minister, or even the director of a branch, because of the authority they enjoyed, had knowledge of something happening that was a violation of the rules and regulations in a systemic fashion, or they themselves engaged in it, they would normally not enjoy this protection.

I have a real concern that you, as a minister and a representative of the government, have to really tighten up the definition of responsibility. That has to be clear right from the outset, because that will determine whether an individual will enjoy protection against administrative sanctions or not. The individual may not have committed a criminal act or pocketed any money, and therefore there would be no civil recourse against that person to try to get back money, but they may have knowingly and wilfully engaged in acts that they knew were in complete violation of rules and regulations--as the Auditor General herself talked about--and may not have been in a position where they themselves determined the policy or processes within a particular branch. So I would ask that you really tighten up the definition of responsibility.

The other thing is that nowhere have you addressed the issue of complaints or testimony that may prove to be frivolous or malicious, and what kind of process the government, in the interim before whistle-blower legislation, intends to take in order to protect against that.

Hon. Reg Alcock: That's an excellent series of questions. I need to think through the one at the heart of that. Let me just walk through this.

First, dealing with complaints that prove to be frivolous is an issue. My recommendation is that you put in place a process--we use Mr. Walsh. If he determines that the person's complaint is not germane or is frivolous, rather than putting in place a penalty structure that may well be part of the legislation, simply don't bring them to the committee. Just screen them out in that fashion. Be satisfied that the process you have is legitimate and you can trust it, but let's not impose further penalties on people at this point. It is an important aspect of whistle-blower legislation, and one that should be discussed by the committee members when they do it.

You raise a point, Madam Jennings, that I actually missed when I was responding to Mr. Williams' question. When he talked about administrative sanctions, I was not thinking about administrative sanctions for those who might have committed administrative errors. I was thinking of protecting those people who come forward legitimately against sanctions later in their careers that may result from them having stepped outside the envelope of secrecy.

Let me illustrate the point you raise, which I think is one this committee is going to have to speak to. I won't mention the name, but an individual came forward in camera in testimony who said “Look, I knew this was wrong. I raised the concern. I told my superiors about it. My superiors, absent a secondary route to go, told me it was okay; they had the authority and they were going to do it.” So he ended up contributing to things that he knew were wrong, but he had direct instructions from his superior that it was okay. He was caught in a bind. He came forward and gave testimony.

I can tell you something that astounded me, because I was feeling sorry for him and thought he was caught in a terrible position. The two CAs on the committee from both parties said, “How dare you violate your oath”. It was one of those moments that just impressed the heck out of me, in terms of what MPs can do.

I don't have an answer to your question, Madam Jennings. When you do your in camera consideration on how to deal with this, it's an important issue. A number of public servants who have been disciplined are really minor actors. They got caught up in this, and are not the ones we are after here. We're after the people who provided leadership and should have known better.

¿ (0950)

The Chair: I would ask that you give serious consideration to Madam Jennings' point where people felt that they were coerced into breaking the rules but had no benefit of any kind whatsoever from this scandal. They didn't have sufficient authority and responsibility to say “I will ignore the instructions”. You have to give some thought to that, Mr. Alcock, and give some direction, as the President of the Treasury Board and the civil service.

Madam Jennings has a very brief point. Others want to ask—

Mrs. Marlene Jennings: Very brief.

Mr. Dennis Mills: On a point of order, Mr. Chairman, in your preamble you said that we would be able to ask a direct question and a short supplementary. I was never afforded that opportunity.

That's my short supplementary.

The Chair: Mr. Mills, not everybody is going to be able to ask a first question, because the minister has to leave. I'm trying to get around everybody and to be as fair as possible, so I'm going to rule that out of order.

As I said, we didn't set time limits for interventions here.

Mrs. Marlene Jennings: Very briefly.

Minister, in my mind—perhaps not in the minds of my other colleagues—the situation that you describe would clearly provide some form of immunity or protection to that individual. An individual who is not in a position of authority is asked to do something they know is against the rules or procedures, brings it to the attention of their superior and is told, “No, it's fine, you are going to do it”. I'm talking about a situation where an individual, either blindly where they should have known, or wilfully knows that it's incorrect, does not—for any good reason—attempt to correct the situation and bring it to attention.

¿ (0955)

Hon. Reg Alcock: Can I perhaps deal with this issue, Mr. Williams, by asking you, as the chair, to provide me with some advice on this question when your committee meets on this issue? I would be interested in what your thinking is on it, and I will certainly take it seriously and act in accordance with it.

My instruction from the Prime Minister is to make sure that any public servant who has something to contribute to this issue be able to do so in a free and forthright manner.

If you can help me deal with some of these issues, I will work with you on that.

The Chair: Okay, Mr. Alcock, as President of the Treasury Board, I know you have another commitment.

To those who can't ask questions, I'm afraid that the minister has to leave. I thought he was actually going to make a brief statement and then he would....

Mr. Desrochers, did you say that you have a point of order?

[Translation]

Mr. Odina Desrochers (Lotbinière—L'Érable, BQ): I know I will not have time to ask the President of Treasury Board any questions. However, the whole situation we are discussing here today has to do with the government's responsibility, and, as far as I know, the Public Service Modernization Act comes under the President of Treasury Board.

With respect to all the steps being taken to try to protect witnesses, I must say, Mr. Chairman, that I still have a bitter taste in my mouth from our work on the Groupaction inquiry. So, regardless of what is done, I hope we will have their cooperation and that everything will work well. However, I would like to start by saying, Mr. Alcock, that you have all the power you need to pass legislation and protect your witnesses.

I wonder whether you would be here today if it had not been for the Auditor General's report. You had Bill C-25 before the holidays; in other words, you could have legislated. I hope you will be passing legislation now, because you have all the authority required to do that. Rest assured that we will do our part.

[English]

The Chair: That was not really a point of order.

Mr. Alcock, when you have fleshed this out into a clear, complete statement, perhaps you could send it to the committee, and we may ask you to come back at that time.

Hon. Reg Alcock: Thank you, Mr. Williams, although I do need to hear from the committee in terms of the protection that the committee is prepared to afford to witnesses who come before it—on the process, certainly.

As far as Mr. Desrochers' question, and others who are on the committee who might like to ask questions, I'm quite prepared to meet with anybody to talk about these issues, if they have things to contribute. I think this is one that we want to get on top of and resolve.

If I can say, as a final answer, Mr. Desrochers, you're right. I was wrong on Bill C-25 when I was chair of the committee. Your members, and certainly Mr. Martin, said that we had to tighten up whistle-blowing in that legislation. I did not accept that argument, and we had the administrative option. It was only when we went through what happened with the Office of the Privacy Commissioner that I became convinced, and others became convinced. That's why you see that committee putting forward a recommendation, not just that we create a legislative base, but also that a committee craft it—and that's what we're going to do. Unfortunately, it will take a bit of time, and that will be determined by members of your party and others.

The Chair: Thank you very much, Mr. Alcock, President of the Treasury Board.

In response to your question, perhaps the committee may want to think about setting up a task force of one member from each party to work with the Treasury Board on this issue—but that's for the committee to decide at a later point.

Mr. Alcock, I thank you very much for coming forward. I appreciate it.

Hon. Reg Alcock: Thank you, Mr. Chair. It's always a pleasure.

This is my first time before a committee as a minister, you know.

The Chair: The public accounts committee, if they hear that, will make a habit of calling ministers.

Okay, Mr. Alcock, you're now excused.

We're now doing one or two other issues, and then Mr. Walsh, the House of Commons Law Clerk, will come forward.

I believe you all have before you the first report of the subcommittee on agenda and procedure of the Standing Committee on Public Accounts, which met the other day. Is it agreed that we adopt the report of the steering committee?

Some hon. members: Agreed.

The Chair: The steering committee report is adopted as circulated. That was moved by Mr. Jordan.

The other issue we have before us--and again, I hope it's not going to take a full hour--is a motion introduced by Madam Wasylycia-Leis, which was distributed by the clerk in both official languages last Friday and therefore is properly before the committee. It seems to me that it will not take a great deal of debate.

Madam Wasylycia-Leis, do you want to introduce your motion?

Ms. Judy Wasylycia-Leis: Yes, I would like to, Mr. Chairperson.

You have the motion before you, which is to urge the government....

À (1000)

The Chair: It is that the Standing Committee on Public Accounts report to the House of Commons that thecommittee urges the government to introduce effective whistle-blowing legislation at theearliest opportunity.

Ms. Judy Wasylycia-Leis: Mr. Chairperson, this motion flowed from our first meeting last week, when it became clear that if we were going to have any meaningful role in terms of getting to the bottom of the sponsorship scandal, we needed to have whistle-blower protections in place immediately.

I know the President of the Treasury Board has come today with a recommendation that appears to pre-empt the need for this. However, I think all he has done is raise more questions about why previous attempts at whistle-blower legislation have been ignored by the government, why when this government would have known about the report of the Auditor General of Canada back in November, and certainly by December 12, when ministers were sworn in, no attempts were made to actually craft legislation that could then be introduced in the House as soon as we reconvened.

I think the manoeuvres today by the President of the Treasury Board give us all pause for concern. I think the suggestion now is that suddenly the onus is on this committee to develop legislation, when in fact--

The Chair: I'm not sure that we're into developing legislation, but the minister did actually charge us with some responsibilities.

But I think the motion itself is fairly self-explanatory. I would think the committee would agree with the motion. Again, I don't want to get into debate, because it is self-explanatory.

Mr. Jordan, you had a quick point.

Hon. Joe Jordan: I agree with the motion. I thought the explanation from the President of the Treasury Board was quite insightful in terms of the gap, but I would just like to point out that--

The Chair: You're in agreement with the motion?

Hon. Joe Jordan: Yes.

The Chair: Okay.

Hon. Joe Jordan: I'd just like to point out, though, that we can't have it both ways. We can't complain about the government making all the decisions from a very centralized point, and then complain that when they try to de-centralize it, that doesn't work either. We have an opportunity to try to get this right, and I think the legislation will take time.

I thought the argument was valid, but the push doesn't hurt, and I'm fully prepared to support this motion.

The Chair: Okay. Do we really need a lot of debate on this issue?

Next, Mr. Forseth--a brief point--and then Ms. Phinney.

Mr. Paul Forseth: I'll just respond to Mr. Jordan and say you can delegate a responsibility to act, but you can never delegate accountability.

The Chair: Okay, thank you.

Ms. Phinney.

Ms. Beth Phinney: I agree with the motion, but I think it's redundant, because we're already doing this, and I think the comments made by the honourable member explaining why she has made the motion are just political grandstanding.

The Chair: Mr. Lastewka, please.

Hon. Walt Lastewka (St. Catharines, Lib.): Just as a point of clarification, having come from the government operations committee this morning, which was studying, I understand, whistle-blowing, is my understanding correct that the Standing Committee on Government Operations and Estimates would be responsible for whistle-blowing when the time comes?

The Chair: That's right. The public accounts committee does not deal with legislation, other than the Auditor General Act. Therefore, it would not come to this committee when introduced by the government.

Mr. Desrochers.

[Translation]

Mr. Odina Desrochers: Yes, Mr. Chairman, but I would like to keep Ms. Judy Wasylycia-Leis's letter in our files, because it is a logical follow-up to what we have been discussing since 9 a.m. this morning. The President of Treasury Board said that he was going to look carefully at the advisability of reopening some provisions of Bill C-25 on the public service. That is certainly relevant to the letter tabled by my colleague. I would like that letter to be appended to this morning's proceedings.

[English]

The Chair: We will do more than just keep the letter in the file. Our research staff will be instructed to prepare a report, I expect a fairly brief report, which perhaps can come to this committee as early as next week. It could be adopted by the committee and tabled in the House of Commons.

So the question is “That the Standing Committee on Public Accounts report to the House of Commons that the Committee urges the government to introduce effective whistle-blowing legislation at the earliest opportunity.”

(Motion agreed to)

À (1005)

The Chair: Ms. Phinney.

Ms. Beth Phinney: Could I just ask you what you just said? What is the clerk going to prepare a report about? Do we accept this or don't we accept this as a motion? Why is he going to prepare, from what you just said, a report on something?

The Chair: The motion says that the public accounts committee report to the House of Commons. That's what the motion says. So the research department will prepare a very brief report. They will write it up.

Ms. Beth Phinney: Okay.

The Chair: It will be brought here for approval by the committee and I will table it in the House in a normal fashion.

Ms. Beth Phinney: It doesn't make much sense to write a 30-page report on something that just needs to be one sentence.

The Chair: I expect it here by next Tuesday; therefore it will not be 30 pages.

I'd now like to introduce Mr. Rob Walsh, the Law Clerk and Parliamentary Counsel of the House of Commons. He will give us some oversight or overview as to how this committee of the House of Commons can work in conjunction with a judicial inquiry, a police investigation, and a special counsel trying to perhaps engage in civil litigation, and whatever other activities commence from the Auditor General's report. After that, we hope to move into an in camera session, where he can give specific instruction to us, in essence, as a lawyer speaking to his client. We normally don't do that in front of the nation, so we'll try to do it in two parts, public and then following in camera.

Mr. Alan Tonks (York South—Weston, Lib.): On a point of order, Mr. Chairman, it's with respect to how you wish to proceed on the in camera part. We had said at the beginning that we would like to stay in public as much as we could. There may be questions that are of a systemic nature that don't implicate particular individuals but are process-oriented. Could I suggest, Mr. Chairman, that you play that by ear? I have a couple of questions with respect to process. You can certainly rule that those are questions that should be in camera, but I would like the opportunity and I would think the committee would like the opportunity to ask questions. You and Mr. Walsh could be the arbiters as to whether those are the kinds of questions that need to be in camera. But in order to stay with your concern and the committee's concern, could we try to stay in public as much as we can?

The Chair: Absolutely, Mr. Tonks. It's my intention to have, if not all, virtually all in the public record.

Now, without further ado, Mr. Walsh.

Mr. Rob Walsh (Law Clerk and Parliamentary Counsel, House of Commons): Thank you, Mr. Chairman.

Before I begin my prepared statement, I should first say that what I have prepared was prepared before hearing Mr. Alcock's comments this morning. I'm prepared to comment to this committee if any questions arise from members that they wish to put to me in relation to what Mr. Alcock had to say.

In any event, Mr. Chairman, I'm pleased to be here today, as I have been on earlier occasions, for the same purpose. Some of this may be repetitious to some of you, but it bears repeating, I would submit.

As I understand matters, the Standing Committee on Public Accounts once again may be calling witnesses who may be under investigation by the RCMP. In addition, current and former ministers, as well as public servants, may also be called to testify in respect to matters that will be the subject of a judicial inquiry where some, or all, of these persons may be called upon to testify at a later date.

[Translation]

The concern now, as before, is whether the committee should take precautions to avoid unnecessarily comprising the legal rights of individuals who might testify before this committee or at any police investigations, or to avoid interfering with the judicial inquiry under Mr. Justice Gomery.

À (1010)

[English]

Mr. Chairman, there is no law that prevents this committee from launching an inquiry regardless of the nature of the subject matter of the inquiry or what may be happening elsewhere in relation to the same subject matter. In my opinion, there is no limitation in law constraining the House of Commons or a standing committee of the House of Commons in the exercise of their powers. Members of Parliament, when sitting as the House of Commons or as one of its standing committees, are meant to serve the public interest broadly defined and are permitted by law to do whatever they feel necessary and appropriate in fulfilling that duty.

As a general proposition, the House of Commons and its committees may require any person to testify before it and may require the production of any document to it. In addition, Erskine May, the authority on parliamentary law, in the 21st edition on page 680, states the following: “A witness...cannot excuse himself, for example, ...because he has taken an oath not to disclose the matter about which he is required to testify”. Where an individual refuses, Mr. Chairman, he or she may be found in contempt of the House of Commons.

This being said, a number of conventions have developed over time regarding the protection of the independence of the various decision-making bodies that may be required to examine a matter. In the present circumstances one has to consider the difference between the mandate of this committee and that of a judicial inquiry, as well as the relationship between the House of Commons and the executive branch of government. In recent years the courts have considered the various roles and responsibilities of the three branches of government: the legislative branch--the House of Commons and Senate; the executive--the cabinet, departments of government, and crown agencies; and the judiciary. Within their respective spheres, each of the branches is independent of the others and ought to avoid interfering with each other's business.

Judicial inquiries are public inquiries chaired by a judge, and for legal purposes there is no distinction that turns on whether or not a public inquiry is chaired by a judge. The inquiry is given terms of reference that set out its purpose; the extent of its inquiry; and, where appropriate, specific limits on what the inquiry may or may not do.

Public inquiries are fact-finding bodies. They are not courts of law. As such, their findings are not taken as findings of criminal or civil liability.

In the court case relating to the commission of inquiry on the blood system, the Supreme Court of Canada in 1997 summarized the role of public inquiries in the following manner:

Perhaps the basic principles applicable to inquiries held pursuant to Part I of the (Inquiries) Act may be summarized in an overly simplified manner in this way:

(a)(i) a commission of inquiry is not a court or tribunal, and has no authority to determine legal liability;

(ii) a commission of inquiry does not necessarily follow the same laws of evidence or procedure that a court or a tribunal would observe;

(iii) It follows from (i) and (ii) above that a commissioner should endeavour to avoid setting out conclusions that are couched in the specific language of criminal culpability or civil liability. Otherwise the public perception may be that specific findings of criminal or civil liability have been made.

(b) a commissioner has the power to make all relevant findings of fact necessary to explain or support the recommendations, even if these findings reflect adversely upon individuals;

(c) a commissioner may make findings of misconduct based on the factual findings, provided that they are necessary to fulfill the purpose of the inquiry as it is described in the terms of reference;

(d) a commissioner may make a finding that there has been a failure to comply with a certain standard of conduct, so long as it is clear that the standard is not a legally binding one such that the finding amounts to a conclusion of law pertaining to criminal or civil liability;

(e) a commissioner must ensure that there is procedural fairness in the conduct of the inquiry.

I shall provide this extract from the Supreme Court of Canada as a handout for members of the committee, Mr. Chairman.

À (1015)

That's the end of the Supreme Court of Canada statement on public inquiries.

These limits, as the court ascribes them, are placed upon public inquiries to ensure that any criminal charges that could result or any civil actions that may be taken are not compromised by the findings of the inquiry.

A recent decision of the Supreme Court of Canada has stated, and I'm going now to the question of the relationship with the executive branch of government, and I quote:

Thus, ministers undertake by oath as Privy Councillors to maintain the secrecy of Cabinet deliberations and the House of Commons and the courts respect the confidentiality of Cabinet decision-making.

In the case of the House, this respect is by way of convention. In the case of the courts, it is by statute, the Canada Evidence Act, section 39. As stated earlier, the House of Commons and its committees have the ability to require that individuals testify and produce documents, and those who testify must answer all questions and produce all documents. This is true even when it comes up against what is described by some as crown privilege, including cabinet confidentiality.

In 1965 the House of Commons adopted guidelines relating to questions that may be asked in question period and which would seem equally applicable to the work of committees. Included in the list of questions that should not be asked in question period are ones that relate to information that is secretive in nature, such as cabinet proceedings, or that address a minister's former portfolio, or any other presumed functions, such as party or regional political responsibilities. This is set out in the Marleau and Montpetit text at page 426.

The matters covered by these guidelines essentially reflect the relationship between the House of Commons as the legislature and the cabinet as the executive branch of government.

On section 39 of the Canada Evidence Act, I have this section in a handout that will be distributed to members at the end of my presentation.

Mr. Chairman, section 39 of the Canada Evidence Act provides that where documents relating to the business of cabinet are subpoenaed or sought to be used in a court or in other legal proceedings, the Clerk of the Privy Council or the minister in question may issue a certificate indicating that the document is covered by cabinet confidentiality. Once this certificate is issued, the document cannot be compelled to be produced in the legal proceeding.

The courts, in a number of cases where the government has sought to limit production of cabinet documents, have reached the following conclusions in this regard. First, the courts have concluded that the clerk or minister may issue a certificate under the Canada Evidence Act, section 39; there is no requirement that they must do so in every instance. By issuing the certificate, the government is protecting a document from disclosure. By not issuing a certificate the cabinet is, in effect, waiving its right to protect the document from disclosure. Secondly, because there is a choice whether to disclose, failure to disclose may be construed against the government by the court.

[Translation]

As a result, there is no absolute privilege against inquiries into cabinet business. The Committee can ask for the information it wants and the Ministry can choose whether or not to disclose the information. Secondly, failure to disclose can be used against the government.

[English]

In other words, in my view, the government is at liberty to share cabinet confidences on this matter if it wants to do so.

Privileged testimony....

[Translation]

Testimony heard by a committee is part of the deliberations of Parliament and is protected by parliamentary privilege. More specifically, they cannot be used against the person who gave the testimony in a court of law for either a criminal or civil case, such as a libel suit, for example.

À (1020)

[English]

There's also the matter of derivative evidence. Where testimony before a parliamentary committee relates to matters that are under investigation in respect of a possible Criminal Code offence, this testimony cannot be used by the investigating authorities to generate other evidence or to shed light on evidence gathered elsewhere. Such evidence derived from testimony that is privileged is sometimes called derivative evidence and cannot be used in a legal proceeding against the witness.

There remains the question of whether the interests of justice--that is, any pending or eventual investigative process and/or associated legal proceedings--or the interests of the upcoming judicial inquiry might be put in jeopardy by the committee providing to witnesses an opportunity to shroud evidence of wrongdoing with the protection of parliamentary privilege, particularly with respect to the extended application of this protection in respect of derivative evidence, as I mentioned earlier.

There is the option of going in camera, but this might only undermine the public purpose mandating this committee's inquiry, namely, full public disclosure of the actions of ministers in this sponsorship matter and of the dealings between the responsible minister or ministerial staff and the public servants assigned to administer the sponsorship program. There has already been considerable public disclosure, whether through the Auditor General's report or other media reports. Further public testimony may serve the useful purpose of clarifying matters already in the public domain.

I would recommend that the committee not go in camera unless a witness requests that it do so, and then only if it is satisfied that the testimony ought not to be presented in public out of deference to the pending judicial inquiry, or possible police investigations, or proceedings by the special counsel charged with recovering funds wrongfully paid. Nonetheless, committee members might restrict their questions to witnesses, if any, to seeking elaboration or clarification of matters raised by the witness, rather than cross-examining or challenging witnesses.

[Translation]

However, I am aware that I am the Parliamentary Counsel and the Law Clerk of the House of Commons. As such, I must take the entire legal system into account, including constitutional conventions.

The “conventions”, as professors Brun and Tremblay say,“are also sources of law governing the relationship between the elected assembly and the government.” That, as well relations with the judicial branch, are what we are dealing with today.

[English]

Mr. Chairman, this committee has been invited by the Prime Minister to look into the matters raised by the Auditor General's report pertaining to the government sponsorship program in Quebec. It is important to remember that this committee is not doing a judicial inquiry; it is doing a parliamentary inquiry. There is a difference, and the difference, in my view, is ministerial accountability, the cornerstone of responsible government in a parliamentary system of government as we have here in Canada. Consequently, the remedies to be developed here are different from those that may flow from a judicial inquiry or a police investigation.

[Translation]

There are in fact two things which members could accept as being legitimate constraints to the exercise of a committee's parliamentary powers. One is the principle of responsible government, which underlies any parliamentary system, and the other is the concept of justice in its strictest and widest meanings. I would not want you to think that one is more important than the other; in my view, both merit consideration.

[English]

Fundamental to the parliamentary system of government is the notion of responsible government, which, simply put, is that the government is responsible or accountable to the House and must enjoy the confidence of the House if it is to continue in office. This gives the House the power to dispose of the government by a vote of non-confidence, but also gives the House responsibility for exercising ongoing scrutiny of government action, what is sometimes called parliamentary oversight.

It is in this context, and only in this context, that the unlimited powers of committees are to be exercised, in my view.

[Translation]

The principle of responsible government must be taken into account when you consider the power of parliamentary committees to summon officials to testify on internal affairs. A committee of the House does not have the power to summon either a member or a minister. This is indicated in Marleau and Montpetit on page 861. In my opinion, it is the duty of the responsible minister, or his representative, to answer questions put by a committee of the House. A committee could abuse its power by forcing an official to testify if the official has not received authorization to do so by the minister on behalf of the minister, since this would go against the principle of responsible government, whereby only the minister responsible can be held accountable to Parliament.

À (1025)

[English]

The committee's power to summon witnesses nonetheless applies, and the public servant might properly be found in contempt of the committee proceedings were he or she to simply not show up when summoned.

Once before the committee, however, the public servant might be justified in declining to answer questions pertaining to internal government business without the authorization of the responsible minister.

Where the questions to the public servant relate to alleged unlawful conduct in a government department, does the public servant's responsibility change? Perhaps, though it is reasonable to suppose that the public servant might fear administrative reprisals.

Although considered at arm's length, crown corporations have a designated minister and are subject to the same responsibilities to testify before committees. Since the employees and officers of crown corporations are not public servants, they do not come under the control and directives of ministers. As such, the same deference to the minister by employees of crown corporations may not apply, though the employee may need authorization from the CEO of the crown corporation.

The committee might object to a public servant's refusal to answer its questions and cite the public servant for contempt in a report to the House. The House has the power to decide the matter as it sees fit. There is parliamentary law to support the proposition that the House could imprison the public servant for any period of time not extending beyond the end of the current parliamentary session.

In my view, with the advent of the Charter of Rights and Freedoms, it is not realistic in Canada to consider this power any longer available to the House, which brings me to the second matter for consideration, principles of fundamental justice.

[Translation]

Just imagine that you were the object of a police inquiry or that legal action had been taken against you. You would quickly realize how important the idea of justice becomes, and the principles of justice which uphold the law and legal procedure, be it in relation to police investigations, civil actions or even administrative sanctions taken by a government service.

[English]

It is a matter of balancing competing interests: the interests of the individual in being treated fairly, consistent with the fundamental principles of justice underlying our legal system on the one hand, and the interests of the country and good government.

There are, however, more than these competing interests here. I would submit there is also a third and larger interest, and that is the public interest that our parliamentary system of government function effectively, that its elected representatives be at liberty to act in the public interest as they see fit. This would include, in my view, the freedom to inquire into whatever matters they might think warrant inquiry and to use the full authority of the House--or a committee of the House, as the case may be--to do so, consistent with the constitutional and legal values and rules of our society.

Bottom line, Mr. Chairman: this committee must make the call about how far it goes in its inquiry. However you decide, it remains the case, in my opinion, that this committee has full authority and unlimited powers to inquire into the policies and actions of the government, however it sees fit. The difficult question is how this committee should do this, having in mind the principle of responsible government and, as well, the competing interests of justice, as I have discussed.

Only this committee, subject to any instruction that might come from the House, can answer this question.

Thank you, Mr. Chairman. I am prepared to take questions if the committee members wish to pose them.

The Chair: Thank you very much, Mr. Walsh.

I am going to instruct the clerk to distribute your opening remarks, in both languages, to all members of the committee, as quickly as it can be done. I would appreciate that.

In the interests of time--we have half an hour--we are not going....

Mr. Walsh.

Mr. Rob Walsh: Could you also ask if the clerk could distribute to the members--

À (1030)

The Chair: Yes. We already have the role of public inquiries, Supreme Court of Canada ruling in 1997, which can be distributed right away, and Confidences of the Queen's Privy Council for Canada. The definitions are right here, and that can be distributed right away as well.

We can't do an eight-minute round followed by a four-minute round because we only have 30 minutes. Is it agreeable that we perhaps go three minutes and see how far we can go? Is that agreeable?

Some hon. members: Agreed.

The Chair: That's agreed? Good.

Mr. Forseth, please.

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

I have three specific points I'd like you to expand on, again, but before we get to those three points, I just want to state the opinion that I do not agree with you that the charter has taken away Parliament's power to place whom they desire into custody. Lest silence from the committee signal acceptance, I want to make the point that it's your opinion, and it is only that, an opinion.

First, I'd like you to review the caveat that evidence given at committee cannot itself be the basis for evidence in a criminal investigation. You did touch on this matter. Perhaps you could review the distinctions. The evidence can't go against the particular witness, but what about others? Perhaps you could explore that distinction and some of the finer points there. That's number one.

The second point is that we, this committee, can cause the arrest of an individual and compel their attendance to committee from anywhere in Canada. Perhaps you can touch on the powers a committee has to compel a witness.

Three, perhaps you could give us some advice. Should we swear witnesses when they sit in your chair, at that end, concerning possible contempt, certainly to clarify to the witnesses the inherent nature of this kind of proceeding and also to the committee and to others who are watching? As you will recall, at the government operations and estimates committee we got into the difficulty later of asking, “Should we have sworn? Should we not have sworn?” We were looking back on it.

I've made those three points, and I hope you can expand on them.

The Chair: Mr. Walsh, it was my intention, at the start of every meeting dealing with this issue, to read the Standing Orders stating that people are perceived to be, are deemed to be, under oath. So if you can't give a brief answer, perhaps you can follow anything up with a written report to the committee.

Mr. Rob Walsh: If I may, I would preface my answer to the question by saying that Mr. Forseth is quite right, it is my opinion I was expressing regarding the charter, and that's why I used the word “realistic”. It's an undetermined legal question.

With regard to protection of testimony and the privileged status of testimony regarding third parties, the basic rule, Mr. Chairman, is that testimony at this committee is privileged for any purpose in terms of other proceedings. It cannot be referred to and used in other proceedings for any purpose whatsoever. It is fundamental that legal proceedings elsewhere cannot rely on, refer to, or cite testimony provided in the course of a parliamentary proceeding, and a committee proceeding is one of those.

In terms of compelling persons to testify, a summons to testify can be issued by the committee. I don't believe it's the case that the committee could ask the Sergeant-at-Arms to go out and seize someone and drag them here. You would have to go to the House and get a House order to that effect before any actions of that nature could be taken before an individual. But a summons certainly could be delivered and served, and if they failed to comply with the summons, that would be the basis for going to the House, for the House to authorize further steps.

In terms of swearing witnesses, I think the statement the chairman just referred to, about reminding witnesses they're under oath, in most cases should suffice. I'd like to think that in all cases it should suffice. The only advantage, in my view, to the swearing is that if you anticipated that later you might be laying criminal charges of perjury, the absence of an actual explicit oath might be problematic to any further prosecutions for perjury. It is possible, in theory in any event, to prosecute someone for perjury. I should remind you that perjury is a very hard matter to establish as a matter of law, but it is possible, and you would need the oath if you anticipated doing that. However, all witnesses are deemed, as a matter of parliamentary law, to be obliged to speak the truth, and it may be in some cases that requiring them to swear an oath is counterproductive.

The Chair: Mr. Desrochers.

[Translation]

Mr. Odina Desrochers: Thank you, Mr. Chairman.

Mr. Walsh, thank you for being here. I have three questions. First, it would appear that, if Bill C-25 were amended, it would provide some sort of protection to public servants who may have been involved in the events raised by the Auditor General. Does the public accounts committee have the power to provide this protection to other employees of Crown corporations who may also be implicated by the Auditor General's report?

Second, you said that ministers could always refuse to answer questions for reasons of ministerial confidentiality. However, if an official tells a minister that a given situation has been described outside of cabinet, how far can the public accounts committee go to shed light on the matter?

Third, would it be fair to say that meetings should be held in camera only if the matter is before a criminal court? Thank you.

À (1035)

Mr. Rob Walsh: I did not take any notes, but we cannot forget that testimony given before a parliamentary committee is protected and privileged. You don't need Bill C-25, or any other piece of legislation, to guarantee that testimony given here is protected. The testimony cannot be used for other purposes, such as any type of legal proceeding or disciplinary measure.

The second question dealt with ministerial confidentiality. In my opinion, it is up to the official to decide whether or not the subject or the answer is truly confidential or not. The official could ask the minister or deputy minister for advice with regard to the issue at hand, but it is ultimately up to the official to decide. However, the moment the official is in committee, he or she is protected by the committee.

You could also say, Mr. Chairman, that Mr. Alcock's offer is not really necessary. It's good to receive the assurance from the minister that there won't be any reprisals against officials. But, in reality, you don't need that assurance from the minister, because the testimony given here is protected and that it cannot be used to impose internal disciplinary measures on the official within the department.

Mr. Odina Desrochers: And what is your answer to the last question?

Mr. Rob Walsh: What was it?

Mr. Odina Desrochers: I asked you whether a meeting should be held in camera only when a person is before the criminal court.

Mr. Rob Walsh: I do not understand. Are you talking about in camera meetings here?

Mr. Odina Desrochers: Yes. I recall the unfortunate situation we had with Chuck Guité and Groupaction. We had to hold in camera meetings. After that, many colleagues told the media what was going on. I think that at the time, Mr. Guité was under investigation by the RCMP.

Now, if we get into a similar situation again, we may find it necessary to go in camera in order to proceed with the work of the committee. But I would not want to see us overdo it with in camera meetings, because they cause problems. I think it is important to think about that.

Mr. Rob Walsh: If I understand correctly, Mr. Desrochers, the issue of in camera meetings is unrelated to the broader question of the protection of testimony here. All testimony enjoys the same protection, whether it is given in camera or not. As for comments made by members outside the room, that is another matter: those are public comments. Perhaps the RCMP is going to listen for comments that provide helpful evidence, but in theory, the testimony is protected whether it is given in public or in camera.

Le président: Ms. Jennings, please.

[English]

Mrs. Marlene Jennings: Thank you, Mr. Chair.

I want to continue on the same line of questioning on the issue of parliamentary privilege, which anyone who appears before this committee or any other standing committee of the House of Commons enjoys, and on the issue of derivative evidence. I'm sure that the overwhelming majority of Canadians probably have no clue and are struggling to understand what that actually means in practical terms. So I'd like to give one example, and you can explain if that would be an example of derivative evidence.

We have someone who comes before us. Let's forget what their title is. That person provides testimony, in the framework of the Auditor General's report on the sponsorship program, going to the heart of their own actions, which may be admissions of administrative violation; judicial violations, in terms of possible criminal activity; and possibly civil liability; and at the same time brings in other persons who they name—or perhaps do not name, but clearly provide evidence of possible guilt or allegations of criminal violations or civil responsibility. Even if the RCMP, like every other Canadian, was listening to that testimony, and attempted to begin a new investigation or a new branch of investigation, and if criminal prosecution resulted, the crown would have to show that the evidence it was bringing forward was not derived from the testimony before this committee.

That would be a heck of a burden, would it not, because they would actually have to be in a position to show how they independently developed that evidence, which in no way came from.... So yes, there was evidence before the committee, but they were able to develop that same stream of evidence leading to those same individuals independently of the person testifying before the committee.

À (1040)

The Chair: Mr. Walsh.

Mr. Rob Walsh: I agree with what the member has just stated, Mr. Chairman. I don't know what further comment I can make.

Mrs. Marlene Jennings: Given that, is it not incumbent on this committee, when any witness comes before us, to make sure that if there is a criminal investigation ongoing that the individual is in fact in no way of interest, either as a witness or as a potential accused in the same way, in terms of civil responsibility?

The committee in its wisdom may decide that we wish to hear the witness anyway, but will do so in full knowledge that we may in fact be closing off other avenues to our society, either through criminal prosecutions or civil litigation, in order to get at that testimony.

Mr. Rob Walsh: Mr. Chairman, you won't know who is under investigation ahead of the fact. The police don't announce publicly who is under investigation; they're not going to share that with you. You don't know how relevant the witness's testimony is to any investigation, so you're in the dark on those kinds of considerations. The option, obviously, is to go in camera; if you have some concerns about the possibility of the evidence being used for that purpose, you can go in camera. The other question is whether the witness might be more at ease in camera, with the result that the witness may be more ready to be frank and fulsome in his or her answers in camera, as opposed to in public.

Many of your concerns, Ms. Jennings, are valid, but they're somewhat ahead of the game. You don't know who is under investigation, and the committee has to ask itself, notwithstanding all of those concerns, is there a larger public interest here that this committee needs to address?

Mrs. Marlene Jennings: Notwithstanding, even if we knew.

The Chair: Ms. Judy Wasylycia-Leis.

Ms. Judy Wasylycia-Leis: I have a couple of questions. I'd like to explore the general issue of the kind of role we can play as a public accounts committee in this broader context of a public inquiry going on and the work that we're about to begin.

Based on your general knowledge of the role of public inquiries and your oversight here in Parliament in terms of the committee work that we're doing, what can we do that will complement what the public inquiry is doing but that the public inquiry can't do? I know you've already talked about the parliamentary privilege attached to the committee, and the ability to perhaps get testimony that wouldn't otherwise be possible in a public inquiry. But in a broad scheme of things, and as you see this issue unfold, what can we do here that will be useful in terms of what we all want, which is getting at the truth of who ordered money or commissions to be disbursed through the sponsorship program?

The Chair: Mr. Walsh.

Mr. Rob Walsh: Mr. Chair, the member raises the very question I've been wrestling with since I first heard the Prime Minister announce the launching of a judicial inquiry at the same time as he invited this committee to look into this matter. I have been struggling to try to identify.... I've shared these concerns with you in some discussions we've had. I can't begin to try to discern what the Prime Minister had in mind when he made these announcements. I've been trying to discern what it is this committee could do that the judicial inquiry isn't doing.

You might put it in commercial terms as what's the brand identity you might give to this committee's undertaking that is distinct from the judicial inquiry, not simply so that you have some profile in your undertaking, but also so that you don't tread on the judicial inquiry. You're going to have to tiptoe through the tulips, as it were, to get to the facts. And the facts that are germane to the judicial inquiry arguably are not the same ones that might be germane to what this committee does.

As I've tried to say earlier in my statement, the one singular feature of a parliamentary committee--and obviously this one as well--that distinguishes it from a judicial inquiry is the question of ministerial accountability. The judicial inquiry is not at all authorized to do what you might call a ministerial accountability in the sense of responsible government. Yes, the facts may be discerned by a judicial inquiry of a kind in that it lands on the doorstep of this minister or that minister in some manner. But this committee, on behalf of the House, is in a position to look to the ministry, as I said in my earlier statement, for it to explain how this happened, how it could have happened. And it goes to the question of ministerial competence, ministerial integrity, all those usual questions.

As Mr. Alcock said earlier in the context of the government operations committee's review of the Office of the Privacy Commissioner, ultimately the test for the committee was whether they had lost confidence in the Privacy Commissioner. It wasn't whether they had made a case to convict on this offence or that offence, but from all of the testimony they'd heard, at the end of the day did the committee lose confidence in the Privacy Commissioner? He was a parliamentary officer, after all, and if that had been their conclusion, they could have reported it and the House could have acted accordingly.

In a similar fashion, this committee might be asking itself, do we have cause here to question the competence or integrity of the ministry? For those purposes you hear testimony, you call upon the minister, you might call upon the Prime Minister, you might call upon former ministers and prime ministers.

You ask yourself, do we have a basis here to be concerned about the ministry, and then you hear public servants in that regard--is there ministerial interference with the public service and all this sort of stuff. Then you make a report. That's the only thing, in fairness--and I'm not trying to suggest this is what you ought to be doing, necessarily, but it certainly is the one sort of raison d'être that I can identify as appropriate to a parliamentary committee that is not appropriate to a judicial inquiry. But it may or may not suit the....

You have the power to do whatever you want. I'm just saying this may be one way of doing it in a way that's distinct. There may be some overlapping in terms of subject matters touched on, but it's a distinct objective from that of the judicial inquiry, in my view.

À (1045)

The Chair: Thank you, Mr. Walsh.

Mr. Mayfield, please.

Mr. Philip Mayfield (Cariboo—Chilcotin, CPC): Thank you, Mr. Chair.

Thank you, Mr. Walsh. It's always a pleasure to listen to your organization and explanation.

As you began your comments you spoke of the committee using broad terms in considering who they might call and the questions they might ask. Later on in your comments, toward the end, you talked about the difficulty of asking certain questions, perhaps challenging or cross-examining a witness, and of their responsibility to the government. Finally, you concluded by saying we should really consider the public interest and ask the questions that need to be asked.

Now, from a lawyer's point of view that's probably the way to deal with it, and I'm not challenging you on that. But the first question I want to ask is that Mr. Alcock, the President of the Treasury Board, was here this morning and we were talking about whistle-blower legislation and the kind of protection that witnesses would need before that takes place to say what needs to be said in the public interest. I'm wondering, if I'm not putting you on the spot--and if I am, if I could push you just a little bit anyway--what difference do Mr. Alcock's comments make to your address and to the suggestions and advice that you've given to this committee?

The other question, if I may, is related to the committee itself. That is, that as you discuss the division of responsibility between Parliament, the executive in government, and the judiciary, there are distinctions, and now we have three government members, three members of the Privy Council, on the committee. Do you see any semblance of conflict of interest for parliamentary secretaries in crossing those lines, in a way that hasn't been there before?

Mr. Rob Walsh: Let me go to the earlier question, regarding Mr. Alcock's comments.

The narrow legal response—and it's a narrow response—is that, as I said earlier, his assurance of no reprisals or actions being taken for testimony here is unnecessary, because he could not use the testimony here for any such purpose anyway.

That's the narrow response. I think the more fulsome response on my part would be to say that I think it was a positive contribution to what this committee is undertaking, so that the public servants hear the President of the Treasury Board say it. I can talk until the cows come home about the theory of parliamentary privilege and all the protection of testimony, but as sure as dollars to doughnuts, you're going to find witnesses who are fearful about what may happen nonetheless. It was good, I think, of the President of the Treasury Board to make the comments he did, which need further study by this committee and a response to the minister.

On the second question, about a conflict, yes, there's a conflict: it's inherent in a parliamentary system of government. You have ministers who sit in the House as members of Parliament, and they ostensibly have commitments to the executive branch—which they owe to the Governor General and the Crown, in that sense—and they have their parliamentary duty. There's inevitably a certain amount of conflict by virtue of the fact that you have members of Parliament who have executive branch duties. That's our system of parliamentary government. A parliamentary secretary sitting on a committee is, in my view, in no different situation.

It's not to say the committee couldn't object if it chose to and ask that parliamentary secretaries not sit among its membership; that's up to the committee. I don't think there's anything unparliamentary about a parliamentary secretary being a member of a parliamentary committee.

À (1050)

The Chair: We'll have the final intervention from Ms. Phinney.

Mr. Tonks, you gave me notice of a question. I had a quick discussion with the law clerk. I think perhaps we'll raise that in camera.

We'll have Ms. Phinney's intervention.

If you want to ask the question, you can ask the question, and we'll give you the final answer.

Ms. Phinney.

Ms. Beth Phinney: You've said a number of times that any testimony being given here is privileged information and can't be used against the individual in any other court or whatever.

I spoke to two criminal lawyers yesterday, because I'm really concerned about what we're doing here and because of the feeling I've had before today, and before your suggestion today about what our mandate might be here—to look into accountability and the competence of a ministry—that we were going to maybe go on a witch hunt and would have people from the advertising companies, and people like that, here.

Both of these criminal lawyers suggested this would almost guarantee that no one who appeared before our committee would ever be charged with anything. That's one comment they made—and these are people who are very active criminal lawyers—that once they've appeared here they're guaranteed almost absolutely, 99%, of not being charged. It's very difficult, as the honourable member here already stated.

They both suggested we ask the commissioner's counsel to appear to discuss with us how we could proceed in a manner such that we wouldn't be handicapping any of their proceedings in the inquiry. What do you feel about that?

Mr. Rob Walsh: Mr. Chairman, if the committee wishes to hear the commissioner's counsel, it might be a useful thing to do, but you're going to hear the point of view of the commissioner's counsel with respect to the interests of the judicial inquiry. I can only counsel you not to cause those interests to unnecessarily override your own legitimate parliamentary interests.

On the other point, about publicity guaranteeing no charges will be laid, there's some truth in what you're saying. It sounds, the way you're saying it, like a bit of an overstatement. There are charges laid on matters that have been in the public.

It's not so much the proceedings here that are the problem, but the huge publicity that may flow into the public domain from whatever testimony is given here. If the media were to go on repeatedly about so-and-so doing so-and-so, the concern is that in any criminal prosecution the rights of the accused would have been compromised by this publicity, which in the public eye leaves the individual looking culpable before he or she has had a chance to be tried. It's the publicity.

You can deal with that to some extent by going in camera, as the committee did in the privacy commissioner case to avoid that very thing.

Ms. Beth Phinney: Going in camera is fine as long as everybody can be trusted to keep it in camera. There's no guarantee that people will keep it in confidence.

Is there anything we can do against anybody on the committee who takes it out, talks to the media, and makes it public? Can the committee ask this person then to leave the committee? There's no point in having it in camera if the members are going to go out and talk to the media. There's no point.

Mr. Rob Walsh: I appreciate that.

The answer is not a very satisfactory one that the committee might well be of the view that the person should no longer be a member of the committee. I suppose it could report that to the House and ask that the membership be changed, or through consultation with the whips make that effect. But there's no ready answer for the remedy or reprisal that could be taken.

À (1055)

The Chair: Mr. Tonks, briefly, please.

Mr. Alan Tonks: Thank you, Mr. Chairman.

The purpose of my question is to attempt to keep the process clean, in terms of what the committee is charged with in its responsibility, as opposed to the judicial inquiry. I appreciate very much, on behalf of the committee, the overview you gave us.

Yesterday we heard from the Auditor General on the question asked by the opposition of why ministers and the Prime Minister were not interviewed as part of her process. Her answer was that in terms of her responsibilities in looking at the systemic issues, that testimony would not add “materially”--that is my word--to her terms of reference.

If that is the case, do you feel that the RCMP and the judicial inquiry would deal with--to use your terms--deliberate attempts to circumvent the law? Taking the Auditor General's cue, this committee should be charged with those deliberate attempts to circumvent the rules, processes, fail-safe provisions, checks and balances, and accountability mechanisms--call them what you want--with the end result being that public confidence is lost and the public interest cannot be served. Would you generally say that is the spirit, and rules of procedure and who we call in terms of witnesses should contribute to this committee's role in deliberate attempts to circumvent the rules of the House?

As a question from that, is it the committee's responsibility to put in those checks and balances, those fail-safe provisions, in the public interest, inasmuch as there's a huge cloud over the civil service, the government, and all the institutions of government, which is not serving the public interest?

Mr. Rob Walsh: My answer to Mr. Tonks is “none of the above”, in the sense that the committee, unlike the RCMP, is not looking to investigate breaches of the law as such. This committee, unlike a judicial inquiry, is not looking to find out who did what, with whom, behind whose barn. That is something for the inquiry to sort out with the facts. This committee is not doing what the Auditor General set out to do, in looking at internal systems of the department, and whether they were or were not in keeping with usual good business practices of a public department of government and accounting principles, etc.

This committee is doing yet another thing, and that is going to the question of the ministerial role in this. To what extent was the ministry--whether that means the Prime Minister, this minister, the former minister, or a collection of ministers, their staff, and perhaps senior government officials--using its political or ministerial authority to cause a circumvention of the usual rules, a violation of the law, or whatever? The fact that it may be a circumvention of this rule or a violation of that law is secondary, in my view, to what this committee may be interested in. The fact that a role was played at the political level by the ministerial level at all is arguably something on which the committee may want to reflect, as to whether it warrants a report to the House on confidence in that minister or ministers.

The Chair: Okay, thank you.

Mr. Walsh, I have one quick question, but it may not be an easy one.

You mentioned that the judicial inquiry does not have the authority to find guilt or innocence, and you mentioned that is the same for the House of Commons committee as well. The RCMP has been looking into this for 18 months or more. Of course, it does all its work behind closed doors and we've seen very little fruits of its efforts so far.

You also mentioned the public interest. The public interest is not prepared to wait another 18 months or several years before charges are laid and things come forward. You are saying that neither this committee nor the judicial inquiry has any authority to find guilt or innocence, yet the public wants action on this.

Have you any comment?

Mr. Rob Walsh: Yes, and...?

The Chair: How do we proceed?

Mr. Rob Walsh: That's a very difficult question, Mr. Williams, because I think part of the mandate to this committee or perhaps the government operations committee, and perhaps to every member of Parliament when he goes back to his riding, since the tabling of the Auditor General's report, is, as you say, to do something--this is not right; do something.

Well, we are a society of laws and systems and jurisdictions, and we don't just go out, everybody punching the same bag, to see who can get the biggest hit. I think this committee has to think about where it can play a role that adds to the process rather than causes more confusion. My view is that ministerial accountability is something.

Let me just add something else that may respond to your concerns, Mr. Chairman. It will take a while for the judicial inquiry to get up to full speed. Some of you may recall on earlier inquiries that while there is a commission counsel--Ms. Phinney referred to a commissioner having counsel, that this will be the case--it may well be that the judge running the commission of inquiry will receive applications from various parties for standing at the inquiry because they may fear that their interests are at risk in the course of the inquiry. If that judge grants standing to that party, that party may have counsel. Well, pretty soon you have a roomful of counsel, and every person who gets on the stand at the inquiry is looking at this roomful of lawyers, some or all of whom may have questions to ask of that witness following the lead questions of the commissioner's counsel--that is, a lot of cross-examination. That's enough to put the fear of God into anybody, not to mention the fear of lawyers.

So it may be that what this committee can offer is an opportunity for some of these same witnesses, with the protections that go with testimony to a parliamentary committee, to tell their side of the story early and without being met with a barrage of legalistic, lawyerly questions that are looking to cross every t and dot every i. It may be that there's a kind of public service provided by this committee that may look like it's a fact-finding search, but you're not pressing the points to see who did what to whom behind whose barn; what you're doing is saying, let's hear your story, let's hear your account. Some cases may be in camera because it's touchy and could look like it's delicate, but maybe that's what you can do. But your overall objective in terms of any eventual report may be one of focusing on ministerial responsibility.

Á (1100)

The Chair: Thank you, Mr. Walsh.

I'd just like to say to the committee that we are embarking on a serious issue and there's going to be a bit of homework involved here. For example, the law clerk's statement is going to be distributed to everybody so we can try to ensure that we move forward as a committee and fulfill the wishes of the public interest here.

Just before we finish, Mr. Jordan has given me notice that he would like to say something.

Mr. Jordan.

Hon. Joe Jordan: Mr. Chair, I realize we do have a 48-hour notice of motion, but I would seek the committee's consent, given the testimony of both witnesses this morning, that this committee strike a subcommittee for the purpose of developing a process to address the issues around witnesses and testimony, that the subcommittee be made up of one member of each party, and that it have all the powers of the committee except the power to report to the House.

The Chair: Okay, Mr. Jordan has moved a motion that requires that if we are to debate the motion, we waive the 48-hour rule of notice. Are we prepared to wave the notice of motion?

Some hon. members: Agreed.

The Chair: Do you want to read the motion, Mr. Jordan?

Hon. Joe Jordan: Sure. The motion is that this committee strike a subcommittee for the purpose of developing a process to address the issues around witnesses and testimony; that the subcommittee be made up of one member of each party and have all the powers of the full committee except the power to report to the House.

The Chair: Okay, you've heard the motion. Is there any debate on the motion?

(Motion agreed to)

The Chair: Thank you, ladies and gentlemen.

We did not hear from the law clerk in camera because of the time constraints. If we feel that's appropriate, we'll have some discussions with the law clerk at the steering committee, and we'll bring him back at a later date if that is appropriate.

Mr. Lastewka.

Ms. Beth Phinney: I'm sorry, what is Thursday's meeting time?

The Chair: Thursday's meeting time is four hours, as agreed to by the steering committee, from nine o'clock in the morning until one o'clock in the afternoon. The witnesses are the Treasury Board, the Department of Public Works, the Privy Council Office, and the Auditor General's office.

Mr. Lastewka.

Hon. Walt Lastewka: My request is, Mr. Chairman, because some of us are on the government operations committee, can we now revert, maybe next week, to our regular time slot and not try to have our meeting in conflict with the government operations committee? Members like Mr. Forseth, a few others, and I serve on both committees.

The Chair: I'll discuss that with the whips, Mr. Lastewka. The steering committee did suggest that we go to six hours a week, and that rather than three meetings of two hours, there would be one four-hour meeting.

Mr. Desrochers, a point?

Á (1105)

[Translation]

Mr. Odina Desrochers: Mr. Chairman, I fully understand members who have to sit on both committees, but remember what the Prime Minister said, Mr. Lastewka. He mandated the public accounts committee to move forward with this situation as quickly as possible. We have asked to meet three times. This may interfere with some people's schedules, but we have to get on with it. You have whips: make arrangements.

[English]

The Chair: Yes. As I mentioned, I understand that all members are busy. They sit on many committees. So I will discuss that point with the whips.

Thank you.

There being no further business, the meeting is adjourned.