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

[The Chair, Conservative, David Tilson]

Good morning, ladies and gentlemen.

This is the legislative committee on Bill C-2, which is the Accountability Act. It's meeting 6.

The orders of the day are pursuant to the order of reference of Thursday, April 27, 2006--Bill C-2, an act providing for conflict of interest rules, restrictions on election financing, and measures respecting administrative transparency, oversight, and accountability.

Our guests today, from the Office of the Commissioner of Official Languages, are Dyane Adam, who is the commissioner; Johane Tremblay, who is the director of the legal affairs branch; and Carol White, who is the interim director of corporate services branch.

Ms. Adam, welcome. If you wish, you could make a few opening comments, and then I'm sure members of the committee will have some questions for you.

[Dyane Adam, Commissioner, Office of the Commissioner of Official Languages]

I will certainly make some comments

Mr. Chair, good morning.

Good morning, everybody.

I'm very pleased to appear before your committee to comment on and answer any questions you might have about Bill C-2 and the proposed Federal Accountability Act. I intend to keep my opening remarks au point so that there is adequate time to answer questions from committee members.

I will comment briefly on four aspects. I will first speak about my role as an officer of Parliament and the importance of strengthening the independence of the roles of all officers of Parliament. I will also talk about the manner in which officers of Parliament are confirmed in their positions, and changes relating to the Access to Information Act and the Privacy Act; lastly, I will speak about administrative changes in the areas of internal audit and procurement.

First, I fully support the notion of strengthening the culture of accountability that underlies Bill C-2. I also strongly support the notion, as set out by the Prime Minister in the federal accountability plan, of strengthening the capacity and independence of officers of Parliament to hold federal departments and agencies accountable. This will ensure that Parliament has access to information and advice from the various officers of Parliament so that Parliament can hold government accountable.

In this regard, I am very much encouraged by the government's announced intention to establish an all-party parliamentary advisory panel on resource requirements for officers of Parliament and to continue a two-year pilot project to give Parliament a greater role in order to respect the independence of officers of Parliament from the government.

As Commissioner of Official Languages and one of the independent officers of Parliament, I act as an instrument of Parliament in ensuring that organizations subject to the Official Languages Act are held accountable to Parliament for fulfilling their obligations under that act. I do this by providing parliamentarians with appropriate information on the implementation of the act by those particular institutions.

On the appointment process for officers of Parliament set out in part 2 of Bill C-2, I strongly believe that officers of Parliament must have, and see that they have, the unequivocal support of parliamentarians. Apart from the secret ballot, the process set out in Bill C-2 is what I experienced when I was confirmed in my position over seven years ago.

On the matter of access to information, I also fully support the government initiative to review the current scope of the Access to Information Act. While making five officers of Parliament subject to the act, Bill C-2 acknowledges the unique role played by these officers, and the need to protect information obtained or created by them, in the course of their investigations, examinations or audits.

The Commissioner of Official Languages is an agent of change and ombudsman. My role is to ensure that federal institutions comply with the intent and spirit of the Official Languages Act in administering their affairs. I receive and investigate complaints against federal institutions about their duties relating to official languages and recommend appropriate corrective measures. In my role as ombudsman, it is important that I protect both the identity of complainants and the information the investigators gather and create in the course of investigating complaints.

In order to allow the commissioner to fulfill such a mandate, Parliament has included in the Official Languages Act specific provisions pertaining to the non-disclosure of information gathered by the commissioner in the performance of his or her duties and functions. Therefore, I am quite satisfied with the new exemption that Bill C-2 is adding in the Access to Information Act. The proposed new subsection 16.1 will allow the Commissioner of Official Languages to disseminate information as widely as possible without undermining the integrity, the credibility, and the effectiveness of the commissioner's investigations, audits, and examination processes.

This broad dissemination of information, accomplished through such vehicles as my annual report to Parliament and in audits, evaluations, and research studies, supports another key role I play, namely that of the agent of change.

The same underlying policy should, in my view, apply with respect to access to information under the Privacy Act. While the government recognizes the need to include in the Privacy Act an exception similar to the one provided in the Access to Information Act, such a non-disclosure provision would apply only to information obtained or created by the Privacy Commissioner or by the Public Sector Integrity Commissioner in the course of their investigations, pursuant to their enabling legislation. Since exemptions provided in the Privacy Act generally mirror those provided in the Access to Information Act, I recommend that the committee adopt a common approach under both acts.

More particularly, I urge the committee to recommend that Bill C-2 be amended in order to include in the Privacy Act a mandatory exemption similar to the new proposed subsection 22.1 with respect to personal information obtained or created by the Commissioner of Official Languages for Canada in the course of his or her investigations, audits, or examinations.

Lastly, my office will be affected by administrative changes proposed in parts 3, 4 and 5 of Bill C-2 in such areas as further strengthening internal audit capacity, and ensuring that low value procurements are fair, open and transparent. I support these changes and I have asked my staff to determine the resource implications of the administrative changes needed to implement these important procedures. I would anticipate that my successor will be presenting any additional funding requirements to the parliamentary advisory panel on funding later this year.

In summary, I am encouraged by and support the proposed legislative changes to strengthen the culture of accountability and to support and strengthen the independence of officers of Parliament, and thereby provide Parliament with the advice and information it needs to make key decisions to support change and hold departments and agencies accountable.

With respect to the new appointment process for officers of Parliament, I would stress the importance of each officer seeing that we have strong support from parliamentarians.

I support the proposed extension of the Access to Information Act to my office and the specific exemptions set out in Bill C-2. I would urge the committee to recommend that Bill C-2 be amended in order to include in the Privacy Act a mandatory exemption with respect to personal information obtained or created by the Commissioner of Official Languages in the course of his or her investigations, audits, and examinations. I look forward to working with the parliamentarians who will be on the parliamentary advisory panel on funding for officers of Parliament, to ensure the continued independence of the officers of Parliament.

Thank you for your attention. I would be delighted to answer any question you may have.

[The Chair, Conservative, David Tilson]

Thank you, Ms. Adam.

I apologize for pronouncing your first name incorrectly at the outset. But don't feel bad: I pronounce the names of most members of the committee incorrectly.

Mr. Owen, go ahead, please.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Thank you, Chair.

Welcome, Commissioner, and your officials. It's always a pleasure to have officers of Parliament come before members of Parliament to discuss our respective roles. I very much appreciate your definition of the role of an officer of Parliament as someone who is really there to be an extension of the work of members of Parliament and to assist us in holding the executive accountable for the various rules and expectations we have of the executive. That characterization is a bedrock to your role, but it is not always understood as plainly as it should be; we sometimes think of parliamentary officers, or ombudsmen, as independent. Of course, you are independent in many aspects of your work, but you have a very, very close and important connection to the relationship between the branches of government, which I think has to be properly understood.

The issue of appointment, I think, is very interesting. The aspect of having a secret ballot and therefore not disclosing the number of votes going one way or the other is an interesting way of supporting the credibility of the office. I'm sure you as the office holder will take comfort from that. That seems to be a very positive addition.

As for the access provisions and your recommended privacy mirroring of it, I agree that they are the mirror of each other. The exceptions to one are the rules of the other, and vice versa. With respect to investigative reports that you might do requiring evidence that you would rely on, I am just wondering if you might be blocked from providing fully reasoned arguments for any strong recommendations you might make in a report after an investigation if, in some cases, you could not identify the source of the information and the actual testimony or evidence provided. I worry about there being absolute exemptions where, in the discretion of the officer of Parliament, it might be felt necessary to provide full information to provide a reasoned recommendation. So I'd be interested in how you would deal with the issue of keeping the source of information confidential and the actual nature of it. Could that restrict the thoroughness of your report?

[Dyane Adam]

I think I understood the sense of your question about there being times when some information that normally would be kept confidential would become available. As I mentioned, our current Official Languages Act does allow for non-disclosure of whatever information we get through the process. When we go to court—because there's a possibility of a court remedy under our act—there is some information that normally would not be released in our reports' evidence, but that will or may.... I don't know if that answers the question.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Certainly, when you get to the court stage to substantiate a particular finding that has a consequence that's being challenged, I would think that would have to be made public.

[Dyane Adam]

Really, we're taking complaints from citizens and from federal employees in matters of service, but also in matters of language of work and career advancement. You can understand that it's a bit like the whistle-blower situation, in that if an employee is reporting a situation in their institution, and even reporting supervisors who are not really abiding by the legislation or who are being discriminatory in their comments at times, or whatever, then the information is quite sensitive, and it would definitely impede our investigation, or even the willingness of employees to put complaints forward, if complainants knew their identities would be recognized or released.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

I would hope that the interplay between the Official Languages Act and the whistle-blower legislation would provide some confidence to the informant to allow you to substantiate your recommendations, and that the whistle-blower legislation would also provide protection against reprisal, so if it became necessary to identify someone to substantiate a complaint and cause a recommendation, that could work in tandem with you.

I think Mr. Tonks had a question as well.

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

Thank you. If I have time, Mr. Chair...?

[The Chair, Conservative, David Tilson]

Thirty seconds.

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

My question is along the same line. Internal audits, external audits, with respect to privacy.... How is it from your perspective? If they are excluded or included within the Privacy Act, then there would be no follow-up. I don't understand why you would include internal audits. They should be a matter of public record, should they not? Or external audits, I should say.

[Dyane Adam]

External audits? With respect to what? Are you talking about external audits on our office?

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

Yes.

[Dyane Adam]

This is open right now.

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

I'm reading page 5 with respect to your point coming under the Privacy Act, and you said audits or examinations.

[Dyane Adam]

Okay. Those are our own audits. When we go into institutions, we do audits. We have the power. The Commissioner of Official Languages, in fact, has a number of powers, compared to the Auditor General, who only does audits. We do audits. We do take complaints from the public or public servants, so we react to specific situations that are being raised in my office. This is more the ombudsman role, and we do examinations.

[The Chair, Conservative, David Tilson]

You'll have to carry this on in the next round, Mr. Tonks.

Monsieur Sauvageau.

[Benoît Sauvageau, Bloc, Repentigny, QC]

Ms. Adam, I would like to wish you, and those who have accompanied you here today, a warm welcome. I would like to congratulate you on your latest report, as well as on all of the work which you have done throughout your mandate, which has been thoroughly exemplary. I am sure that I am speaking on behalf of all parliamentarians in saying so. You deserve our most heartfelt congratulations.

I appreciate the fact that you have proposed some amendments in your brief. I would like to provide you with a concrete example relating to the Privacy Act, which is discussed on page 4 of your brief.

Let us take the example of the citizen or member of Parliament who tables a complaint about a department. Were the complaint to be deemed admissible, and were you to provide a report on it, you would inform the complainant that, given that his complaint was related to part V of the Official Languages Act, he would be entitled to seek redress before the Federal Court of Canada. This is just an example. In this case, in the interest of impartiality, the documents that you would use to prepare your report would remain confidential until the case had been heard by the Federal Court.

Am I correct in my understanding of the process?

[Johane Tremblay, Director, Legal Affairs Branch, Office of the Commissioner of Official Languages]

In fact, when a plaintiff exercises his right to a legal remedy, he usually bases his complaint on the investigation report, which constitutes a basic element of evidence if, of course, the report is favourable to the plaintiff and deems that his complaint is well-founded.

If the plaintiff wants to obtain more information from the file, he can turn to the commissioner's office to get them. Besides this, the legislation gives us the authority, in specific cases of legal remedy, to transmit information that we should normally not disclose.

Section 73 of the Official Languages Act allows us, when there is a legal remedy, to disclose this information.

[Benoît Sauvageau, Bloc, Repentigny, QC]

Thank you.

On the other hand, should the documents of a department that has been audited remain confidential? Are these documents accessible through the Access to Information Act? Is the information from any given department, on which you have based your report, protected or accessible?

[Johane Tremblay]

The information can be accessible if there is a legal remedy involved. Under those circumstances, the commissioner can provide them, at his discretion. On the other hand, this does not mean that all the information will be automatically disclosed.

[Benoît Sauvageau, Bloc, Repentigny, QC]

Thank you very much.

You state in your notes: “[...] I urge the committee to recommend that Bill C-2 be amended [...]”, and this is very clear. However, could you draft a specific amendment and send it to the committee through our clerk? It would be greatly appreciated.

[Dyane Adam]

We could surely do that, if that is what the committee wants.

[Benoît Sauvageau, Bloc, Repentigny, QC]

I do not know if that is what the committee wants, Madam Commissioner, but it is certainly what I want.

[Dyane Adam]

I understand, Mr. Sauvageau.