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

[Dr. Edward Keyserlingk]

As I say, I'm not personally opposed to it; I'm only a little bit concerned about the possible complications.

I guess a third option would be that it gets passed very quickly and the whole of Bill C-2 gets put in. That also isn't within my control, but I take your point. I think there are pros and cons about that. My point is only that I think there would be complications with it in the interim and one wouldn't know how long that might be.

[The Chair, Conservative, David Tilson]

Thank you.

Mr. Martin.

[Pat Martin, NDP, Winnipeg Centre, MB]

Thank you, Chair.

Welcome, Mr. Keyserlingk.

For the record, I should start by saying we have a press release from the Public Service Alliance, which also feels that implementing Bill C-11 at this time, while we're working on Bill C-2, could be so complex that they, the largest public sector union, don't approve.

Bill C-2, of course, is just one in a series of numerous efforts to do something about whistle-blowing, from private members' bills to internal policies, to reports and various government members' bills that I've been involved with, from Bill C-25 through Bill C-11, and now Bill C-2.

Through that process you've been very helpful in making recommendations. Are you satisfied that in Bill C-2 the key recommendations that were a theme throughout most of your reports to the committee have been addressed--the powers of the commissioner, for instance?

[Dr. Edward Keyserlingk]

Yes, I am satisfied that the basic powers and protections available to the commissioner are the right ones. There are, as I say, a few points I've raised here that I think would improve the bill considerably and go back to issues that I and others have advocated for some time.

One of them is the issue of transparency, which covers the aspects of access to information that I've raised here. It's terribly important that the office in no way be seen as hiding information that can and should be made public. I think Bill C-2, in its present state, might give rise to that kind of accusation. I don't think it's required for this office, and I've specified why certain things could be changed.

The other aspect is the access of members of the public to the commissioner, which I think is very strong in Bill C-2. That's a very good statement of access, and also the issue of protecting contractors and grant recipients from reprisal. But again, there I think it would be better to go a step further and say those people ought also to have access, not just to the offence that is there, but also to the reprisal mechanism that is available to public servants. Otherwise you leave those people a little bit less protected, because they would have to convince the police to lay a charge. The charge would be essentially about a criminal offence and therefore subject to a criminal standard--

[Pat Martin, NDP, Winnipeg Centre, MB]

A much more complicated avenue of recourse.

[Dr. Edward Keyserlingk]

--which is much more complicated, as opposed to an administrative inquiry within the commission. I don't see any constitutional or other reason that process couldn't be made available to contractors and grant recipients who have been dealing with government, because that's access that we allow in lots of other statutes as well.

[Pat Martin, NDP, Winnipeg Centre, MB]

That actually is one of the strongest things that the Conservative members of the last committee pushed for to be in Bill C-11. I think they dropped it towards the end, but that was of great interest to them at that time.

I don't wish to interrupt you, sir, but I have such little time and I do want to get your opinion. You've made very helpful comments on what else might be added to Bill C-2, but you haven't commented on things you may wish had been left out. For instance, what's your view of this $1,000 monetary reward issue? Do you think that would actually bring forward more information to your office, or would it be neutral? What's your view?

[Dr. Edward Keyserlingk]

I very much doubt that it would bring forth more. I would rather it not be there. It seems to me that we have a better appeal to public servants than the $1,000, which is that public servants will hopefully see it as their duty to report serious wrongdoing, and not because they're being rewarded. I think that fits, in fact, with what most public servants see.

The reason they may not come forward, I think, is not because there isn't a reward, but because of fears of reprisal, and so forth. If those are fixed, as I think they are largely fixed now, we won't need a reward, and it's a kind of motivation that I would hope we don't have to appeal to.

[Pat Martin, NDP, Winnipeg Centre, MB]

I share that view too.

First of all, the sum of $1,000 is probably too paltry an amount for someone to risk—

[Dr. Edward Keyserlingk]

Yes, $50,000 might make a difference—

[Pat Martin, NDP, Winnipeg Centre, MB]

—but it's still the wrong motivation.

[Dr. Edward Keyserlingk]

My point would be more the principle of it. I think whatever the amount is, it really ought not to be the reason why people come forward. I don't think people do require it. I haven't seen any evidence of that anyway.

[Pat Martin, NDP, Winnipeg Centre, MB]

I agree.

With the volume of complaints in your office recently, I think your most recent report cited, of 30 or 40, only about three that you had found actually had merit that you moved forward with.

I guess what we're all trying to estimate is how much pent-up volume of activity is out there waiting until it's safe to come forward. Are there people sort of hiding behind bushes waiting until it's safe to come out into the air?

[Dr. Edward Keyserlingk]

I really don't know the answer to that. We're probably in the worst position to know how much wrongdoing there is and how many people would like to come forward but don't, because we respond to complaints, as opposed to going out looking for them.

On the other hand, I think it's reasonable to assume, just from the people we have talked to who have considered sometimes coming forward but have not because the process does not look safe enough or protective enough or effective enough, that there probably are people who would come forward but would not come forward in the present regime, because it's perceived as not effective and protective enough.

I can't, however, give you numbers, but I would expect there might be such persons. Again, I don't know how much wrongdoing there is; therefore, I don't know how many people should come forward. I don't think there will be and I have no reason to think there will be a flood of disclosures, partly because I haven't seen evidence that there is a massive amount of wrongdoing in the public service. I have not seen that, so I cannot say that there are necessarily a lot of pent-up disclosures. But I think we ought to be able to say to public servants that no matter how many people actually use the system, it ought to be available; then we ought to say, here is how to access it, and furthermore, here are alternatives.

[The Chair, Conservative, David Tilson]

Thank you.

We have to move on, Mr. Keyserlingk.

Monsieur Petit.

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

Good morning, Mr. Keyserlingk.

In your brief, you talked about retaliation. Other witnesses have also done so. Apparently, the fear of reprisals is the main reason why public servants refuse to blow the whistle; they are always afraid it will come back to bite them.

In your text, you mentioned that you would like individuals to be protected even outside the workplace. For example, reprisals may occur outside the workplace.

Can you give me an example of what you mean when you refer to ostracism in a group?

[Dr. Edward Keyserlingk]

I understood your question, sir, but I'm trying to understand whether we actually said that in that way.

What we meant was we would like to see a wider definition of reprisal that covers instances of reprisal that are not captured within the employment-related context; in other words, those that are not related to their work conditions or their employment contract, but could be something much more subtle.

For instance, you could have people who are essentially shunted aside. They're not being denied anything overtly that they're contractually entitled to, but they're still being marginalized, and over time, it becomes clear, to them at least—that's their claim—that this would not have happened if they had not made a disclosure of wrongdoing.

Our view is that the list of things that apply to define reprisal is too limited to the workplace context. I'm not talking about reprisal outside their professional life, but simply saying that within their professional life there could be conditions that amount to reprisal but don't specifically refer to their contractual arrangements or their workplace. The example I always use is the ostracization, the sort of marginalization where somebody is no longer taken seriously or isn't advancing very quickly, and it's not clearly a denial of an entitlement, but it looks as though it would not have happened if they had not disclosed it. That's the claim we have to investigate. So the list within the reprisal definition is what we're really attacking here.

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

You give a slightly broader definition of group ostracism. However, section 19 of Bill C-11 refers to reprisal, but does not cover reprisal made by a union against one of its members who may have revealed something about another unionized employee. For example, when the whistleblower goes to a union meeting, he may be called a sell-out or a traitor, etc.

Won't the new bill, Bill C-2, address that problem?

[Dr. Edward Keyserlingk]

I don't think that's changed, because what it doesn't apply to is wrongdoing within the union. It has to be wrongdoing within the public service. So it doesn't cover that kind of example, not within Bill C-11. There are other recourses that person may have, but not to this particular approach.

Do you see what I mean? The whole focus of this bill and the disclosure act is on the assumption that the wrongdoing is within the public service. It's not just wrongdoing by a public servant in a union; it has to be within the context of the public service.

If you're suggesting that could change, that's a different issue. But right now that would not apply.

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

Perhaps I phrased my question poorly.

Take for example an individual who blows the whistle on a colleague who is a member of the same union as him. Now, let's suppose the whistleblower then lodges a grievance because he was transferred to avoid any reprisals. Because he went and blew the whistle on a colleague, his grievance ends up at the bottom of the pile.

[Colleen Beaumier, Liberal, Brampton West, ON]

That is a very interesting question we have not looked at from that angle. Mr. Keyserlingk's submission sought to broaden the definition of reprisal to any measure which may affect the grievant, i.e., the person who filed the complaint. You raised the possibility of his union taking an anti-union measure or acting inappropriately by refusing to represent the grievant and process his grievance. That goes far beyond what we had envisaged. We were thinking more about a measure taken by the employer, or the complainant's colleagues, which would end up affecting him in his job and which is not included in the definition given for disciplinary measures.

[The Chair, Conservative, David Tilson]

We have time for one more question, Ms. Jennings, and you have won the prize--for five minutes.

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

Thank you, Mr. Chair.

Thank you very much for your presentation. Are there any interim provisions included in Bill C-2 which stipulate that the complaints you are currently hearing will, after royal assent, henceforth be heard pursuant to Bill C-2? In other words, will all these provisions to protect whistleblowers apply retroactively to files you are currently processing or which may be referred to you before royal assent is given to this bill?

[Dr. Edward Keyserlingk]

I think the answer is yes.

[Jean-Daniel Bélanger]

In the Public Servants Disclosure Protection Act, there is indeed a provision which provides for a transition between our office and that of the commissioner.