Bill C-25 (Historical)
Public Servants Disclosure Protection Act
An Act to establish a procedure for the disclosure of wrongdoings in the public sector, including the protection of persons who disclose the wrongdoings
This bill was last introduced in the 37th Parliament, 3rd Session, which ended in May 2004.
Denis Coderre Liberal
Referral to Committee Before Second Reading
(This bill did not become law.)
December 13th, 2011 / 4:30 p.m.
The Chair Pat Martin
Thank you, Peter.
Thank you, Mr. Dion.
The next round is the NDP's round, but I have asked to share a couple of minutes, as the chair's prerogative, because I will confess a particular interest in this matter. In fact, over ten years ago my dear friend, the late Reg Alcock, and I worked on this very committee in trying to form Bill C-25.
My concern now, Mr. Dion, is that I was on the committee when Christiane Ouimet sat where you're sitting now, and she sounded pretty good too. We all approved her with some enthusiasm. In actual fact, we failed whistle-blowers profoundly. I mean, as much courage as it takes to be a whistle-blower...we promised them a safe place and we failed them, and it infuriates me, having been dedicated to this issue for as long as I have.
I have a letter here that was written to me by a former integrity commissioner, Mr. Keyserlingk. He says, “...I am frankly appalled about the government appointment yesterday...”--this was a year ago--“of Mario Dion as interim PSIC...”. Nothing to denigrate the qualifications of Monsieur Dion, he says, but he believes that once again we have appointed a senior manager, a deputy minister from the public service, and in a six-page letter he goes on to explain why that is a disastrous idea.
The only empirical evidence and the only actual experience we have of appointing a senior public servant to this position has been a catastrophic failure, and may have poisoned the well for a generation of public servants. Because who would come forward now? Let's say you're lying awake at night as a public servant who has some knowledge of some wrongdoing and asking, “Should I risk my family's future and my income by coming forward and telling my story, or should I just zip up, shut up, and stay quiet?” They look at what happened to those 220 or 230 people who did come forward--they got screwed--and if I were a public servant, my conclusion would be “I think I'd better just shut up, keep doing my job, and let this wrongdoing continue”.
It may take a generation before public servants can actually trust your office.
I know that's more of a comment than a question, but I am really, really concerned that we're ignoring the advice of a former integrity commissioner, even though I have no problem with your qualifications or your integrity as a person, and I'm sure you were an excellent public servant. Maybe it's just a serious mistake to appoint a senior public servant. I mean, those are your friends who you have to rat out. If somebody comes to you and says he knows a deputy minister over there in the Department of Justice who is taking the car home on weekends, that's the guy you used to work with.
May 13th, 2004 / 5 p.m.
Paul Szabo Mississauga South, ON
Mr. Speaker, I have listened to the debate today and have attended the public accounts committee on a couple of occasions to listen to testimony and to observe the committee in discharging its responsibilities on this important matter. I did that because, having been on the government operations and estimates committee, I was intimately involved in the George Radwanski case, the former privacy commissioner, who subsequently was found by this House to be in contempt of Parliament. There is no doubt that there were two different approaches as to how to proceed on these matters.
I want to add my contribution to this debate from a perspective of my background and the fact that I am also an elected person and feel very badly whenever there is a problem in terms of the mismanagement, misuse or waste of taxpayer money.
I am a chartered accountant by profession and I spent a number of years with Price Waterhouse in the auditing business. I was also in corporate life for some 23 years and for about 5 or 6 of those years I had responsibility for the internal audit function. I am fairly familiar with the scope of the work that is done within those functions.
I simply want to bring to the attention of the House that even within the chartered accounting profession, some years ago the audit opinion, which auditors give, was changed substantively from when I first wrote my exams and its history of what the audit opinion said. The substance of the change has to do with the fact that the financial statements are the responsibility, the property and the representation of management, and that the auditors do not take responsibility for anything they may not have found, such as fraud, mismanagement, or whatever. The auditors' job is not to detect, but should they detect, they must report in a fashion that would result in corrective action.
However the onus and the responsibility to detect is not the auditors. They are not opining on the statements on anything other than what has come to their attention. It really is the management. With regard to the sponsorship program, I think management is at the centre of the issue. How were the funds managed?
I can also comment on this whole matter from the standpoint that in September 2000 I was appointed the parliamentary secretary to the then public works minister, Alfonso Gagliano, and subsequently, his successor, the member for Glengarry—Prescott—Russell, and I carried on until January 2003 with the current finance minister who was then in that portfolio.
I want to comment on the actions that were taken by the current finance minister because I think members and the public should know that the government did not wait until there was an Auditor General's report to lay out matters. There was an internal audit that came forward in the year 2000. In fact, the internal audit report was published and available on the government website. All the findings of the internal audit, in which they identified management control problems and other aspects that had to be addressed, were addressed.
The current finance minister, who was then the minister of Public Works and Government Services, took charge. First, he froze the program until he could get a handle on the situation. He then came to the House and said that there were three particular items. He made the representation to the House that if there were deficiencies in the management controls surrounding these matters they would be corrected. As a consequence of the internal audit and the work that was done, changes were made starting right back in 2000.
The then public works minister said that if there were any allegations of wrongdoing they would be referred to the proper authorities for investigation, and indeed there were. I was parliamentary secretary at the time and I think there were seven referrals to the RCMP for investigation. Charges have been laid pursuant to those investigations that started back then when that minister made the representations and the commitment to the House.
He finally said that if there were any overpayments or improper payments for work not done, that we would take every possible step to recover those funds. This is responsible management.
I always tend, as an auditor and as a chartered accountant, to assess management, not only from the standpoint of how it handles matters that are going well, but how it responds when things are not going well. When there are problems, does management take remedial actions? Does it take charge of the situation? Does it put into place the kinds of action plans that are necessary to ensure that we mitigate any damage that is being done, and that it puts into place the controls that are necessary so that it would preclude the possibility from this kind of thing from ever happening again.
That is responsible management and I believe that the assessment of the House, of the public accounts committee and, I am sure, of the judicial inquiry will be that the government took all appropriate and necessary steps to address this in a sound, professional and good management practices way.
Yes, charges have been laid against two individuals. The public and the House are aware of the details as they have been widely published. Does anyone remember Bre-X, Enron and even Nortel? We can all think of the list of companies, corporations, organizations and NGOs where there have been problems.
We are talking about human beings and in some cases people have taken advantage of the opportunities provided within their responsibilities to do wrong. It is going to happen and we understand that.
However if we were to implement a program and put in controls that would give a 100% guarantee that something like what has happened with regard to sponsorship could never happen, the program would be so inefficient government would be spending $10 to save $1. It makes no sense. It is like asking people to check everything at the border to ensure that not one handgun crosses that border because we know so many handguns come across.
If we were to introduce programs and measures to do the kind of checking that would be necessary to stop every single handgun from coming into Canada, we would shut down the economies of two countries. Seventy per cent of our export business goes across that border.
If we were going to stop that commerce velocity to achieve another objective, we would find that the cost would be far more. As an auditor, as an accountant, as a parliamentarian and as a human being with some common sense, I would want reasonable measures put in place to properly discharge our responsibilities, understanding that there would be no 100% guarantee. There is never a 100% guarantee.
I just want to remind the House of some of the measures that were in the last report of the Auditor General. First, to establish an independent commission of inquiry. The government has done that.
Second, to appoint a special counsel for financial recovery, and, where it is possible and with all the tools to recover any moneys that were wrongfully disbursed to anyone, to recover those. The government has done that.
Third, to introduce whistleblower legislation by March 31, 2004. The bill has been introduced and it is Bill C-25. I happen to be the chair of the government operations and estimates committee presently hearing witnesses on this bill. It is a very good start.
Further, the government is looking at measures to strengthen the audit committees for crown corporations and the possible extension of the Access to Information Act to crown corporations. That is in process.
There is also the initiation of a review on changes to the governance of crown corporations; the initiation of changes to the FAA, and on the accountabilities of ministers and public servants. Another measure was to allow the public accounts committee to begin its work early, which has been done.
My professional assessment as a CA, my assessment as a member of Parliament who has watched this closely and has been involved intimately in similar matters, is that the government has taken all appropriate steps to mitigate the problem and to ensure that management controls are put in place to deal with it properly, that allocations are going to be properly dealt with and finally, financial recoveries will take place.
Oral Question Period
April 30th, 2004 / 11:30 a.m.
Scott Reid Lanark—Carleton, ON
Mr. Speaker, last Tuesday in question period I pointed out that Bill C-25 contained no provisions whatever for disciplining persons who engaged in reprisals against whistleblowers. The minister responded by telling me to take a look at clause 9.
Clause 9 of Bill C-25 contains provisions for disciplinary action, including termination of employment, but this is for whistleblowers themselves who make disclosures to the public service integrity commissioner without getting prior departmental approval.
Would Bill C-25 not have mandated the minister to fire Allan Cutler for not asking Chuck Guité's permission to go public?
Oral Question Period
April 30th, 2004 / 11:30 a.m.
Scott Reid Lanark—Carleton, ON
Mr. Speaker, in committee yesterday a public service integrity officer, Edward Keyserlingk, trashed the whistleblower bill. Among other things, he observed that Bill C-25 was missing an independent investigative body, had no mechanism for reporting to Parliament, and provided no protection against reprisal for whistleblowers.
I ask the minister, will he amend the bill to add these provisions which Professor Keyserlingk has highlighted?
Workplace Psychological Harassment Prevention Act
Private Members' Business
April 28th, 2004 / 6:55 p.m.
Paul Forseth New Westminster—Coquitlam—Burnaby, BC
Mr. Speaker, Bill C-451 is an act to prevent psychological harassment in the workplace and to amend the Canada Labour Code. Bill C-451 addresses something very real. Harassment in the workplace is an aspect of wrongdoing in the workplace and/or an aspect of violence in the workplace or its precursor.
The sentiments of the bill are correct. That is why there has been a public service policy for over 20 years that guides the conduct of public employees about harassment between workers, or within a hierarchy, or in a supervisory relationship. The problem comes from assessing whether in the public service the current policies are working or if a formal regime of reporting, examination and remediation is necessary as a distinct system beyond and separate from the range of normal activity of a supervisor and employee relationship.
It is the normal duty of management to create and maintain a safe, reasonable work environment, not only physically but also in the psychological sense. The workplace should not be toxic or dangerous in real terms of physical harm or in a psychological sense. This is the business of personnel administration and the wise management of human resources, but the employer and the employee must both have obligations.
Currently, the situation is that the department deputy head or deputy minister has the main responsibility to deal with the matter of harassment in the workplace. The deputy head may call upon the Public Service Commission to investigate or suggest solutions, or the deputy head may go outside to psychological specialists as contractors who are completely independent. These reports then come back to the deputy head and it is management's responsibility for remediation.
The present private member's bill is within the spirit of the present government policy, but it also sets out a formal regime and makes the Public Service Commission the recipient of reports, the investigator and the one to direct remediation. That particular part may be a mistake and I did try to speak to the Public Service Commission today about that.
However, I like other aspects of the bill that spell out what harassment is and the penalties involved if it is not dealt with. The private member's bill raises the issue of the importance of the subject. The problem around harassment in the workplace, which is most often between co-workers, is likely much more common than the matter that we are dealing with in Bill C-25, which is a regime for reporting an administrative wrongdoing. We are developing a proper regime for reporting wrongdoing. The government's Bill C-25 is currently before the House.
That is where there may be a synergy here. This private member's bill is not going pass, we know that, but the topic is correct. Perhaps what could be done is to expand the definition of wrongdoing within Bill C-25.
Clause 8 of Bill C-25 defines wrongdoing. Of course it talks about the misuse of public funds or a public asset, but it also talks about an act or omission that creates a substantial and specific danger to the life, health or safety of persons or to the environment, or a serious breach of a code of conduct established under clauses 5 and 6 of the bill and the taking of a reprisal. That really involves what we are talking about, which is harassment in the workplace.
Clause 8(d) is of special interest, where the health is mentioned and where harassment affects both mental and physical health. It may now already be covered by Bill C-25. Perhaps the definition in this clause could include an expanded definition taken from Bill C-451 so that there is a broader aspect of wrongdoing to be dealt with appropriately within the formal regime of reporting, investigating, remediating and providing a fair process and appropriate confidentiality that is envisioned in Bill C-25.
Bill C-451 on page 2 defines for its purposes psychological harassment. I want to briefly put that into the record. It states:
--any vexatious behaviour in the form of hostile, inappropriate and unwanted conduct, verbal comments, actions or gestures that affects an employee’s dignity or psychological or physical integrity and that results in a harmful workplace for the employee; and
(b) any abuse of authority, including intimidation, threats--
It defines that even a single incident of such behaviour that has a lasting and harmful effect on an employee also constitutes psychological harassment.
There is an extensive definition and I am sure there has been some research on that. It may also parallel some legislation in Quebec.
I could envision that elements of this definition perhaps could be included in Bill C-25 where it talks in the definition in clause 8(d) about an act or omission that creates a substantial or specific danger to the life, health or safety of persons or to the environment; or, in clause 8(e) where it talks about the code of conduct which in the public service we already have this code of conduct; or clause 8(f), taking reprisal against a public servant.
There is a parallel here. There is an opportunity for the bill's sponsor to do the necessary background research and prepare a convincing brief. She could bring it to the government operations and estimates committee to see if the members now seized with that topic can be convinced to expand Bill C-25 to give effect to the spirit of Bill C-451.
The government had a policy about reporting wrongdoing which I called a memo policy out of the Treasury Board. It really did not work very well because few public employees had confidence in it. The government brought forward stand-alone legislation to create a defined regime of reporting wrongdoing called Bill C-25. Similarly, we have a 20 year old policy now on harassment in the workplace which is in effect as a memo policy. The member, through her private member's bill, is saying that this harassment policy is not good enough and it also needs a formal regime.
I do not think we should have two separate formal regimes, one for administrative wrongdoing and another for harassment of psychological wrongdoing. It could even be argued that Bill C-25 fully accommodates already the intents of private member's Bill C-451. I say to bring the two together. Maybe that is the way to go, and have the government examine the additions within Bill C-451 and incorporate them into Bill C-25.
There is a precedent for this. I had this done with my own private member's bill relating to the Bankruptcy Act. My private member's bill went through all of the barriers and it was made a votable bill. It amended the discharged list section of the Bankruptcy Act. Later on the government brought in a comprehensive system-wide bill to revamp the whole thick piece of legislation which was a much broader, comprehensive piece of legislation.
I immediately checked the government bill in the specific part that related to my private member's bill. My private member's bill, because it had been thoroughly researched and discussed in that narrow area, was much better than the government version of that particular section. I began to negotiate with the minister. The minister of the day agreed and incorporated my private member's bill as the government provision. I withdrew my bill and went to committee and moved the motion as if it were a government motion. Therefore, the law of the land today in the Bankruptcy Act is my private member's bill as part of the government bill. Synergy can happen where we bring things together.
Perhaps there is something here as well. The committee has been charged with looking at Bill C-25 before second reading. Therefore, it is certainly within the latitude and purview of the government operations and estimates committee to make those kinds of adjustments if it sees fit.
Certainly psychological harassment in the workplace is wrong. Unfortunately, it is all too common, perhaps most often between workers rather than from management in a supervised relationship. Harassment is wrongdoing. There may be an opportunity here to bring matters together.
Everyone seems to agree on the legitimacy of the subject. It is indeed part of the public service policy now. If Bill C-25 can be expanded in a way to actually have the spirit of Bill C-451 put into the law, then I am certainly willing to explore it and give it a most sympathetic ear if it comes to committee.
It is up to the member to do the homework and try to have Bill C-25 meet as much of what is in the spirit of Bill C-451. The member should make the brief, do the homework and come to committee. As the vice-chair of the government operations and estimates committee, I will encourage the member to do so. I promise that the member will have a sympathetic ear from our side.
Oral Question Period
April 27th, 2004 / 2:55 p.m.
Scott Reid Lanark—Carleton, ON
Mr. Speaker, prominent whistleblower advocate Ken Rubin said yesterday that the whistleblower legislation, Bill C-25, was a cruel and contemptuous hoax that would accelerate distrust and intimidation, and would end up hurting public employees turned whistleblowers who were doing their jobs.
One reason the bill is so bad is that clause 15 says that “No person shall take any reprisal against a public servant”; however, the bill imposes no penalties whatsoever for violations of this provision.
Will the minister commit today to imposing penalties for the violation of those rights?
Oral Question Period
April 27th, 2004 / 2:50 p.m.
Scott Reid Lanark—Carleton, ON
Mr. Speaker, today Ralph Heintzman, the government's top official on the whistleblower file, is reported as saying that Bill C-25 is not a whistleblower protection act at all. He says it is actually an internal disclosure bill designed to impose penalties on whistleblowers in order to prevent departmental reputations from being publicly tarnished. Moreover, Mr. Heintzman feels, as Martha Stewart would put it, that “that's a good thing”.
My question is does the President of the Privy Council agree, and can he explain how the act of reporting confidentially to the public sector Integrity Commissioner could publicly tarnish any reputations?
Public Servants Disclosure Protection Act
April 20th, 2004 / 3 p.m.
It being 3:03 p.m., the House will now proceed to the taking of the deferred recorded division on the referral to committee before second reading of Bill C-25.
Call in the members.
(The House divided on the motion, which was agreed to on the following division:)
Business of the House
April 20th, 2004 / 10:10 a.m.
Mauril Bélanger Deputy Leader of the Government in the House of Commons
Mr. Speaker, discussions have taken place between all the parties and I believe that if you were to seek it you would find consent for the following motion:
That the recorded divisions scheduled today at 3:00 p.m. be taken in the following order: first, referral to committee before second reading of Bill C-25; second, the amendment to second reading of Bill C-30, and third, second reading of Bill C-246.
Public Servants Disclosure Protection Act
April 2nd, 2004 / 12:10 p.m.
Mario Laframboise Argenteuil—Papineau—Mirabel, QC
Mr. Speaker, I am pleased to speak on Bill C-25, the Public Servants Disclosure Protection Act, which has been introduced by the President of the Queen's Privy Council for Canada.
This bill has been made necessary because of the sponsorship scandal and the desire of the public service to say out loud what people have been thinking to themselves for a long time. The problem is that there are serious situations in the public service. I will give examples of public servants who have even lost their jobs because they dared to blow the whistle. That is why we have Bill C-25 before us today.
The incredible thing is that, despite the government's willingness to introduce this bill in the House, if an election is called between now and the end of April, it will, in fact, be impossible for Parliament to pass this bill.
That could mean that, all during the election campaign, if public servants have anything to say about the government's behaviour, they will not be able to make disclosures, or, if they do, they will have no protection under this legislation because it will not have been passed.
Sometimes even we, as members of Parliament, are poor judges. We want to do the right thing and support the public service. The government, probably for good reasons as well, wanted to introduce this bill. Still, I will take the few minutes available to me to speak about the comments made by the Public Service Alliance, the union that fights for government employees. They have some serious recommendations to make about this bill.
One of the major weaknesses seen by the Public Service Alliance is that the public service integrity commissioner proposed in the bill does not report directly to Parliament but to the office of a minister, which will seriously affect the independence of the office and its credibility within the public service.
If ever there were a desire to blow the whistle on government actions, we would have expected the commissioner responsible for hearing complaints to report directly to Parliament. We do, in fact—particularly the opposition members—offer a degree of neutrality, a guarantee for the public servants who make a complaint to the commissioner who, in turn reports to Parliament. It would have been the guarantee of a degree of neutrality in the analysis and examination of a case.
It has been decided by the government that the commissioner will report to a minister, not Parliament. It is already not easy for public servants to make disclosures, but it is even harder if the commissioner receiving the complaints reports to a minister. That minister is, of course, a colleague of other ministers, against whose department the complaint may be directed. This is totally abnormal and something seen nowhere else but here.
The Liberal Party has been trying to demonstrate its transparency for weeks. It has an opportunity to table a bill to help public servants make disclosures, but the commissioner receiving those disclosures will report to a minister's office. This is exactly like the ethics commissioner reporting to the Prime Minister as he did in the past.
We have spoken out about that connection between the ethics commissioner and the PM, but the integrity commissioner who will be receiving complaints from public servants will be reporting to a minister. This is exactly the same thing. What goes around comes around, where the Liberals are concerned.
Once again, I am reflecting the comments made by the Public Service Alliance concerning the fact that the commissioner has only a power of recommendation after carrying out an investigation. The commissioner cannot, for example, order the person making the disclosure to be reinstated in his position or order certain interim measures to protect the whistleblower in certain cases. For example, a person might be transferred to another department for the duration of the investigation. Certain steps could be taken.
So we have a commissioner who can receive a complaint but has no power to reinstate the person in his position . I will look at the case of Alain Tremblay, which is no secret, as he has held press conferences and been interviewed by the media here in the Outaouais.
He is a public servant from the Aylmer sector of the City of Gatineau who had disclosed the wrongdoing of one of his superiors at the Royal Canadian Mint. The individual was living in Quebec but paying taxes in Ontario, where he had a second residence. He had a scheme going whereby he paid rent to one of his employees in Ontario to avoid paying taxes in Quebec.
Consequently, Mr. Tremblay blew the whistle on his supervisor and ended up losing his job over it. That is the reality. Alain Tremblay lost his job and today he is doing everything he can to get re-hired, saying, “Listen, it is not right that I should lose my job”.
With respect to job loss, the government has quite a convoluted way of doing things. Mr. Tremblay was told that, because of cutbacks in the Department of Human Resources Development Canada, HRDC, where he worked, his services would no longer be required.
The Government of Canada has increased public service spending by 39% in the past five years. It has increased the number of employees and Mr. Tremblay, who was a whistleblower, was told there had been cuts in his department. It is not easy for Mr. Tremblay, nor is it easy for the member for Hull—Aylmer, who supports Mr. Tremblay and is calling for an investigation.
The problem in this case is easy to understand. The federal government decided to use strategy and told a public service whistleblower, “Your position has been eliminated because of budget cuts. You cannot stay here”.
In 2002, Mr. Tremblay had received a note from his supervisor saying that he had continued to excel professionally and personally that year. So, he was kept on in 2003. There were notes describing his excellent performance in his file. He is a good employee, but he disclosed a wrongdoing. He was laid off because his position had been abolished and he will never be re-hired. That is the difficulty for all public servants.
Again, public servants in the Outaouais and Ottawa-Gatineau region vote Liberal in election after election. I am 46 years old and I cannot remember a time when public servants in the Outaouais did not vote for the Liberal Party. What does that party turn around and do? It blames them whenever there are problems because politicians mismanaged public funds and they do not know where the money went.
The Liberal politicians blame public servants. And in an attempt to encourage whistleblowing, they tell public servants who voted for them in the Outaouais and Ottawa-Gatineau region for years on end, “Listen, we will introduce legislation to ensure you can disclose wrongdoing”.
Except that the commissioner responsible for handling the complaints will answer to a department, just as the ethics counsellor answered to the Prime Minister's Office. That is the problem for public servants, who cannot believe this and are extremely skeptical. Furthermore, there is no retroactivity clause either. This means that there is no protection in this legislation for whistleblowers making disclosures relating to the past, such as before the sponsorship scandal.
The government should have included a retroactivity clause. But no, this legislation will only apply to those who will report wrongdoings once it has come into effect. Of course, when the time comes to hear public servants and protect them, statements will have been made and the Liberal Party will probably have tried to sweep the whole sponsorship scandal under the carpet.
While we are waiting for the next election, this sends the following message to public servants: “Do not talk to anyone, otherwise you will suffer the fate of Alain Tremblay, you will lose your job. They will manage to put you in a position that will be terminated. They will try to transfer you to another department that will disappear, because they will have decided to make cuts precisely in that sector of the department where you work, to be absolutely sure that you can never report wrongdoings again”.
The Bloc Quebecois will never accept this and it will always fight for the integrity of public servants, of men and women who work hard to earn a living.