Bill C-2 (39th Parliament, 1st Session) Committee on May 10th, 2006

[Benoît Sauvageau, Bloc, Repentigny, QC]

I sat on the committee that studied the code of ethics. At the time, we had been told that the code would restore public confidence. At the time, I asked—and this is virtually the same question—whether public trust had risen in countries and provinces where a code of ethics had been implemented. I suppose we develop legislation so that it is efficient and effective.

I'm asking the question without being convinced that it will achieve this objective, particularly since the Auditor General told us yesterday that there were probably far too many laws, rules and standards. She reminded us that, in the sponsorship scandal, the rules existed, but the government had decided not to enforce them.

Now I'd like to have your opinion on another question. The Conservatives want to pass Bill C-2 quickly. Senator LeBreton, who is the Leader of the Government in the Senate, said she hoped that we would complete the study of the bill, including clause-by-clause consideration, within eight days, excluding the break week. Note that this is a bill with 317 clauses and 250 pages.

You've suggested a number of very appropriate amendments to us. Based on your experience, do you believe that, without resorting to a dilatory motion, the committee could take the necessary time to examine your amendments, those of the person who preceded you and those of the people who will follow you? Do you approve of this expedited approach that the Conservatives want to impose on committee members with regard to passage of Bill C-2?

[Allan Cutler]

That's a hard one for me to answer.

The fact is that there is nothing in place right now. I'm pragmatic and a bit of a realist, and I would rather see a bill that will do something go into power than keep waiting for it forever and hoping that it gets improved.

The other part of it is that every delay could mean it goes down in defeat--it doesn't get passed, and it starts all over again. From a personal viewpoint, I would like to see this get passed.

Now, the issue of fast-tracking is your issue, not mine. I would like to see it passed without undue haste. Whether you call it fast-tracking.... I would like to see a sufficient study done, though.

[The Chair, Conservative, David Tilson]

Thank you.

Mr. Martin.

[Pat Martin, NDP, Winnipeg Centre, MB]

Thank you, Mr. Chair.

Mr. Cutler, I've had the pleasure of having you as our witness many times in many different efforts to try to get whistle-blowing legislation through. Thank you for your continued advocacy and for being a champion on this issue.

I do have notes here, and I remember when you were in front of the government operations committee talking about Bill C-11 last time, clause 55 was one of your concerns. It amended the Access to Information Act to essentially enable government to cloak in secrecy for 20 years any information regarding the identity of the whistle-blowers--which I think is the objective, and the anonymity of the whistle-blower is a good thing--as well as the identities of the accused persons; the details of the allegation of wrongdoing; the details of any action taken to investigate the allegations; the details of any remedial actions taken to prevent future wrongdoings; the details of disciplinary action taken against wrongdoers; the details of disciplinary action taken against whistle-blowers; or the details of retaliation, the actions or retribution against the whistle-blowers.

I'd ask you to speak to this. Do you believe that as a by-product of trying to protect the anonymity of whistle-blowers it's right to close the door on this whole body of information associated with the incident that's being reported, or the wrongdoing?

[Allan Cutler]

A long question and a short answer: no.

[Pat Martin, NDP, Winnipeg Centre, MB]

I'm sorry. It should be the other way around. I understand.

Well, I agree, and I'm very concerned. In Bill C-2 we see that, if anything, there's even greater secrecy created around--

[Allan Cutler]

Is that the access to information part of the bill?

[Pat Martin, NDP, Winnipeg Centre, MB]

Yes.

[Allan Cutler]

I'm not familiar with it, but I believe in an open government and open information.

[Pat Martin, NDP, Winnipeg Centre, MB]

So even though you're probably the country's leading champion of whistle-blowing, you would speak against this secondary consequence?

[Allan Cutler]

If that's the situation again....

I haven't read it, so I won't comment either way, because I don't know.

[Pat Martin, NDP, Winnipeg Centre, MB]

Fair enough.

Mr. Chair, would you mind if I share my time with Mr. Dewar? He had to be out of the room.

[The Chair, Conservative, David Tilson]

You're not even a member right now, Mr. Martin.

[Pat Martin, NDP, Winnipeg Centre, MB]

I know.

[The Chair, Conservative, David Tilson]

Mr. Dewar.

[Paul Dewar, NDP, Ottawa Centre, ON]

Yes. Sorry for that.

Thank you very much for appearing.

I did want to talk about, if it hasn't been touched on already, the section that had been in the previous bill, and I know you had talked about it in some critiques you had provided. That was clause 55 of Bill C-11, referencing section 16 of the Access to Information Act.

In a nutshell, there were concerns you had put forward before that were talking about provisions to enable government to cloak in secrecy for 20 years the information provided.

Mr. Martin might have talked about that already. Thank you.

I'll just then cut to a couple of other things, since he stole my good question.

The other thing I want to talk about, and I've asked this of other whistle-blowers--Mr. Chopra and others--is that when we look at what's in front of us presently, that's one side of the equation, but the other side of the equation is, what about all those whistle-blowers who have already suffered? I had asked in the House and talked to Mr. Baird about compensation for whistle-blowers. I'd like you to speak to that for a moment, and the importance of doing that, to make people whole and to make sure they're not forgotten.

[Allan Cutler]

There are actually two issues involved with that. One is the need to make people whole, and the word that I believe is used is “restoration”. That means restoring to the person what they would have had, with all the privileges and everything going with what they would have had, based on the balance of probability--because you can never prove everything--and making assumptions so that they now are made whole. I agree. That is totally separate from the issue of damages. That's making whole.

The other one, which is equally important to me, is precedent. I mentioned the word “precedent” earlier. No whistle-blower has ever had that happen to them. It would be an excellent precedent for a number of us to have that happen. I would strongly support it because it also gives a strong signal to the future that just because damage was done in the past, it can be fixed; therefore, the ones who have any information and want to come forward will be more likely to do so, because they will see results. Nobody has ever seen a result yet.

[Paul Dewar, NDP, Ottawa Centre, ON]

Am I out of time?

[The Chair, Conservative, David Tilson]

It's very, very short.

[Paul Dewar, NDP, Ottawa Centre, ON]

I'd appreciate your input on that, because as I've said before, it's akin to dealing with the head tax issue and with the residential schools question. I certainly look at the whistle-blowers in the same light and the fact that they've suffered so severely.

I'd look forward to your input on that, and Mr. Baird has asked for that, so we'll talk later, hopefully.

Thanks very much.

[The Chair, Conservative, David Tilson]

Thank you.

Mr. Lukiwski.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Mr. Chair, I'm going to cede my time to Mr. Poilievre.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

Thank you, Mr. Cutler, for all the work you and whistle-blowers like Joanna have done for the cause over the years.

On the issue of the Access to Information Act, Mr. Martin has raised this issue, comparing it to clause 55 of Bill C-11. Clause 55 would have allowed departments to conceal any information related to a disclosure for many, many years. The section we have replaced it with removes that exemption altogether. All information related to a disclosure, all of it, is perfectly accessible under ATI if the Accountability Act is passed, with the sole exception of the disclosure itself--that is to say, what the whistle-blower created and gave over to the commissioner. So there are no new exemptions whatsoever in the Accountability Act for the government or any of its institutions.

I already see the stress level you're under diminishing and you're looking more relaxed now that you've learned that, because that is a very important point and I'm glad you have made it.

Additionally, as it relates to the commissioner himself, the commissioner may refuse ATIs on his investigation. But those are the same exemptions that exist for any investigatory body. All sorts of other bodies that conduct investigations have exactly the same exemptions. So there are no new exemptions in the Accountability Act.

I wanted to put your mind at ease, because I know Mr. Martin's question would have caused you considerable distress. So are you happy to see that clause 55 of the previous Liberal bill has been removed entirely?

[Allan Cutler]

If clause 55 is gone and the information is more open, I'm quite happy.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

That's excellent.

Secondly, on the issue of burden of proof, you've been making the argument for some time that the burden of proof ought not to be on the whistle-blower. And I agree with you. My understanding of common law is that in tribunals of this sort it is predicated on a balance of probabilities. So the burden of proof will not be on the whistle-blower in this tribunal of judges; it will be a balance of probabilities in which both sides will make their arguments and the tribunal will decide.

If it were based on the balance of probabilities, would you agree with that as a fair approach?