Madam Speaker, I am pleased to have this second opportunity to speak to Bill C-11. I will remind hon. members that I spoke on this same bill in this House on Thursday, October 4, 2004. It will be interesting to look at the way the bill has evolved in keeping with the position of the Bloc Québécois and of members of all parties. On Thursday, October 4, 2004, when Bill C-11 was before the House prior to referral to committee, I said:
However, we will give this minority government the benefit of the doubt and see whether the Liberals will listen to us at committee and be open to making a few amendments, as far as the legislative process allows.
Subsequent to that wish, 47 amendments were proposed. There were problems, however, and I will quote myself again on that:
If the Liberals really want to make this a credible position; if they really want to honour part of the promise in their 1993 red book to restore confidence in the public service, elected officials and the government; then they must establish an independent position of commissioner with this bill. We said this about Bill C-25 and we say it again, and so do the Conservatives.
In another part of that same speech, I made reference to clause 24(1) of the bill:
24.(1) The President of the Public Service Commission may refuse to deal with a disclosure if he or she is of the opinion that:
(a) the public servant has failed to exhaust other procedures otherwise reasonably available;
That was the second problem we pointed out in 2004. I ended my speech as follows:
We hope that the Liberals will act in good faith and with an open mind.
Following that speech, there were eight months of discussions in committee. Many witnesses were heard, and 47 amendments have been presented today with a view to improving Bill C-11, to making it better.
A brief aside here, if I may, to mention the contribution made by someone who worked with me throughout the entire committee process and who is no longer here, because he was an intern. I wish to comment on the excellence of the program, and also of the intern in question. Jeff Bell, of British Columbia, was with me in committee for five of those eight months, for which I was very grateful.
We heard a number of very key witnesses, including Mr. Edward Keyserlingk, who gave us his comments on the actual situation. He was the public service integrity officer and he asked that this Treasury Board policy become law, so that the integrity commissioner would have all the necessary tools to do his job properly.
We heard many things regarding Bill C-11, but I think this legislation can be defined in three very specific points. Usually, when I begin a speech, I always remind people of the issue being discussed. We are debating Bill C-11, An Act to establish a procedure for the disclosure of wrongdoings in the public sector, including the protection of persons who disclose the wrongdoings. Let us summarize its content. The public servants who worked on it and who were with us throughout the process might find this summary somewhat simplistic. However, for the general public—those who are interested can read the whole bill—this legislation basically covers the three points that follow.
Bill C-11 provides for the appointment of an independent public service integrity commissioner. My friends from the Conservative Party said that it was thanks to them, to their ultimatum and to their good work, because they are good, strong and powerful. However, I managed to get them to recognize that this measure had been requested by everyone. Indeed, the Bloc Québécois and the NDP asked for it, as did all the witnesses heard, this since the beginning. There is unquestionably a degree of open-mindedness. First, the Liberals asked that this be put in the hands of the Public Service Commission. In response to the hon. member for Mississauga Centre, I will say that the main problem was that it was the minister who was tabling the report, while we want an independent officer of the House of Commons to do so.
Starting with Bill C-25, which was the forerunner to Bill C-11, between Bill C-11 in its first draft and Bill C-11 as it emerged following Committee review, the main victory for all witnesses who appeared before us in Committee, for the Bloc, the NDP and the Conservatives is that an independent commissioner will be appointed along the very same lines as the Auditor General, the Commissioner of Official Languages and the Commissioner of the Environment, with all the credibility and the recognition given to independent officers of the House of Commons. They will independently—however they wish, subject to the regulations governing them—table reports directly in the House of Commons. This is a great victory for civil servants, for public service employees who will be able to report any wrongdoing to a person they trust.
Secondly, this provides a statutory and formal framework to a civil servant who wishes to disclose a wrongdoing. What is a wrongdoing? That is an interesting question the committee discussed at length. The definition can be found in clause 8 of Bill C-11. I will read some excerpts from it.
This Act applies in respect of the following wrongdoings in or relating to the public sector:
(a)) a contravention of any Act of Parliament or of the legislature of a province, or of any regulations made under any such Act;
(b)) a misuse of public funds or a public asset;
(c) a gross mismanagement in the public sector;
(d)) an act or omission that creates a substantial and specific danger to the life, health or safety of persons, or to the environment, [other than a danger that is inherent in the performance of the duties or functions of a public servant];
The last part was subsequently added, account being taken of military personnel or RCMP officers. Their work can occasionally put their lives in danger.
(e)) a serious breach of a code of conduct established under section 5 or 6;
(f)) the taking of a reprisal against a public servant;
[(g)) knowingly directing or counselling a person to commit one of the wrongdoings set out in paragraphs above.]
The concept of wrongdoing has been defined well. As the Conservatives have pointed out—mind you, I do not want to engage in sensationalism when it comes to Bill C-11—there could be cases of the abusive use of public funds or serious mismanagement. People at the Royal Canadian Mint could have used and benefited from Bill C-11 to disclose this type of problem. The sponsorship scandal and the gun registry scandal could have been avoided if Bill C-11 had been in place.
A third point was made. First, there will be an independent commissioner. Second, wrongdoing was defined and anyone witnessing a wrongdoing now has the legal ability to disclose the situation. Third, and the last main point in my opinion, is that there will be protection from reprisal.
My colleague from Terrebonne—Blainville discussed this earlier, as did my colleague from Abitibi—Témiscamingue. What happens to victims of reprisals? This also sparked lengthy discussions in committee. These questions come out in clauses 19, 20 and so on, under “Protection of persons making disclosures” in Bill C-11. Clause 19 states:
No person shall take any reprisal against a public servant.
It is very easy to write that into a bill, but if ever any reprisals are taken, what will happen? What can be defined as reprisal measures? The bill states:
If a public servant realizes 60 days after the date on which they knew, or in the Board’s opinion ought to have known, that the reprisal was taken, then they can make a complaint.
A person discloses a wrongdoing, waits for the entire process to be settled, is transferred laterally or protected because that is the law. They resume their duties. A month or two later, they realize they are a victim of reprisal, whether psychological or otherwise. They can make a complaint to the Board. More than that, the complaint can be presented after the same deadline mentioned in subsection 3, if the Board finds it appropriate to do so under the circumstances.
If a long time has elapsed, six months for instance, and it feels it is appropriate, the board may hear and make a determination on a complaint by a public servant who feels that a reprisal was taken against him or her.
On receipt of a complaint, the Board may assist the parties to the complaint to settle the complaint. The Board must hear and determine the complaint if it decides not to so assist or the complaint is not settled within a period considered by the Board to be reasonable in the circumstances.
What may be considered as a reprisal is also defined.
If the Board determines that the complainant has been subject to a reprisal taken in contravention of section 19, the Board may, by order, require the employer or the appropriate chief executive, or any person acting on behalf of the employer or appropriate chief executive, to take all necessary measures to
(a) permit the complainant to return to his or her duties;
(b) reinstate the complainant or pay damages to the complainant in lieu of reinstatement if, in the Board's opinion, the relationship of trust between the parties cannot be restored;
(c) pay to the complainant compensation in an amount not greater than the amount that, in the Board’s opinion, is equivalent to the remuneration that would, but for the reprisal, have been paid to the complainant;
(d) rescind any measure or action, including any disciplinary action, and pay compensation to the complainant in an amount not greater than—
(e) pay to the complainant an amount equal to any expenses and any other financial losses incurred by the complainant as a direct result of the reprisal.
The committee members and myself sincerely believe that we have covered all bases to ensure that a formal framework is clearly defined so as to prevent frivolous or vexatious complaints. Think of pressure tactics for instance. We have also covered all bases to ensure that any reprisal is minimal and as difficult as possible to take against a person who has disclosed a wrongdoing.
We are not infallible however. My hon. colleague from the Conservative Party mentioned it earlier, and we want to reiterate, even though it is already in there, that this bill must be reviewed five years after coming into force. If we realize that there have been a million disclosures because the definitions are too broad or because everyone is dishonest—which I doubt very much—then we can look at what could be improved and tighten the rules. If reprisals were taken against every person who disclosed a wrongdoing, we might conclude that we misunderstood everything we heard during committee hearings.
After several months of discussions, of hearing witnesses and of negotiations, members of the Standing Committee on Governmental Operations and Estimates agreed that the three main points are the independent officer, the legislative framework to file a complaint and measures against reprisal. The members believe that these points were serious enough that we could give what I maintain is unanimous support in this House to Bill C-11, as introduced to us at this time. Of course, this support will be conditional to us being able to review this bill in five years to correct the errors that, unfortunately, we did not see while studying it.
We thus created the position of integrity commissioner. In the very unlikelihood that a wrongdoing would be committed in the Office of the Integrity Commissioner, should the Office of the Integrity Commissioner do wrongful things with public funds, a person could file a complaint before the Office of the Auditor General. Thus we believe we have established a framework for the disclosure of wrongdoings in the government.
We also changed some terms and references to give a more positive character to the bill. Indeed we now talk of “disclosure” instead of “whistleblowing” and “person who discloses” ”instead of “whistleblower”. Thanks to the concerted work of Conservative and Bloc Québécois members as well as certain witnesses heard, the RCMP is included in Bill C-11 whereas it was excluded previously. After five years, we will verify whether this is a good thing. However, not all RCMP services are included.
For the Bloc Québécois, this was a very enlightening committee because we worked not only for strictly political reasons, but also to provide a more adequate workplace for public service officers and public servants.
I would not want the bill to cast a shadow over the work of public servants as a whole and I would not want people to think that public servants are all suspicious individuals. However, thanks to this bill, we will be able to keep an eye on the work of each and every manager involved in public finances. While this is definitely not the bill's underlying objective or philosophy, unfortunately, there are still people in positions of authority who mismanage public funds. We saw it with the scandals that were mentioned earlier and that my Conservative friends are happy to remind us about. Some managers misuse public funds. The employees working under these public servants had every reason to fear reprisals for disclosing these wrongdoings.
The committee heard some sad stories. For example, three public servants at the department of Health were fired. These three scientists, who have doctorate degrees, told us that they were fired or shelved because they blew the whistle on bovine somatotropin, while their managers were adamant that they should not talk about this issue. These people are currently appealing to the civil courts, in an attempt to reintegrate their positions. The public servant who denounced the sponsorship scandal told us that he was really lucky to know someone who reintegrated him into another department, otherwise he would have been out of work. We saw how difficult it is to speak out and what the impact could be on the personal lives of these individuals, and on those of their families and friends when, after six months or a year, they would make the decision to disclose a wrongdoing. They had to put up with the reproving look of their supervisor, who would ostracize them because of their actions.
I remember another former public servant who was posted in Hong Kong. He mentioned how computer systems were open windows for those who were prepared to falsify passports for people from Asia who wanted to come to Canada. He too was fired for purportedly falsely alerting authorities when in fact he was justified in making these disclosures.
So we saw the flip side of the coin: how yesterday and today, before Bill C-11 comes into effect, those who witnessed such wrongdoing were forced to painfully disclose it. Even if only 1% or 2% of all public servants are guilty of mismanagement, the employees working under such managers must be given an official and clear framework. In my opinion, there will not be a mountain of complaints. First, the legislation will be tested when it comes into effect. Nevertheless, there will not be many complaints from the public service. Perhaps some of these complaints will be not be relevant because they can be resolved internally. The other complaints will be heard and, initially, no doubt, there will be some leading cases.
Since the government has heard that an independent commissioner is needed and since it amended the bill to reflect what stakeholders asked for in committee, I am hopeful. First, I believe that it was essential to look good after what happened. Second, I am quite hopeful that any public servants who are listening or who will find out about this bill will use it wisely.
In closing, I want to ask the government, which spends a great deal on communication and advertising, to invest a little less—but still invest—in order to inform the public service about Bill C-11 when it does come into effect. I am no expert in BBM ratings and polls, but I do not think that the entire public service is currently listening, at 1:30 p.m., to the debates in the House of Commons. First, I think that they are working. Second, I do not think that they will read Hansard tomorrow morning to see if we discussed a bill that might have a direct impact on them.
I am hopeful that the government will at least promote this legislation so that the public servants know what tools are at their disposal in order to disclose wrongdoing.
