Bill C-2 (39th Parliament, 1st Session) Committee on June 13th, 2006

[Joe Wild]

Okay, I never know with that acronym.

But because of that distinction, if you have an entity—and I'm not aware of any currently—under the Access to Information Act that's not also under the Privacy Act, you have the potential for a bit of a disconnect, in that you would have a definition of personal information under the Access to Information Act that's based on the Privacy Act, yet you have an institution that's not subject to the Privacy Act under PIPEDA operating under a completely different definition for personal information.

So their requirements, in terms of maintaining confidentiality with respect to personal information, is different under PIPEDA from what it would be under the Privacy Act. You're going to end up with a potential collision between concepts, where they may be required to disclose information under the Access to Information Act, which normally, under PIPEDA, they would not be required to disclose.

So it can create a conflict. Certainly, as I say, how is it just the usual? I'm not aware of any case in which we have an institution under the Access to Information Act that is not subject to the Privacy Act.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

So I have a decision to make, don't I?

[An hon. member]

[Inaudible--Editor].

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Why don' t you zip it? It might help your cause.

[The Chair, Conservative, David Tilson]

Okay, we've got a vote, unless there's more debate. It's L-20.2.

Madam Jennings.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

I will withdraw it.

[The Chair, Conservative, David Tilson]

All right.

(Clause 191 agreed to on division)

(Clauses 192 and 193 agreed to)

(On clause 194)

Clause 194 is another one of these tricky ones. It relates to the Public Servants Disclosure Protection Act. There's a series of other clauses related to clause 194, so we will deal with all the amendments that pertain to the subject matter of clause 194 before we put the question on clause 194.

Therefore, we'll deal with the amendments to this clause and to clauses 201, 203, 210, 222, 224, and 225. Once this is completed we will put the question on clause 194, and its results will be applied to all those consequential clauses, namely 195, 197, 201, 211, 216 to 219, and 222 to 226.

So we will proceed with the first amendment relating to clause 194, which is NDP-19 on page 147.

Mr. Dewar.

[Paul Dewar, NDP, Ottawa Centre, ON]

Thank you, Chair.

I move this amendment relating to those who are not presently covered by the bill. So Bill C-2, in clause 194, would be amended by replacing lines 2 and 3 on page 127 with the following:

taken against a public servant or researcher, including a student in a post-secondary or research-affiliated institution, because the public servant or researcher has made a protected disclosure or has,

We heard from people who were whistle-blowers. We heard from people who worked in the area of research with post-secondary education institutions and wanted to make sure that the people who are doing research with federal money, or touched, if you will, by federal dollars and federal scope, would have the same kinds of provisions that public servants would have. This just widens the scope a bit to ensure that the protection that is garnered, or will be garnered, for those who are directly hired by the public service will also be there for those people who are researchers, and not just exclusively those people who are public servants.

I think it's really important in terms of what we heard from the people who presented, people who have written individually to me, and people I've spoken to individually, when you take into account that a lot of the work that the government does isn't always in house; it is in fact done by people who are either working in partnership or people who are hired on contract by the federal public service or by federal dollars. So I think what this does is actually tighten up the accountability and the responsibility and provide protection for whistle-blowers beyond the scope that the bill had initially.

Thank you.

[The Chair, Conservative, David Tilson]

Mr. Sauvageau.

[Benoît Sauvageau, Bloc, Repentigny, QC]

Off the top, I'd be inclined to be in favour. My question is for counsel.

Does this work? Perhaps it would be better to state that we want to protect all those who are covered by the act. In choosing this definition, are we forgetting any? Is it dangerous to touch the post-secondary institutions appearing in the act?

[Joe Wild]

The proposed amendment is one that certainly touches on and would primarily deal with employment-related actions taken against researchers, including a student at a post-secondary or research institution. The issue that raises is that the employment relationships with respect to researchers and students in universities, or even a private sector research facility, are relationships that would typically be under provincial jurisdiction and not federal constitutional jurisdiction. So the amendment as proposed does present an issue from a constitutional perspective, in that employment and labour relations in those institutions is really a matter of provincial legislative jurisdiction.

[Benoît Sauvageau, Bloc, Repentigny, QC]

Thank you.

[The Chair, Conservative, David Tilson]

I'll now call the vote on amendment NDP-19.

Monsieur Sauvageau.

[Benoît Sauvageau, Bloc, Repentigny, QC]

According to our legal expert, if this amendment were adopted, it could be challenged under the Constitution because post-secondary institutions would be under provincial jurisdiction. I simply want to recall that before moving on to the vote.

[The Chair, Conservative, David Tilson]

Thank you, sir.

Mr. Dewar.

[Paul Dewar, NDP, Ottawa Centre, ON]

If I may, I have a question for the expert panel.

If we're talking about post-secondary institutions, researchers who are with post-secondary institutions or hired on behalf of the government, or related to the government--adjacent to the government, if you will--would they not be considered different from those who are hired directly within a university?

In other words, would it not be plausible that you would have people who, notwithstanding the fact that they might be paid directly by the university in most instances, might receive research grants or research moneys directly from the federal government?

[Joe Wild]

I think it's important to be clear about the limits of federal spending power. Federal spending power doesn't translate into a regulatory constitutional authority for the federal government. While the federal government may, in any particular area, provide grants or contributions, that spending power--in other words, the creation of contractual relationships--does not translate necessarily into the federal government having the authority to go in and regulate conduct that would otherwise be in the jurisdiction of the provinces. So the mere fact of giving money would be insufficient, unless we were talking about giving money in an industry that was already under a federal constitutional head of power.

[Paul Dewar, NDP, Ottawa Centre, ON]

I have a final question, Mr. Chair. It relates to those foundations that do research and receive federal money--in fact, rely almost directly upon federal money and perhaps some private money, so it would be some of the foundations that we've heard from in innovation and sustainable development, etc. Would those foundations be covered by the provisions presently in the bill without an amendment if they had concerns? In other words, would they, as whistle-blowers, be covered by this legislation?

[Joe Wild]

The legislation provides protection for those who make disclosures who are public servants. Under the act it's a defined term that covers a wide variety of government institutions. It wouldn't go so far as to attach to employees in a foundation if the foundation is not under federal control and a federal institution in the same way we think of departments, agencies, commissions, crown corporations, and those sorts of bodies.

[Paul Dewar, NDP, Ottawa Centre, ON]

So in essence we're leaving out a number of people who would be working on behalf of the federal government--not directly, but certainly in terms of crown research and the delivery, in some cases, of services. They are people who are making their living by way of federal remuneration, but they are not covered by this part of the bill that we would call the whistle-blower act.

[Joe Wild]

Any person can provide information to the public sector integrity officer. Any person can bring forward information that may result in the commissioner undertaking an investigation into alleged wrongdoing within the public sector. There are also prohibitions against employers taking reprisal actions against employees, and those prohibitions have an offence tied to them. That would apply to any employer out there, so there are measures within Bill C-2 that do address persons who are not public servants.

Again, the core protection in terms of a protected disclosure, as it's called under the act, and in terms of access to the tribunal in the case of reprisal--those things are very much about public servants and the public sector; that's the primary purpose of the legislation.

[Paul Dewar, NDP, Ottawa Centre, ON]

Thank you.

[The Chair, Conservative, David Tilson]

We will call the vote on amendment NDP-19.

(Amendment negatived [See Minutes of Proceedings])

[The Chair, Conservative, David Tilson]

You didn't do too well on that one. That's defeated.

Next is amendment BQ-30, on page 148.

Monsieur Sauvageau.

[Benoît Sauvageau, Bloc, Repentigny, QC]

Ms. Guay will introduce the amendment.