Bill C-2 (39th Parliament, 1st Session) Committee on May 30th, 2006

[Pat Martin, NDP, Winnipeg Centre, MB]

That's an excellent point.

[Jennifer Stoddart]

We think our government should be open and transparent, not open and transparent about what's in my file or yours, but open and transparent about documents that contain facts, eventually opinions, policy statements, and so on, that go to the governance of the country.

Inversely, the personal information we give should be accessible only to us, and I would argue that we should go on, and that's why I'm arguing for reform of the Privacy Act next week. We should also know the linkages and what use is made of our personal information. That's not very clear under the present regime.

But we have to live with both these principles. We all want them I think as citizens, and we have to get them right.

[Pat Martin, NDP, Winnipeg Centre, MB]

Up until your being here as a witness today, I think the emphasis of this committee has probably been on the access to information side. Your representing the side for right to privacy is very fitting.

With the whistle-blowing changes, you cite that you don't oppose what Bill C-2 would do to Bill C-11. But in your own experience, I suppose it's ultimately very difficult to guarantee the anonymity of the whistle-blower. I think you made some reference to it. If it becomes an integral part of the investigation, you talked about natural justice or maintaining natural justice. Could you explain what you mean by that?

I'll find the phrase:

Even where the identity of the whistleblower may be relevant to an investigation, Bill C-11, as amended by C-2, expressly provides that rules of procedural fairness and natural justice continue to apply....

What do you mean by natural justice and procedural fairness?

[Jennifer Stoddart]

In this context, natural justice and procedural fairness usually mean things like the right of both parties to be heard, before a conclusion or a decision is come to that would affect both of them, and the right to know all the facts that are involved in the process so that one is not adversely affected by an arbitrary process, part of which would be secret.

[Pat Martin, NDP, Winnipeg Centre, MB]

Isn't the right to know your accuser an aspect of natural justice?

[Jennifer Stoddart]

Well, I don't like the phrase “the right to know your accuser” in the context of administrative law. I think it telescopes a lot of things, such as criminal law principles, and it imports them into a more sensitive, nuanced, and many-shaded world of administrative process. I stay away from that phrase.

I think what we're looking at and what you are looking at in Bill C-11, where I originally testified on this, is how to create a safe place, as in the example of the Office of the Privacy Commissioner in 2003, for people to come forward and say they think there's something wrong, without being intimidated the next day by the person who they think is doing something wrong. I do not see that as contrary to natural justice. I think you need to have a time and a space in which you can do that. You can come forward and you have some protection while the investigation is going on.

I said in my submission that the person or persons who are leading the investigation have other tools at their disposal, rather than making the contents of the investigation public, as in open court, which is our rule for criminal proceedings, notably on the issue of the credibility of witnesses. They also look at all the facts, and so on. You have those built-in safeguards.

My reference to natural justice also meant there's usually a second, third, or ulterior step after that. If you go on from the initial discovery of facts that is triggered by a whistle-blowing process and you go on to some kind of disciplinary or remedial action or criminal accusations, at that point, yes, you then have the right to know all about the case.

[The Chair, Conservative, David Tilson]

Thank you.

Monsieur Petit.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Thank you, Mr. Chair.

Ms. Stoddart, my question is two fold. You work for the Office of the Privacy Commissioner of Canada and you have access to a wide range of rules to protect privacy. God knows how difficult that is today!

However, there one thing that I wonder about. The Information Commissioner of Canada has a job completely the opposite of yours, meaning he requires a great deal of information. You you are some kind of a watchdog.

Do you believe that Bill C-2 will enable the information you obtain during an investigation, for example with regard to protecting individuals, to be transferred to the Information Commissioner? If I want to obtain information, I must go through the Information Commissioner. If you block my request, rightly or not, I do not have to provide an explanation. Would you be prepared to transfer information to the Information Commissioner, or would you systematically block the transfer of information? Does Bill C-2 resolve this problem?

[Jennifer Stoddart]

I do not believe that, currently, personal information is passed on to the Information Commissioner. That is why a suggestion is being made with regard to the exemption.

I would like to ask the legal counsel to talk to you about this in greater detail.

[Patricia Kosseim, General Counsel, Office of the Privacy Commissioner of Canada]

The Privacy Commissioner is involved when personal information on a third party is collected during an investigation by the Privacy Commissioner on a much broader subject. In both cases, there are provisions, in Bill C-2 and in the current legislation, that can protect some information so there are not disclosed.

Under Bill C-2, information collected during an investigation would be exempted, which the Commissioner fully supports.

With regard to personal information on third party, there are already provisions in place to ensure that this information is protected. There are mechanisms protecting this information prior to its disclosure.

So Bill C-2 would not necessarily increase this tension.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Agreed.

I have another question for Ms. Stoddart or Mr. Kosseim. In Bill C-2 from this session and Bill C-11 from the previous session, which you examined, the term “whistleblower” is used. Naturally, everyone focusses on this word. However, there is another notion, which we learned about within the framework of the Gomery Commission,that of “informer”. Do you see the distinction between the two terms?

A whistleblower is someone who did not assist in the commission of a crime, while an informer is an individual within the system who, in order to obtain specific rights... For example, Mr. Guité, who was within the system, could have sold out his friends by revealing everything they had done in order to reduce the penalty he would face.

Does Bill C-2 provide this possibility?

[Jennifer Stoddart]

It is difficult for me to answer this question. I have not considered the distinction between these two terms, but I do not see, with regard to their use, consequences on privacy protection.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Thank you.

[The Chair, Conservative, David Tilson]

Thank you.

That concludes our time with you this morning.

I thank you very much, Ms. Kosseim and Commissioner Stoddart, for coming.

We will break for a few minutes.

[The Chair, Conservative, David Tilson]

We'll reconvene the meeting.

We have three groups before us this morning. We have Deborah Bourque, the National President of the Canadian Union of Postal Workers.

Good morning, Ms. Bourque.

We have Toby Sanger, an economist, and Corina Crawley, both from the Canadian Union of Public Employees.

Good morning to you.

We have Pierre Patry, and Eric Lévesque, who are with the Confédération des syndicats nationaux.

Good morning to you.

All three groups can make brief presentations to us before the committee asks you questions.

Thank you.

[Deborah Bourque, National President, Canadian Union of Postal Workers]

On behalf of the 54,000 members of the Canadian Union of Postal Workers, I want to thank you very much for the opportunity to appear before this committee and to provide the committee with our views on Bill C-2.

Due to the time constraints, my presentation will consist of a very much edited-down version of the written presentation that you've already received, and I'll basically start on page 2 of the English and page 3 of the French.

To begin with, I'd like to mention that we're very happy that Canada Post is going to be covered under access to information. This is something that we have been calling for for years. However, we have serious concerns about amendment 149 under part 3, which adds exemptions and exceptions to Canada Post coverage under the Access to Information Act. We think the exceptions being proposed are too extensive. In addition to normal economic interest exemptions, such as trade secrets, financial, commercial, scientific or technical information, the government has added a new exemption for information that has consistently been treated as confidential. This would cover a great deal of information at crown corporations like Canada Post. Canada Post has not been required to give the public access to its information and it would therefore be very easy for Canada Post to say that a great deal of information has consistently been treated as confidential.

I'll give you one example of basic information that Canada Post is currently treating as confidential. The corporation is reviewing its national network and has announced plans to close a mail processing plant in Quebec City as the very first step in its review. It has also closed about 50 rural post offices since 2001 in spite of a moratorium on post office closures in rural and small towns. Canada Post is a public corporation and the public has a right to know what the corporation is up to, especially when it comes to fundamental issues such as the integrity of our public postal network. Unfortunately, Canada Post has refused to release its overall plan for the network.

If information that has been consistently treated as confidential is included, it will be difficult for us to obtain this kind of basic information even if Canada Post falls under the Access to Information Act.

We'd also like to raise concerns about the exceptions to the new exemptions. We don't understand why we need an exemption for a part of a record that deals with general administration or a special exception for a part of a record that deals with any activity of Canada Post that is fully funded out of moneys appropriated by Parliament. This sounds to us as if everything except for parts of these two types of records...and you know, frankly, they are readily available on Canada Post's website, and the information that relates to things that are solely funded by the government is limited to government mailings and publications for the blind. We think this means that everything would be treated like information that has consistently been treated as confidential.

We'd like the committee to amend Bill C-2 to make it clear that Canada Post must provide all information, except for very specific exemptions.

I'd like to mention here that our call to have Canada Post subject to access to information rules has always included an exemption for information that is commercially sensitive. We agree that there's a real need to improve transparency at Canada Post, but we also think that our public post office must be protected from the predatory requests of competitors who have no legitimate claim on information such as Canada Post's plans to compete with courier companies. These companies want more of Canada Post's business but none of its universal service obligations.

So the union is recommending language, and this is included in the written presentation we've given you, that makes it clear that the head of Canada Post must provide all information with the exception of trade secrets or financial, commercial, scientific or technical information. We would also suggest that the terms “trade secrets, financial, commercial, scientific or technical information” be defined in the least restrictive way possible, and that this information would be subject to independent review by the Information Commissioner.

We have other concerns, especially related to contracting out with procurement, that we hope to have a chance to address during the question period. Thank you very much.

[The Chair, Conservative, David Tilson]

Thank you, Ms. Bourque.

Ms. Crawley, Mr. Sanger, very briefly.

[Corina Crawley, Senior Research Officer, Canadian Union of Public Employees]

I'd like to thank the committee, on behalf of the Canadian Union of Public Employees, for the opportunity to share our thoughts and recommendations for amendments to Bill C-2, the proposed Accountability Act.

CUPE is the largest union in Canada. It has over 540,000 members, most of whom work in the municipal sector, in health, education and social services. Our objective is to maintain and reinforce the public sector, not only to benefit our members, but also to strengthen our communities. Our interest today is to ensure that Bill C-2 will improve government accountability, particularly with regard to contracts for the procurement of goods and services and with private companies in general.

Accountability is a major concern with contracting out and public-private partnerships, or P3s.

The sponsorship scandal is only one example of these. The $160 million Department of National Defence scandal, the Richmond airport-Vancouver rapid transit line, also known as the Canada Line, and Prince Edward Island's Confederation Bridge were all other examples fraught with controversy.

Privatization of roads, hospitals, schools, and prisons in the U.K. has led to mismanagement of funds and loss of public control.

The changes proposed in Bill C-2 put the public sector under a microscope—in many cases this is welcome—but leave the private sector and its use of public funds shielded from scrutiny.

I am going to give my colleague the floor so that he can explain our amendments and our particular concerns.

[Toby Sanger, Economist, Canadian Union of Public Employees]

In our view, a central element of the federal Accountability Act should be to increase the transparency, disclosure, and powers of the Auditor General to review contracts with third parties. This was the essence of the sponsorship scandal: a political party's abuse of public funds channelled through private contracts, often with crown agents of the government, for private partisan purposes. Public accounts, budgets, estimates, departmental reports, and the Auditor General, as well as the proposals in the Accountability Act, provide significant accountability and details on how funds are spent within government. Citizens also deserve to know how their funds are spent by private companies.

Instead of proposing to improve accountability by substantially increasing transparency, the proposed Federal Accountability Act has adopted an approach more like “father knows best”, by increasing the powers of and the number of oversight bodies rather than substantially increasing the transparency of government. These proposals would not necessarily prevent further abuse and scandals from happening, particularly in relation to government contracts with private companies.

The proposed Federal Accountability Act has major loopholes that would exclude contracts for goods and services from review by the Auditor General, not allow individual citizens to lodge complaints with the proposed procurement auditor, not enshrine the current practice of proactive disclosure in legislation, and not address the recommendations of the Information Commissioner regarding disclosure of details of government contracts with third parties, or even meet the principles established in courts over this information.

We have prepared and distributed four sets of specific changes. They are simple and they are fairly straightforward, but they go a long way to increasing accountability for all government spending. These are certainly not the only changes that should be made. We support the proposals made by the Canadian Union of Postal Workers, and you've also heard a lot of other proposals.

I can go into these in more detail later, if you would like. I've distributed them.

[The Chair, Conservative, David Tilson]

Thank you, sir.

Monsieur Lévesque or Monsieur Patry, be very brief, please.

[Pierre Patry, Treasurer, Confédération des syndicats nationaux]

First, I want to thank you for allowing us to present our briefs on Bill C-2. The CSN represents 300,000 workers in all sectors of activity. Although it is mainly concentrated within Quebec, the CSN is also present elsewhere in Canada, particularly in the telecommunication and road transport sectors and also represents correctional officers in federal penitentiaries.

We congratulate the current government on its initiative in presenting a bill and a federal accountability action plan. Overall, we agree with this bill. However, we feel that it is lengthy and complex, and we want to ensure that there will be a real consultation process and a rigorous study, because this bill must not be passed too hastily.

Given the short amount of time at our disposal and the complexity of this file, our presentation will focus on a few issues.

First, with regard to political party financing, we are delighted that the federal government included in its federal accountability action plan measures based on the Quebec model that has been in place since the 1970s regarding political party financing, which helped to improve the democratic process during elections.

The ban on corporate donations will help to further the democratization of political party financing, and the provisions concerning the ban on making secret donations to political candidates will also help to clean up election practices.

With regard to budget transparency, we also agree with the proposed approach. In fact, we ourselves had made this recommendation during pre-budget consultations. However, we do have questions about the means used. We wonder if it would not be preferable to create an independent working group rather than having a parliamentary budget officer. We also have questions about this officer's powers with regard to access to information. Why does this position come under the Library of Parliament rather than under the Standing Committee on Finance, for example? We also wonder about the additional resources that will be allocated to the parliamentary budget officer.

As for the protection provided to whistleblowers, we are pleased that protection will be given to employees who wish to disclose wrongdoing. However, we oppose providing a $1000 reward to individuals who would act under the provisions of the new legislation. We fear that this will lead to a culture of whistleblowing. We agree that it is important to protect individuals, but we do not believe that a culture of whistleblowing should be encouraged with a monetary award.

With regard to the Access to Information Act, we do not agree that the reform should be delayed yet again. Moreover, last November, the Standing Committee on Access to Information was unanimous in this regard, if I am not mistaken. Consequently, we believe that the government should move forward as quickly as possible on this issue.

We wish to emphasize our support with regard to the addition of Crown corporations that will be covered by the Access to Information Act. However, the new exceptions are of some concern, with the exception of the special exemption for Radio-Canada and work done by journalists. This is, in our opinion, fully justified in order to ensure the protection of sources.

In closing, I want to mention two things. First, with regard to the powers of the Auditor General, we are pleased with the provisions in this bill.

With regard to the ethics commissioner, our main question concerns the fact that citizens will not be able to communicate directly with this individual, but will have to go through an MP. We would have preferred for individuals to also be able to file complaints with the ethics commissioner who would determine the validity of these complaints.

Thank you.

[The Chair, Conservative, David Tilson]

You all did very well in the time allowed. Thank you very much.

Mr. Owen.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Thank you.

Perhaps I could address the first question--and then I'll share time with my colleagues--to Ms. Crawley, in terms of the expansion of the review by the Auditor General into contracts.

You mentioned a number of examples of P3 arrangements.

The Auditor General, when she appeared before us, expressed some real concern about the expansion of her role, even to the extent that the act does provide for...because of lack of resources, but also the complexity of it, perhaps in favour of a simpler model where spot audits could be provided or the normal course of auditing of those relationships would be brought forward through professional audit.

The one area where of course it's very useful to have the Auditor General directly involved beyond just audit provisions is following the money, as they say, and the value-for-money aspect of it. Is that what you're trying to get at in terms of the expansion of private-public partnerships?

[Corina Crawley]

I would start by saying that I think we might not support the expansion of the Auditor General's purview to organizations receiving smaller amounts of federal funding, which is I think the major significant change you're referring to.

I'm not surprised to hear she was concerned about that, in terms of her workload. It's perhaps more important that there be some capability of the Auditor General to work with the financial statements and documents, and with contracts, once they're signed, that the federal government has entered into with private companies—rather than NGOs and non-profits that are receiving $1 million over five years, or whatever that figure was.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

But you're talking about large public works—