Bill C-290

Public Sector Integrity Act

An Act to amend the Public Servants Disclosure Protection Act and to make a consequential amendment to the Conflict of Interest Act

This enactment amends the Public Servants Disclosure Protection Act to, among other things, expand the application of the Act to additional categories of public servants, permit that a protected disclosure be made to certain persons, extend the period during which a reprisal complaint may be filed and add a duty to provide support to public servants.
It also makes a consequential amendment to the Conflict of Interest Act .

Public Sector Integrity Act

[Jean-Denis Garon, Bloc, Mirabel, QC]

moved that Bill C‑290, An Act to amend the Public Servants Disclosure Protection Act, be read the second time and referred to a committee.

Mr. Speaker, I thank my colleagues for being here today.

There is nothing more important for a government than an ethical, competent and responsible public service, and we must value the work of our public servants. Public servants are in the best position to note irregularities in government, in its management of public monies and use of Crown assets, as people here like to call them. Sometimes, out of a sense of responsibility, these officials become whistle-blowers by disclosing wrongdoing. It is an extremely important role. For that reason, we must protect them. We also need to create and enhance mechanisms that these officials can use to disclose wrongdoing.

Currently we have the Public Servants Disclosure Protection Act. This legislation came about as a result of the sponsorship scandal. We all know that the federal sponsorship program was highly problematic from 1997 to 2001 and caused a major scandal. It was created in the aftermath of the 1995 referendum, when the federal government wanted to have more visibility in Quebec and decided to hang Canadian flags in just about every cultural and social space in Quebec.

Unfortunately, in addition to being fundamentally bad, this program ended up being used as a quid pro quo mechanism. Communications firms with close ties to the Liberal Party would receive huge contracts, and the money would directly or indirectly wind up back in the Liberal Party of Canada's coffers. This undermined taxpayers' confidence in the government and public confidence in government operations.

The whole thing got out of control and naturally undermined the very democratic process that ensures that we are elected to the House and that people trust the process. We are not talking about a scandal involving small sums of money; we are talking about the proven waste of a quarter of a billion dollars of public funds, which led to the Gomery commission.

As members will recall, this resulted in Paul Martin's government being severely punished. It was re-elected with a minority government in 2004. Ultimately, Canadians and Quebeckers decided to toss out the Liberals when they voted in many Bloc Québécois members and gave the Harper government a minority mandate. That government took swift action to protect whistle-blowers in the public service.

Members will recall that one of the reasons the public learned as much as it did about the extent of the sponsorship scandal was because of a whistle-blower nicknamed “MaChouette”. She spoke regularly with journalist Daniel Leblanc, who had to battle in court to protect her identity.

One of the Harper government's first pieces of legislation was the Federal Accountability Act, followed by the Public Servants Disclosure Protection Act, which came into force on April 15, 2007.

Obviously, the world has changed a lot since then, but this law has not changed and has not been improved, amended or corrected in 15 years. Now the time has come to do the right thing for our competent public servants and protect whistle-blowers.

The objective of Bill C‑290 is to protect public servants who disclose wrongdoing in the public service, and also to establish a process to investigate the wrongdoing. That is very important because we want wrongdoings to be disclosed and we want to put an end to them. We want to have processes to help us do that. The ultimate goal is better management of government resources.

The current act covers many things. It was an ambitious law at the time, and it had good intentions. It described wrongdoing as a contravention of any act of Parliament or of the legislature of a province, or of any regulations, by persons in authority; a misuse of public funds or a public asset; mismanagement in the public sector; 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 regular duties of a public servant, of course, because we want them to be able to do their job.

The act covers serious breaches of a code of conduct stemming from the events I just mentioned and, of course, wilfully and knowingly directing or counselling a person to commit any of the wrongdoings I just listed.

It is still a fairly ambitious law with built-in mechanisms. The act created a mechanism for the disclosure process. We want there to be a mechanism. We do not necessarily want whistle-blowers calling journalists in secret and passing confidential documents to them. We want there to be a process, a process that is supposed to protect anonymity and, more importantly, protect public servants from reprisals. The act created an independent institution, the Office of the Public Sector Integrity Commissioner of Canada, which can receive disclosures and investigate allegations and possible reprisals. Lastly, the Public Servants Disclosure Protection Tribunal was created.

If the act is so great, why did we introduce Bill C‑290?

Again, the principles of the act that has been in effect since 2007 are excellent, but the act has many flaws. They are small flaws, but when you add them all up, they make this legislation ineffective. We have seen it. Since this legislation was implemented, we can count the number of cases where disclosures have gone through the correct process. We can basically count them on two hands.

That is consistent with the findings of the International Bar Association, which ranks Canada at the bottom of the list when it comes to laws that protect public servants who disclose wrongdoing. Canada has one of the worst records in the world in this regard. I will spare my colleagues from having to listen to a list of the countries that rank above us because it is both embarrassing and shameful. When the International Bar Association assessed the Canadian legislation, Canada got a zero on 19 of the 20 assessment criteria. Do members know what criterion Canada did not get a zero on? Just having an act. That is the only criterion on which we did not get a zero. We are not starting from scratch, but we have a long way to go.

Other jurisdictions have led the way on this. The European Union, Australia and the United States have good systems, and we can follow in their footsteps. The point is, things have to change for the better. Taxpayers deserve better.

We do not have to start from scratch either. There was a committee study in 2017. I acknowledge my parliamentary colleagues who worked very hard on that report. They met 12 times, heard from 52 witnesses, received 12 briefs from experts, whistle-blowers and unions, people who know about this stuff, people on the ground. Challenges and shortcomings were identified, and 15 recommendations were issued.

I know that one of the people who made a significant contribution to drafting the recommendations passed away recently. That person was Michael Dagg, and I, along with a number of my colleagues, want to pay tribute to him.

What did we learn from the committee? The committee showed us that there is not enough protection for whistle-blowers in the public service and that public servants lack confidence in the process because of the way it works. They know that mechanisms exist, but since they do not have confidence in where the process will lead and they are afraid that it will end up being very harmful to them, what we end up with is an act that is not used and public servants who do not disclose wrongdoing.

Bill C‑290 addresses these shortcomings and, as I said, essentially seeks to correct the problems with the Public Servants Disclosure Protection Act.

What does this bill do? First, it broadens the definition of wrongdoing. The act covers serious cases of wrongdoing and illegal acts, but it does not cover cases of political interference in administrative decisions, even though it should. If a public servant discloses an incident of political interference, their complaint will simply be rejected. It cannot be processed or even considered by the public servants in the department who deal with complaints or by the commissioner.

However, we need to be able to get to the bottom of things. Under the current legislation, it is impossible to do that when wrongdoing is disclosed. This bill will help to remedy that.

In the current situation, turning to the people in charge of receiving complaints can be extremely formal, difficult and intimidating for a public servant. What is more, the commissioner who deals with these matters has a limited budget. He barely has the necessary resources, expertise, or knowledge of the departments. As a result, often the investigations go nowhere. It is possible to refer the case to the police, but, again, there needs to be an investigation first and that generally does not happen.

Bill C‑290 proposes to allow the auditor general to investigate such cases. Remember that at the time of the sponsorship scandal, it was the auditor general, Sheila Fraser, who helped expose the wrongdoing.

In addition, we want to protect more people. The act currently protects public servants, but it does not protect former public servants who may have witnessed wrongdoing over the years but did not decide to disclose it until later. Furthermore, the act does not protect contract or temporary employees, such as someone who works at CRA for a few months during tax season. These are the people who are most vulnerable in these circumstances, because their employment status is precarious. They can easily become victims of intimidation or reprisals.

At the same time, we need to rebuild trust with the public service. Under the current act, a complaint can be dismissed, even if the wrongdoing is well established, because the commissioner may find that the person reporting the wrongdoing had personal reasons for doing so.

We understand the seriousness of that. Often someone who denounces a wrongdoing did not witness it only once or twice. It was not a quick 15-minute incident on a Tuesday morning. It happens repeatedly for days, for years. It makes the workplace extremely challenging. It is normal for a whistle-blower to become bitter, frustrated and angry, and that can negatively impact the workplace. It is unfair that an assumption about the reasons for a public servant's deep emotions can result in the facts being set aside.

This bill will have a positive impact. As members know, I am a relatively new parliamentarian. I decided to introduce Bill C‑290 as my first private member's bill because I think it is important to introduce non-partisan legislation that is in the public interest. Every single person in this House, no matter their party, their ideology or which side of the constitutional divide they are on, wants public funds to be well managed. We all want Crown assets, federal government assets, to be used properly. We all want taxpayers who submit their income tax returns in April or May to have confidence in the machinery of government.

The main reason I introduced this bill is out of respect for the thousands of professionals who dedicate their lives and their careers to public service, people who devote their time and energy to public service, who truly care about the work they do. If we do not update the Public Servants Disclosure Protection Act, we are essentially preventing those people from doing their jobs to the best of their ability in extremely important situations. I think our public servants deserve Bill C‑290.

Requirement of Royal Recommendation for Bill C-290

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Madam Speaker, I will be responding to a point of order and a question of privilege. One of them will take longer than the other.

I am rising on a point of order in response to the Speaker's statement on September 26, 2022, respecting the need for a royal recommendation for Bill C-290, an act to amend the Public Servants Disclosure Protection Act, standing in the name of the member for Mirabel. I will not comment on the substance of the proposal, but I would like to put forward a submission that the bill would seek to authorize spending for a purpose that is being significantly altered.

In 2005, when the Public Servants Disclosure Protection Act was promulgated, it was accompanied by a royal recommendation. The royal recommendation was required because it set the mandate, purpose, objects and qualifications for a procedure for the disclosure of wrongdoing in the public sector.

In 2006, Parliament adopted a bill that amended the Public Servants Disclosure Protection Act to strengthen protection for whistle-blowers, including through the creation of the Public Servants Disclosure Protection Tribunal. The creation of the tribunal and its mandate was seen as a new and distinct charge upon the consolidated revenue fund and was accompanied by a royal recommendation.

Bill C-290 seeks to significantly alter the mandate of the public servants disclosure protection regime. The first change relates to whom the regime applies. Section 2 of the Public Servants Disclosure Protection Act defines “public servant” as:

public servant means every person employed in the public sector, every member of the Royal Canadian Mounted Police and every chief executive.

Bill C-290 would add an entire new class of persons who would be subject to the regime. Subclause 3(3) of the bill states:

public servant means every person employed in the public sector, every person retained under contract to perform services for the public sector, every member of the Royal Canadian Mounted Police and every chief executive.

Even the factual summary of the bill acknowledges that this proposed change represents an expansion of the mandate. The summary states:

This enactment amends the Public Servants Disclosure Protection Act to, among other things, expand the application of the Act to additional categories of public servants

Allow me to highlight other changes proposed in Bill C-290 that would alter the mandate of the regime and the duties and functions of the commissioner and the tribunal.

Clause 6 would extend the protections provided under the regime to former public servants, which is not contemplated in the act.

Clause 4 of the bill seeks to expand the types of wrongdoings to include new elements, namely the abuse of authority and political interference, and removes requirements such as the individual applying in good faith.

Clause 30 would remove the definition of “investigation”, which is set out in section 34 of the act. It states:

If the Commissioner is of the opinion that a matter under investigation would involve obtaining information that is outside the public sector, he or she must cease that part of the investigation and he or she may refer the matter to any authority that he or she considers competent to deal with it.

By proposing to remove section 34 of the act, the bill seeks to expand the mandate of the commissioner to obtain information that is outside the public sector, which, under the act, is clearly outside the scope of the commissioner's duties and functions.

Bill C-290 also seeks to amend subsection 19.3(1) of the act to remove the ability of the commissioner to refuse to deal with a complaint if the complaint has been adequately dealt with or could be more appropriately dealt with according to the procedure provided for under an act of Parliament other than this act or a collective agreement, or if it was not made in good faith.

Clause 24 would add a new responsibility for the commissioner to assess internal disclosure procedures in organizations and to review disclosure procedures upon request or on his or her own initiative.

Clause 19 of the bill would also add a new function for the tribunal by removing a power conferred upon the commissioner in the act. Clause 19 states:

A complainant whose complaint is dismissed by the Commissioner under section 20.5 may apply to the Tribunal for a determination of whether or not a reprisal was taken against him or her and, if the Tribunal determines that a reprisal was taken, the complainant may apply for an order respecting a remedy in his or her favour and an order respecting disciplinary action against any person or persons...who took the reprisal.

Bill C-290 seeks to significantly alter the mandate of the public servants disclosure protection scheme and the duties and functions of not only the commissioner but the tribunal in a manner not authorized under the act or any other act of Parliament.

Page 834 of House of Commons Procedure and Practice states:

A royal recommendation not only fixes the allowable charge, but also its objects, purposes, conditions and qualifications. For this reason, a royal recommendation is required not only in the case where money is being appropriated, but also in the case where the authorization to spend for a specific purpose is significantly altered. Without a royal recommendation, a bill that either increases the amount of an appropriation or extends its objects, purposes, conditions and qualifications is inadmissible on the grounds that it infringes on the Crown’s financial initiative.

I believe this is the case with Bill C-290. The amendments proposed would significantly alter the objects and purposes of the public servants disclosure protection regime in a way that exceeds the royal recommendation originally obtained when the statute was enacted and the royal recommendation attached to amending legislation.

Access to Information

[Christine Normandin, Bloc, Saint-Jean, QC]

Madam Speaker, the Fédération professionnelle des journalistes du Québec spoke out against the government's source hunting. It fears that Ottawa is discouraging whistle-blowers when it should in fact be protecting them. It is concerned, and rightly so, because Canada has the weakest whistle-blower legislation in the world. According to the International Bar Association, Canada ranks 50th out of 50.

That is why the Bloc Québécois has introduced Bill C‑290 to better protect public servants who blow the whistle.

Will the government support our bill instead of basically going on a witch hunt trying to track down sources within its own ranks?

Requirement of a Royal Recommendation for Bill C-290

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Madam Speaker, I rise today because the Chair asked parliamentarians to share their views on the requirement for a royal recommendation to accompany Bill C-290. I would like to give my party's opinion on this matter, as well as my own.

In our view, there is nothing in the bill that proposes the use of public funds. Nothing in the bill would result in direct costs, which, as we know, is at the government's discretion.

In his speech on September 28, 2022, the sponsor of the bill and member for Mirabel argued that clause 5 of the bill “specifies that the chief executive must provide support to a public servant who makes a disclosure.” The bill does not specify the nature of the support, but there is absolutely no indication that it would be financial.

The member for Mirabel explained this by adding the following:

The support referenced in clause 5 would involve, rather, things like information, referrals, guidance or advice, all of which are part of the normal duties and functions of executives. In short, we need to ensure that when public servants see wrongdoing, they know their rights, they know where to go, and they are not left to fend for themselves.

I agree with what he said, and I am concerned about too narrow an interpretation of the word “support”, which is absolutely not limited to financial support. In this case, the bill before us contains no mention of financial support, and it should not be interpreted as such.

I think the government's obligation not to terminate a contract or withhold payment following a disclosure falls into the same category. This provision would not generate any new government spending. All it does is prevent the government from taking a reprisal by withholding already payable funds.

The guidelines governing royal recommendation for private members' business are summarized in House of Commons Procedure and Practice, third edition, at page 1125, as follows:

The Constitution Act, 1867 and the Standing Orders require that bills proposing the expenditure of public funds must be accompanied by a royal recommendation, which can be obtained only by the government and introduced by a Minister. Since a Minister cannot propose items of Private Members' Business, a private Member's bill should therefore not contain provisions for the spending of funds.

I think it is important that the need for a royal recommendation be interpreted in a direct, targeted fashion. Any form of legislation can have indirect impacts on government spending. What is being asked for here is that the direct commitment of public funds be accompanied by a royal recommendation. That is why, in my opinion, Bill C-290 does not meet that criterion and consequently does not require a royal recommendation.

Requirement of Royal Recommendation for Bill C‑290

[Jean-Denis Garon, Bloc, Mirabel, QC]

Mr. Speaker, recently the Chair sought the members' views on whether my bill about public sector integrity, Bill C-290, might require a royal recommendation. The Chair did not specify which part of the bill warranted its intervention, but I surmise that two sections merit analysis.

There is clause 5, which states that the chief executive must provide support to the public servant making a disclosure.

There is also subclause 3(3), which gives contract employees the same protection offered to public servants who disclose wrongdoing in the public sector.

In my view, these provisions do not generate any expenditures that would not be covered by an existing royal recommendation, and that is what I intend to argue today.

I would like to begin by saying a word about Bill C-290. It amends the Public Servants Disclosure Protection Act to make it more effective. That legislation, as members will remember, was passed in the wake of the sponsorship scandal and was intended to provide protection to public servants who disclose wrongdoing in the public sector.

In many cases, only one person within the machinery of government becomes aware of wrongdoing, illegal acts, abuse of power or political interference in decisions that should be up to the non-partisan public service. The purpose of the act is to protect public servants who blow the whistle from reprisal and to create an institution responsible for enforcing the act, the Office of the Public Sector Integrity Commissioner, that public servants can go to for help.

Even though the act was passed more than 15 years ago, it has not produced the expected results. In fact, the federal government has one of the worst whistleblower protection regimes in the world, according to the International Bar Association.

Add up the numerous flaws throughout the act, and it is basically useless. For example, because the definition of wrongdoing is too narrow, many disclosures are not protected by the act. If a public servant makes an unprotected disclosure, their complaint will be rejected, the act will not protect them from reprisal, and their anonymity cannot be guaranteed either. Furthermore, if the whistleblower's complaint is admitted and an investigation is launched, the act does not clearly protect witnesses.

In the case of an internal investigation conducted by a person in a position of authority, this is understandably problematic. It is these flaws that my public sector integrity bill aims to correct.

This brings me to clause 5, which specifies that the chief executive must provide support to a public servant who makes a disclosure. Although the bill does not specify the nature of the support, it is quite clear that it is not financial support. The bill provides for no new financial support, period. The support referenced in clause 5 would involve, rather, things like information, referrals, guidance or advice, all of which are part of the normal duties and functions of executives. In short, we need to ensure that when public servants see wrongdoing, they know their rights, they know where to go, and they are not left to fend for themselves.

This brings me to subclause 3(3) of my bill. It amends the definition of “public servant”, adding “every person retained under contract to perform services for the public sector”. Subclause 3(5) adds that the government cannot terminate a contract as a result of a disclosure. This provision does not generate any expenditure that is not already foreseen, and here is why.

First, the current act already contains provisions about contracts. Under section 42.2, the government may not “withhold any payment that is due and payable in respect of any...contract”. It may not “terminate any contract...by reason only that the other party to the contract or any of that other party's employees has...provided information concerning an alleged wrongdoing”.

Furthermore, a disclosure is not considered a reasonable ground for refusing to enter into a new contract. The problem is that the definition of contract is restrictive. According to the act, contract “does not include an agreement by a public servant, or by a person appointed by the Governor in Council or by a minister of the Crown, to perform the duties to which their employment or appointment relates”.

A construction company that reports wrongdoing at a federal government work site is protected, yet a person hired under contract to provide a service to the government on a temporary basis may not be covered. Because that person meets the definition of a casual worker under the Public Service Employment Act, I gather that they are excluded because they carry out the duties of a public servant but do not enjoy the other protections that public servants have because they are a casual worker.

One example is someone who is offered a three-month contract with the Canada Revenue Agency during income tax season. Because they have no job security, people with precarious status are precisely the ones who need protection the most.

It should be noted that they are not completely unprotected at this time. They are afforded some protection through their contract, which is binding on the Crown. That is how it works right now. Under contract law, which is governed by the Civil Code or by common law, the government cannot unilaterally modify or terminate a contract in an arbitrary manner. This is already the case.

The government's financial commitments are those set out in the contract, whether or not Bill C-290 is passed, but the remedy for contractors who experience retaliation is a civil suit. Bill C‑290 simply changes the administrative process following a complaint.

If Bill C‑290 passes, contractors will be able to file complaints with the commissioner and they will remain anonymous. The complaint will go through the process and the contractor can expect to see an investigation that will result in an end to the wrongdoing. In the event of reprisals in the form of termination of contract, the contractor can seek assistance from the commissioner, who will then reach out to the government, if appropriate, saving contractors from having to sue in court to enforce the provisions of their contracts. This does not, however, change the terms of the contract or the financial obligations thereof.

In short, Bill C‑290 in no way alters any of the government's contractual obligations. These obligations are already binding in civil court and must be met under part III of the Financial Administration Act. Bill C‑290 in no way changes those obligations. It will not generate any expenditure beyond what is already set out in the existing legal framework. It changes neither the amount of the expenditure, nor its terms or any associated conditions. In conclusion, I do not feel that it requires royal recommendation and I am confident that the Chair will come to the same conclusion.

Requirement of Royal Recommendations for Bills C-285 and C-290

[The Speaker, Liberal, Anthony Rota]

I would like to make a statement concerning the management of Private Members' Business.

As members know, certain constitutional procedural realities constrain the Speaker and members insofar as legislation is concerned.

Following each replenishment of the order of precedence, the Chair has developed a practice of reviewing items so that the House can be alerted to bills that, at first glance, appear to impinge on the financial prerogative of the Crown. This allows members the opportunity to intervene in a timely fashion to present their views about the need for those bills to be accompanied by a royal recommendation.

Accordingly, following the replenishment of the order of precedence with 15 new items on Monday, June 20, I wish to inform the House that there are two bills which preoccupy the Chair. They are Bill C-285, an act to amend the Canadian Human Rights Act, the Canada Labour Code and the Employment Insurance Act, standing in the name of the member for Niagara West; and Bill C-290, an act to amend the Public Servants Disclosure Protection Act, standing in the name of the member for Mirabel.

The understanding of the Chair is that these bills may need to be accompanied by a royal recommendation.

I therefore encourage members who would like to make arguments regarding the requirement of a royal recommendation for Bills C-285 and C-290 to do so at their earliest opportunity.

I thank the members for their attention.

Public Sector Integrity Act

[Jean-Denis Garon, Bloc, Mirabel, QC]

moved for leave to introduce Bill C-290, An Act to amend the Public Servants Disclosure Protection Act.

Madam Speaker, today it is with great pride that I introduce the public sector integrity act, which puts some teeth into the Public Servants Disclosure Protection Act.

Public servants who witness wrongdoing must be able to speak out without fear, in the knowledge that their anonymity will be protected and that they will not be thrown under the bus. They need to know that they deserve thanks, not reprisal. They need to know that there will be an independent investigation into the wrongdoing reported, not just an internal review by people who may have an interest in covering it up.

The Standing Committee on Government Operations and Estimates identified these issues five years ago, but the government has never addressed them. Last year, the International Bar Association found that Canada provides very little protection to its whistleblowers. Canada ranks dead last in this regard, behind countries like the Cayman Islands, Bangladesh, Rwanda, and Pakistan. That is the situation in the best country in the world.

This is what my bill addresses. It protects more people, including former public servants and contractors, and covers more cases, including political interference in the work of government professionals. It can trigger a real investigation by the Auditor General or law enforcement, because wrongdoing must be exposed, not covered up.

Public servants who expose fraud, mismanagement and undue political interference are heroes. Let us protect them.

(Motions deemed adopted, bill read the first time and printed)