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 .

Government Operations and Estimates

[Kelly McCauley, Conservative, Edmonton West, AB]

Mr. Speaker, I have the honour to present, in both official languages, two reports from the Standing Committee on Government Operations and Estimates, also known as the mighty OGGO.

I table the seventh report, in relation to Bill C-290, an act to amend the Public Servants Disclosure Protection Act. The committee has studied the bill and, pursuant to Standing Order 97.1(1), requests a 30-day extension to consider it.

I also table the eighth report, in relation to the motion adopted on Wednesday, May 17, 2023, regarding the consideration of Bill C-290, an act to amend the Public Servants Disclosure Protection Act.

An Act Respecting Regulatory Modernization

[Stephanie Kusie, Conservative, Calgary Midnapore, AB]

Madam Speaker, I would like to thank my colleague from Mirabel for his question. I also want to thank him again for his bill, Bill C-290.

The idea he just mentioned was part of our platform in the last two election campaigns. I am pretty sure about that with respect to individual tax returns. I am not 100% sure about it when it comes to businesses, but certainly with respect to individuals.

I know that the Quebec members of our caucus, but really all members of our caucus, agree that Canadians should be able to report their income in the simplest and easiest way possible.

I therefore agree with my colleague. We support the idea of collecting taxes as he has suggested.

[Stephanie Kusie, Conservative, Calgary Midnapore, AB]

Madam Speaker, I thank my colleagues for ensuring that the debate stays relevant.

Certainly the amount of money the Liberal government is spending is critical to every bill, so thank you, Madam Speaker, for overseeing the discussion as I continue my interaction here today.

As I was saying, the finance minister indicated that she would use fiscal restraint. I do not believe she did so. If I could go even further back to when Bill S-6 was first being discussed, which was last spring before we broke for the summer recess, it was at that time and even into the fall that the finance minister indicated she was going to implement an idea that our leader has committed to: the “pay as you go” system. She said she would have fiscal restraint, but I do not believe she has that. Last year, at the end of the spring session, Bill S-6 was being discussed, as well as the “pay as you go” system, but both of these things did not happen.

In relation to our economy, I talked about Canadians being frustrated, defeated and exhausted. I am sure members saw the article in The Globe and Mail today indicating that this point in Canadian history is the worst time for new small business start-ups. This touches my heart very much. I know members have heard me speak before about how I come from a small business family in Calgary Midnapore. For me, growing up, small business was always front of mind. This included regulations, and I believe small businesses will struggle with the changing regulations indicated in Bill S-6. Again, if we look across the different departments, we can see how this can happen. Those are a couple of points in relation to Bill S-6.

I will also point out that in Bill S-6, with the way the government legislates and operates in general, the language is consistently filled with jargon, with words and phrases that are difficult for Canadians to interpret. I started out this speech by talking about how legislation should be for Canadians. It is the common Canadian we should be legislating for. When we have phrases that are too complex for Canadians to understand, it does not help them. It does not empower them. We need to do that.

With that, I would like to take a moment to talk about the plain language law that we would implement once we are in government, again in an effort to get government working for Canadians instead of having Canadians work for the government, as we are seeing in this case. I thought that was a very important point to mention.

As shadow minister for the Treasury Board, another place where I see this take place is with the public accounts. There needs to be much revision to the public accounts and how they are presented. I do not believe Canadians understand them in the format they are in presently. I always share the story that in my home growing up, like the concept we have in our home, a budget was like this: We bring in this much money as a household, we spend this much money as a household and we save this much money as a household. I do not believe the public accounts reflect a simple concept such as this, a concept that many Canadian households and many Canadians sitting around the dinner table have to follow. Again, this is in relation to the jargon, the lack of plain language and the complexity we see in regulations and legislation from the government, which is relevant to Bill S-6.

We also talk about Bill S-6 being indicative of another concept, which is very dear to the official opposition and the heart of our leader: getting rid of the gatekeepers. That essentially means making it easier for Canadians to live, to conduct business and to have the quality of life they deserve, which the government is not delivering to them, as evidenced by some of the earlier indicators I gave.

We as the official opposition have provided some constructive ideas for getting rid of the gatekeepers.

For example, our opposition day motion that was presented yesterday talked about getting rid of the municipal gatekeepers, which, coming from Calgary, I have had an opportunity to see first-hand at Calgary City Council. Having done some advocacy work at the civic level, I can say that all governments must be working together, pulling in the same direction in an effort to provide Canadians with the best standard of living, and that includes housing.

Especially when we consider the ambitious immigration targets of the current government, we need to seriously and sincerely consider how we are going to accommodate all of these newcomers. Again, I say this as an Albertan. Alberta is a place of incredible growth and we are so happy that so many new Canadians and so many Canadians who have abided in other places are making the choice to come to Alberta, but we need to seriously consider how we are going to support our citizens.

In his opposition day motion speech yesterday, my leader talked about how we will incentivize those municipalities that make the decision to build more homes for Canadians, and we will not reward those that do not. This is an excellent example of where we have to think about the gatekeepers. Bill S-6 is just an indicator that there are so many gatekeepers across government, when we have to make these minute changes to legislation which seems applicable to ages ago, including things as simple as removing stickers from liquid vending machines. It is astounding to me that these types of things are coming to light now.

Another example I will give of the official opposition's desire to get rid of the gatekeepers is our unique idea to bring home doctors and nurses and to allow for a Blue Seal in the same way that we have the Red Seal in the trade professions. That is wonderful. It is just fantastic how we have more young people joining the trades. I am especially excited about more young women joining the trades. I am certainly glad to see some of the legislation, even if it is at a provincial level, allowing young women to feel comfortable in joining the trades. Whether it is providing safe and clean restrooms for them or whether it is providing equipment that is suitable for their size and stature, whatever that may be, that is just excellent.

Our leader and the official opposition have found that the licensing bodies create endless barriers and red tape, which again is a topic that is talked about much in Bill S-6, resulting in an unnecessary, even greater shortage of doctors and nurses. I would like to quote this sentence from my leader. He said, “The Blue Seal will mean that it won’t matter where someone comes from, it matters what they can do.” That is just fantastic. If these doctors and nurses meet our Blue Seal standards, they will be able to work in our health care system. Again, this is just another example of the Conservative Party, the official opposition, looking for true efficiencies.

Bill S-6 addresses these tiny things. Really our energies could be spent on addressing much larger problems and finding efficiencies in larger problems rather than, in many cases of Bill S-6, providing opportunities for even more legislation through regulation.

I will add that legislation by regulation has not always resulted in the best outcomes for Canadians. I know that as we discuss Bill C-290 in the government operations committee right now, we are discussing, for example, the role of the public service integrity commissioner. A big discussion around these debates on Bill C-290 is really to decide how much leeway we will give the public service integrity commissioner in terms of regulation.

These are significant things that touch upon workers and will gravely determine whether a public servant decides to file a grievance and if they feel comfortable in doing so. This is something that is very important.

Another situation where we saw regulation was not sufficiently applied, for this official opposition, was the order in council regarding firearms. My goodness, that was before the pandemic, so three or four years ago now. That is a time when it most probably should have been legislation. Of course, we are going through the Bill C-21 process right now, which the Conservatives oppose. No matter what the wolf in sheep's clothing looks like, we will oppose Bill C-21. That is an example where regulation was used and perhaps should not have been. Perhaps it should have been left to legislation. This is most definitely another example.

I look through these different examples. There are other examples that my colleagues will talk about this evening, things they are very concerned about, interpretations of endangered species, for example. Again, there are more topics filled with jargon, but members will give their comments as well as to what interpretation of this legislation will mean through regulation.

It is something important to keep in mind, because, as I indicated, legislation should be made by the people for the people. This is something the official opposition, the Conservatives, are committed to. I think about how we are going to deal with the complex issues ahead of us, such as artificial intelligence, if we are talking about liquids coming out of vending machines.

Bill S-6 brings back the complexity, the jargon and the gatekeepers of this legislation. We on this side of the House want to have legislation that works for every Canadian in every single home, my home, all our homes, so let us bring it home and let us re-evaluate Bill S-6.

Budget Implementation Act, 2023, No. 1

[Stephanie Kusie, Conservative, Calgary Midnapore, AB]

Madam Speaker, first, I would like to thank the Bloc Québécois for its Bill C‑290, which is currently before the Standing Committee on Government Operations and Estimates.

Of course we agree that workers' rights are important. I think that we can also agree that the government and the Prime Minister are to blame for the current strike.

Based on the questions I got, it is clear that we agree on a lot of things concerning workers' rights and the government's responsibility.

Requirement of Royal Recommendation for Bill C‑290—Speaker's Ruling

[The Speaker, Anthony Rota]

I am now ready to rule on the point of order raised by the member for Mirabel regarding C-290, an act to amend the Public Servants Disclosure Protection Act, which stands on the Order Paper under his name.

In my statement of September 26, 2022, on the management of Private Members’ Business, I expressed concern about Bill C-290. At the time, I encouraged members who wished to make arguments about whether or not the bill requires a royal recommendation to do so. The member for Mirabel, the member for New Westminster—Burnaby and the parliamentary secretary to the government House leader did just that in points of order on September 28, October 21 and October 25, 2022. I would like to thank them for the information they shared in their statements.

In his point of order, the sponsor of Bill C-290 explained that clause 5 of the bill stipulates that chief executives must provide support to public servants who make disclosures. He said that this support is not of a financial nature, but instead includes information, referrals, guidance and advice, and would not entail any new expenditures.

In addition, regarding the proposed amendments to the definition of “public servant” in subsection 2(1) of the Public Servants Disclosure Protection Act, the member said that, since the act already includes provisions on contract employees in the public sector, adding these employees to the definition does not mean the bill needs a royal recommendation.

The member for New Westminster—Burnaby agreed with the bill’s sponsor. In his intervention, he noted that nothing in Bill C-290 indicates that the support provided to public servants who make disclosures must be financial in nature. He further remarked that amending the definition of “public servant” as the bill proposes would only prevent the withholding of a payment or the termination of a contract.

As for the parliamentary secretary to the government House leader, he said that the bill’s inclusion of former public servants and those retained under contract would expand the scope of the public servants disclosure protection regime. For this and other reasons, the parliamentary secretary argued that Bill C-290 should be accompanied by a royal recommendation.

As stated in House of Commons Procedure and Practice, third edition, on page 838, “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.”

The Chair has carefully examined Bill C-290. Currently, section 42.2 of the Public Servants Disclosure Protection Act prohibits some forms of reprisal against contract employees, including payment withholding and contract termination. The new definition of “public servant” proposed by Bill C-290 would, among other things, allow for the payment of compensation or the reimbursement of expenses or financial losses to contract employees who are found to have been subject to a reprisal following an investigation.

In the view of the Chair, the implementation of Bill C-290 would infringe on the conditions of the initial royal recommendation that accompanied the current act. Accordingly, a new royal recommendation is now required before the bill can proceed to a final vote in the House at third reading.

In the meantime, when the bill is next before the House, debate will continue on the second reading motion, and the motion will be put to a vote at the conclusion of the debate.

I thank the members for their attention.

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.

Government Appointments

[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, 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.