Bill C-2 (39th Parliament, 1st Session) Committee on May 11th, 2006

[Dyane Adam]

Mr. Chairman, it reminds me of situations in court where there is financial compensation. In many cases, the judge will determine the amount of the compensation. But I don't know why in this case the government chose to award a financial reward. In my opinion, we should debate the very reason for having a financial reward.

[Monique Guay, Bloc, Rivière-du-Nord, QC]

Thank you.

[The Chair, Conservative, David Tilson]

Thank you.

That concludes our time, Ms. Adam. I thank you and your colleagues for coming to help us today.

Thank you very much.

[Dyane Adam]

And we'll send you, as I believe two of your members have requested, a proposed amendment.

[The Chair, Conservative, David Tilson]

If you could send that to the clerk, that would be most helpful.

[Dyane Adam]

Okay. Thanks a lot.

[The Chair, Conservative, David Tilson]

Thank you very much for coming.

We'll recess for a couple of minutes.

[The Chair, Conservative, David Tilson]

I call the meeting to order again.

Ladies and gentlemen, if we could all take our seats, we have with us for our second witness this morning the Public Service Integrity Officer, Mr. Edward Keyserlingk, from the Public Service Integrity Office.

Good morning, sir.

You have someone with you this morning. Perhaps you could identify that person to the committee.

[Dr. Edward Keyserlingk, Public Service Integrity Officer, Public Service Integrity Office]

Good morning.

I would like to introduce Maître Jean-Daniel Bélanger, who is my senior counsel, who is sitting at my right.

[The Chair, Conservative, David Tilson]

Sir, I know you know the procedure, but if you are prepared to, please make a few comments if you wish. After that, the committee members will have some questions for you. I thank you again for coming.

[Dr. Edward Keyserlingk]

Thank you, Mr. Chairman, for your invitation to appear before your committee this morning to testify on those parts of Bill C-2 that apply to the past, but not yet proclaimed, Public Servants Disclosure Protection Act.

Thank you for giving me the opportunity to answer your questions. In order to give you enough time to ask them, I will keep my preliminary remarks brief. I've distributed a short written presentation in which I present seven specific proposals to amend Bill C-2 with regard to the Public Servant Disclosure Protection Act.

I am very pleased with the Public Servants Disclosure Protection Act. In my view, on the basis of my almost five years of dealing with public servants and whistle-blowers, it effectively reflects the proposals that I and many others have been making for some years. The prospect that my policy-based and relatively weak Public Service Integrity Office will soon be transformed into a legislated agency with a commissioner reporting to Parliament, and equipped with strong investigative powers and protections, is exciting and very welcome. As you are no doubt aware, Mr. Chairman, the Public Servants Disclosure Protection Act in effect mandates that my office be the nucleus of a new and expanded commission. My colleagues and I have been working very hard on transition matters to ensure both continuity of investigations and the required new structures and processes.

If I may be permitted a personal note, one reason for my pleasure is that once the PSDPA comes into effect, my original mandate of three years, which has become almost five years, will end and I can finally go back to retirement, which I left five years ago.

Of course, the Public Servant Disclosure Protection Act is not perfect. In my opinion, the amendments proposed by Bill C-2 are quite significant, and I fully support them. In my written presentation, I indicated various aspects of the bill which I found positive.

But of course Bill C-2 is also not perfect, and I have a number of proposals to make towards further amendments. For the most part, I made the same or similar proposals in my annual reports and in testimony to the parliamentary committee considering what at that time was Bill C-11. You will find, Mr. Chairman, more detail in support of those proposals in the written submission.

My proposals are the following:

1) Extend fuller protection from reprisal to private sector contractors and grant recipients who report public sector wrongdoing, by providing them with access to the reprisal complaint process available to public servants;

2) Expand the definition of what constitutes reprisal in order to cover more than only employment or work-related forms of reprisal;

3) Extend the jurisdiction of the Public Sector Integrity Commissioner to include the Canadian Forces, the Canadian Security Intelligence Service, and the Communications Security Establishment;

4) Add an education/communication mandate to the role of the Public Sector Integrity Commissioner, which, once that mandate is legislated, would enable the provision of adequate funding and other resources for that task;

5) Enable investigations of public service wrongdoing to extend beyond the public sector when relevant;

6) Authorize the commissioner to access, in the course of an investigation of public service wrongdoing, any relevant information, including departmental documents protected by solicitor-client privilege, and cabinet documents;

7) Regarding access to information, without being excessively technical here, my position is threefold. The identity of whistle-blowers should remain shielded, as provided for in Bill C-2. However, the identity of wrongdoers, including those found to have practised reprisal, may be disclosed in the public interest. The third part of this proposal is that any other information gathered in the course of the investigation may become accessible once the investigation is complete.

Thank you, Mr. Chairman.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Keyserlingk.

Mr. Owen, go ahead, please.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Thank you.

Welcome, Mr. Keyserlingk.

Most of us have watched your current retirement years with great interest over the last few years and are grateful for your sacrifices in putting your shoulder against this particularly heavy wheel. Thank you for your persistence in this important role.

I'm very interested in the education and communications side of your recommended extended mandate, particularly from the point of view of attempting in public administration, as best we can, to avoid, first of all, the problem of wrongdoing, and then when wrongdoing occurs and someone feels compelled to report on it outside the normal channels, protecting the person from reprisals.

I am wondering, from your experience over the last few years, how the education of the public service, and in particular of public service management, has been progressing with respect to internal channels of complaint. Are we here faced with an integrity commissioner who is challenged to really go into the public administration and shake it up and restore it and recommend the implementation of a large number of channels of complaint that are fairer, more protective, and more welcoming to the public servant? Or are we looking at a residual office that on the rare occasion when the internal workings don't work can be looked to with safety and toward an effective result?

It relates to education and communication, but also to the core role here. Would this commissioner effectively be inside the public service, even with independence, and involved in daily scrutiny, or is this a safeguard to use when things that usually go right might go wrong?

[Dr. Edward Keyserlingk]

Thank you for the question. It is a very good one.

I would like to think that the Public Service Integrity Commissioner ought to be both of those things and very much involved in the exercises involving training, teaching, educating, cajoling, and all sorts of things of that kind, because if the experience of the Public Service Integrity Commissioner is anything like mine has been, one has a special vantage point, in a sense, for seeing what kinds of reasons lead to people whistle-blowing. Very often, the cause turns out to be some degree of lack of leadership, some degree of lack of accessibility on the part of managers, some degree of managers not remaining in positions long enough to gain the confidence of their staffs, and issues like that. I feel that the person who has that job will be in a very special position to be able to say that he or she would like to contribute to efforts to instill better leadership, identify wrongdoing at an earlier point, deal with it within the departments, and so on.

Those are things that, in my view, go very well with this position.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

I'm very pleased to hear that, because I share the opinion that your type of office, or the office that this is going to become, is a unique repository of systemic problems. Over time it can analyze complaint trends and practice difficulties and have a broad and longitudinal view of what may go wrong systemically, and therefore can make recommendations, quite apart from any specific ruling on a specific complaint or concern.

[Alan Tonks, Liberal, York South—Weston, ON]

Thank you.

Thank you for the very confident nature of your report.

I wonder, Mr. Keyserlingk, if you could just explain recommendation 5, “Enable Investigations to Extend Beyond the Public Sector”. That really flows through to providing the integrity commissioner with access to relevant information.

Is that a power that you see...? You cited the Auditor General, who has been given this authority, if you will. Are you talking about the same architecture that is available to the Auditor General, or are you talking about more...I'll use the terms intrusive or invasive powers? I don't mean that in a judgmental sense. When you talk about matters of integrity, as opposed to matters of numbers, there's a difference.

Could you just comment on the likelihood of that happening?

[Dr. Edward Keyserlingk]

Sure. I think it could be similar to what is envisaged for the Auditor General.

The argument that I think counts here is that if one does not provide the Public Service Integrity Commissioner with the ability to follow the trail of evidence about public service wrongdoing, there is a limitation imposed that would potentially interfere with the investigation and would typically result in an incomplete investigation. It could be that the responsibility for the activity is a shared one between, say, a department or an individual public servant and, on the other hand, someone outside the public service. So if one cannot follow the evidence, one would be forced to say, “We've got to end the investigation because it would be unfair to come to a conclusion.”

We're talking here, of course, only about instances where there has been a disclosure of wrongdoing, either within the department or from outside the public sector. The difficulty, as I say, is that if one does not have that ability, one can envisage investigations having to be essentially ended without a firm conclusion.

[Alan Tonks, Liberal, York South—Weston, ON]

Perhaps I may follow up on that. Where there's criminal activity, is there not access to court proceedings, a judicial proceeding?

[Dr. Edward Keyserlingk]

Where there's criminal activity, it would always be the obligation of the commissioner to turn that over to the police. We'd be talking about other kinds of wrongdoing--gross mismanagement, breaking of laws and regulations that are not criminal, and so forth.

The problem here is partly that if you look at sections 33 and 34 of the disclosure act, on the one hand, one is entitled as a commissioner to receive information about public service wrongdoing from outside and act on it--one can receive a complaint, an allegation, from a person in the private sector--but then section 34 says one can't follow that up effectively because one has to turn it over. The two sections, in my view, are at odds because one says we can take an allegation from outside and the other says you can't really effectively do anything with it. If you get it from outside, you normally would want to do as you do within the public service--question the discloser, look for witnesses outside as well, test the documents that are being provided--but all of that can't really be done. So you have two very good sections, but they're at odds, in my view.

[The Chair, Conservative, David Tilson]

We'll have to explore this in another round.

Mr. Sauvageau.

[Benoît Sauvageau, Bloc, Repentigny, QC]

Mr. Keyserlingk, thank you and welcome. First, thank you for having inspired Bills C-25 and C-11. The entire legislative process which was created to provide protection for public servants comes from you in your capacity as Public Service Integrity Officer. Thank you also for the seven proposed amendments; I believe they are important.

With all due respect to the witnesses we heard from earlier and to those we will hear in the future, I would say that you are probably the person who has been most directly involved in this bill. That is why your amendments will surely be relevant.

I will read a passage from your presentation and will then ask you several questions. You say:

In addition, the establishment of a Public Appointments Commissioner, to establish rules and standards for open competitions and processes [...] will be free of conflicts of interest, partisanship or patronage, is another positive feature of Bill C-2 [...]

The Prime Minister, in Bill C-2, proposes the creation of the position of Public Appointments Commissioner. While we were debating, the government decided to create this position immediately, with the probable expectation that corrections or amendments would be made in committee. Therefore, it would be possible to immediately apply certain provisions of the bill and then to make changes once Bill C-2 is promulgated.

I would like to know what you think about the request made by 11 unions representing nearly 100,000 public servants — and perhaps what you think about your request to go back into retirement — and about the immediate application of Bill C-11. In your view, would it be heretical to support the immediate promulgation of Bill C-11, which dates back to the previous session, and then to make any amendments to the legislation through Bill C-2? Does that create too many problems?

[Dr. Edward Keyserlingk]

May I respond in English to make sure I don't miss anything?

I think, in principle, it would be an interesting approach, and I did read the union's request in that regard. I think it could, on the other hand, be quite complicated because of the very different nature of the process involved in the amendments of Bill C-2 compared to the disclosure act, and, in my view, the interim period could be quite complicated. I'm not sure what would be gained.

Now, I don't have a firm opinion on that, but when I read their view, it seemed to me that could be a big complication, because the whole process of the tribunal, which is part of Bill C-2 versus the boards, is part of Bill C-11 and so forth.

[Benoît Sauvageau, Bloc, Repentigny, QC]

Indeed, you are right, that is the main difference. There is the tribunal, the third parties, what I was going to call the trivial matters, in other words the $1,000 giveaways handed out regardless of what was actually done, etc. However, even if Bill C-2 is adopted relatively quickly, I still think there is a long delay between Bill C-11 being enacted and a situation making its way to the tribunal.

For example—and I am not judging how quickly the work was done, because it was complex— I lodged a complaint with the Commissioner of Official Languages June 10, 2003, and I got the final report May 4, 2006. So, if you think about the time it would take between someone blowing the whistle tomorrow morning and the case being looked at by the tribunal—and this is assuming Bill C-11 was enforced and the process was established—Bill C-2 would have passed, and been amended.

Regardless of all the good will any Integrity Commissioner may have, I do not think that in the space of two weeks, he would be able to carry out the entire process and get people before the tribunal.

Am I wrong here?

[Dr. Edward Keyserlingk]

I think you're probably correct on that. I think the other issue might be, however, that when you receive allegations from whistle-blowers you will always try to explain to them what the process will be, how this will be investigated, what recourses you have, what appeals, and so forth. Of course, that would be a little complicated, because you wouldn't know when the other bill was going to come into effect.

Theoretically, what I would love is that all the provisions that apply to the Disclosure Act be approved, passed, and enacted before all the rest of it is done, but of course that's a wish that is not within my control. But I think if that could be done, that would possibly be a more effective approach because you would have the bill that applies to the Disclosure Act pulled out of the larger Bill C-2 and enable the Disclosure Act to be proclaimed with all the new amendments. But that has its complications, too, I understand.

[Benoît Sauvageau, Bloc, Repentigny, QC]

Up until last month, were a public servant to witness an act of wrongdoing, he would have to wait one, two, three, even five months—the time required for the committee to complete its hearings—before being able to file a complaint, knowing full well that all that was lacking was a willingness on the part of the government to get Bill C-11 enacted. What is more, by that time, and after having heard Mr. Cutler and the woman we heard from yesterday, he may think that it is a little bit too complicated and dangerous and decide not to make a complaint. On the other hand, if there were a safety net then and there, imperfect as it may be, he could go ahead and blow the whistle. And I think the message would be clear to the government.