Bill C-2 (39th Parliament, 1st Session) Committee on May 16th, 2006

[Michèle Demers]

I can tell you that the Professional Institute has spent hundreds of thousands of dollars in representing whistle-blowers, and continues to do so. So $1,500 is peanuts and it goes nowhere. I can tell you that much.

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

No, I agree. I'm just trying to determine whether or not you wanted it open-ended or if you think it would be necessary to put a cap on it.

[Michèle Demers]

It depends on the case. I hesitate to put a cap because it could be $10,000, it could be $15,000, it could be $20,000. I don't know. It depends on the magnitude of the case.

I wanted to comment on what you said before and now I've lost it.

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

I was saying that I don't understand why you're opposed to having members be given a choice. If the labour relations board was absolutely, in the minds of your members, the best route to go, they would automatically choose that, so what's the problem with giving them a choice?

[Michèle Demers]

I just wanted to caution that the process for whistle-blowers needs to be simple and straightforward; it cannot be convoluted. Already it's difficult for members to come forward, to build up the courage to blow the whistle on any kind of situation. There has to be a clear path in front of them that they're comfortable with. To me, to have choices already makes it a little bit more convoluted.

In addition to that, the board currently would not be a choice, for example, for damage for pain and suffering because they don't have that authority. So they would have to go to the tribunal. So it would not be a choice.

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

Unless we amend the legislation, as per your suggestion.

A final question, and I know we've only got a few seconds left.

[Edith Bramwell]

I'd like to comment on that one issue you raised.

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

Oh, certainly.

[Edith Bramwell]

I think you really have to draw a distinction between unionized workers and non-unionized workers. There are some non-represented workers in the federal public service who would not have the right to go forward to the Public Service Labour Relations Board. Certainly, although we obviously don't represent those people, we would like them to have access to a tribunal. We just don't feel that the tribunal has the labour relations expertise needed to deal with these issues, and we're deeply concerned by the fact that discipline can be awarded by that tribunal, and the labour relations board has no role to play in the consideration of that discipline.

[The Chair, Conservative, David Tilson]

Both clocks are going off and Mr. Dewar hasn't had a chance yet to speak. Do we have unanimous consent that Mr. Dewar can speak?

[Some hon. members]

Agreed.

[The Chair, Conservative, David Tilson]

Mr. Dewar, you have five minutes.

[Paul Dewar, NDP, Ottawa Centre, ON]

I'll try to be brief.

When we're referring to and I think we're getting a bit of a consensus on the understanding of what the issues are vis-à-vis the tribunal versus the Public Service Labour Relations Board, I hope we can make some more progress on that, because I think that's bringing people up to date on what the labour relations board does and perhaps by default what the tribunal's role is or isn't.

I'd like to touch upon the whole issue of ensuring that protection is provided for everyone, and I note here, in terms of the PSAC submission, who's not included. Of course, when you mention the Canadian Forces, CSIS, and so on, there will be the national security spectre as an issue, and I'd just like your comments on that.

The other thing I want to touch on is that when we look at whistle-blowers and you go back to the reason people blow the whistle--and I can go back to the Health Canada example--the fact of the matter is the billions of dollars that could have been saved if they had been listened to, never mind public health, that acknowledgment after the deed has been done and there has been acknowledgment that there has been wrongdoing. One of the concerns I have here, and this is to contemplate, is what happens after the fact. We've heard from others who have blown the whistle and said it has been extremely isolating. They've paid the price, and it's not a material equation they're looking at but also the mending, making one whole. That's just a comment.

One last thing is that when we look at what was stated by others around the table about the best place to go in terms of where remedy can be sought, I think the issue is about what octane everyone is flying on. That's the same when you're talking about legal representation. So I think the argument is a correct one, to say it might be tricky to put a cap on it, because as I think you've mentioned before, Ms. Demers, if you look at the Department of Justice and at Joanna Gualtieri's case, they have a lot of lawyers and she was on her own. I think that's important to keep in mind, that it's hard to put a dollar on it when you have a whole department, with the legion of their staff, compared to one person on his or her own or even with the representation of a union. It's not an equal playing field, and I think that has to be noted.

But I was curious about the exemption, if you could answer that, please.

Thank you.

[Edith Bramwell]

Under the legislation as proposed, there is absolutely no public access to any investigation that is made by the public service integrity officer, which is something we're quite concerned about, and as I'm sure the members of the committee are aware, the Information Commissioner has raised a real red flag around that issue. I think in most cases that's entirely inappropriate, and the Public Service Alliance of Canada does not support that.

However, in the case of the Canadian Forces, CSE, or CSIS, it may be that a restriction like that is appropriate and necessary in order to allow an investigation of wrongdoing to occur but still protect what may be sensitive information that concerns public safety and issues of national security. So I don't think those areas should be shielded from accusations of wrongdoing simply by raising the spectre of national security. There are ways the national security issue, which is certainly an appropriate one, can be addressed and handled.

[The Chair, Conservative, David Tilson]

Thank you very much.

Mr. Dunn.

[Jamie Dunn]

I have just one quick comment.

We have thousands of members who work at DND, and they've raised this over and over again: where do they stand? If the forces are excluded, but DND isn't, and DND deals with such matters of national security, then when do they know it's safe to go forward? When do they know that one of these red flags isn't going to be brought up? What if one of the people they need to blow the whistle on is a member of the armed forces but acts in a supervisory role to them, which is very common?

So they have a lot of concerns about where that arbitrary line gets drawn and how they're protected if suddenly those issues are raised to exclude what they're trying to bring forward in the process.

[Edith Bramwell]

Certainly Bill C-11 was amended in order to bring the RCMP off the list of exemptions. It would seem to me that the same rationale could apply to any of these other three organizations. We don't see why they're excluded.

[The Chair, Conservative, David Tilson]

Thank you very much, ladies and gentlemen, for coming and spending some time with us this morning.

The committee will suspend for a few moments.

[The Chair, Conservative, David Tilson]

I'd like to reconvene the meeting, ladies and gentlemen.

Our final guest this morning is the Office of the Chief Electoral Officer, and we have with us the Chief Electoral Officer, Jean-Pierre Kingsley, and the deputy chief electoral officer and chief legal counsel, Diane R. Davidson.

Good morning to both of you.

We'd be pleased to hear a few preliminary comments, if you have any, and then members of the committee will perhaps ask some questions.

[Jean-Pierre Kingsley, Chief Electoral Officer, Office of the Chief Electoral Officer]

Thank you, Mr. Chairman.

I do have a few comments, but they won't exceed the ten-minute time allocation.

My presentation will focus on five main topics: the appointment of returning officers, the proposed contribution rules, the application of the Access to Information Act to my office, the prosecution of election offences by the Director of Public Prosecutions, and the proposed treatment of gifts.

Bill C-2 will transfer the authority for the appointment and termination of returning officers from the Governor in Council to the Chief Electoral Officer. This is consistent with recommendations I had been making since I became Chief Electoral Officer. The bill provides that this transfer will take place after royal assent on a day specified by the Governor in Council.

As I will be ready to implement this new authority well within the six-month period following royal assent, the committee may wish to consider the appropriateness of providing for the traditional Canada Elections Act formula for the coming into effect of these provisions; that is to say, six months after royal assent, unless the Chief Electoral Officer announces he is ready to implement them earlier, which I will.

The bill proposes to remove the current ability of corporations, trade unions, and unincorporated associations to make contributions to the local level. This will greatly simplify the eligibility rules.

The bill would also change the existing cap on contributions by individuals from $5,000 to $1,000 to registered parties per year, and a further $1,000 in total per year to the candidates, the registered electoral district associations, and the nomination contestants of a registered party. That means $2,000 per year.

Contributions to leadership contests, which would be reduced to a maximum of $1,000, would remain separate from all this, which means that in a year like this year, the Liberal Party would be $3,000.

The bill's provisions respecting contributions would come into effect on royal assent, which presupposes there is no need or opportunity for Elections Canada to inform the public of the change.

The bill proposes to make the Office of the Chief Electoral Officer subject to the Access to Information Act. The only specific electoral access exception proposed by the bill provides that the Chief Electoral Officer shall refuse any request to disclose a record that was obtained or created in an examination or review under the Canada Elections Act.

The Canada Elections Act currently expressly prohibits access to specific election documents after an election without the consent of a judge. The committee may wish to consider maintaining this current protection—

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

Could you slow down a little bit? I'm finding it difficult to follow the interpretation.

[Jean-Pierre Kingsley]

All right, but you have the document in front of you.

Mr. Chairman, I will speak more slowly.

The committee may wish to consider maintaining this current protection afforded election documents and, in addition, providing that the Commissioner of Canada Elections be recognized in the act as an investigative body so that his investigations will have the same protections respecting access afforded to other bodies performing a similar investigative role respecting offences.

It should be noted that Parliament has long recognized the vital importance of public access to information in the democratic process. Elections Canada was first made subject to a broad right of public access to almost all electoral matters in 1927. It may have been the first federal institution that recognized the importance of access rights, which are vital for public confidence in the electoral process. However, that same public confidence has traditionally resulted in such access rights being tailored to the specifics of the electoral process within the elections statute itself.

For these reasons, in its deliberations, this committee may wish to consider expanding access rights to electoral matters through the Canada Elections Act rather than through the application of the generic Access to Information Act to elections. If it is the wish of the committee, I could suggest some amendments to the Canada Elections Act which would meet this need.

Bill C-2 transfers the responsibility for the prosecution of offences currently conducted by the Attorney General to a new organization, to the Director of Public Prosecutions, or the DPP. Prosecutions of offences under the Canada Elections Act, which currently are the responsibility of the Commissioner of Canada Elections, will also transferred to the DPP. The commissioner will continue to conduct investigations and pursue activities, but alleged breaches of the Elections Act will be referred to the DPP. The DPP could therefore be subject to the directions of the Attorney General. The current legislation does not allow for this situation in the case of the commissioner. That is the sole difference.

My last prepared comments will be in respect of the proposed Canada Elections Act provisions respecting gifts to candidates. In my view, in order to achieve the purpose of this statute, the gifts provisions should be redrafted. I will leave the committee notes on how this redrafting may be carried out. In fact, I will leave with the committee a series of minor amendments. I will discuss them shortly.

This redrafting is necessary in order to avoid some contributions being considered gifts and having to be reported two or even three times. Redrafting could also ensure that gifts are reported by candidates for the entire time that these candidates are collecting contributions rather than simply the 36 days of the election period or from the date they may be nominated by a registered party.

The bill also proposes that a candidate not be permitted to accept any gift or other advantage that might reasonably be seen to have been given to the candidate to influence the candidate in the performance of his or her duties and functions as a member if elected. This ban will apply only for the period that begins at the drop of the writ, or the day a candidate was nominated by a party, rather than from the date the candidate started to collect electoral contributions.

The bill will require that candidates file a confidential statement with the Chief Electoral Officer setting out all of the “gifts” exceeding $500 received by the candidate from the drop of the writ or the date the candidate was nominated, whichever is earlier, until polling day. This is in contrast with the public declarations required under section 25 of the proposed Conflict of Interest Act respecting gifts made to ministers and other public office holders.

In concluding, Mr. Chairman, I would like to note that there are a number of other more technical issues respecting the drafting of the bill, which I will not deal with in these remarks. I will leave with you a list of these matters, which are of a technical nature only, and which also includes the drafting suggestions respecting gifts that I mentioned earlier.

Should the committee wish, I will also be pleased to make my officials available to work with the drafters of the bill regarding any amendments you may wish to make to it.

This concludes my remarks.

[The Chair, Conservative, David Tilson]

Mr. Kingsley, you are well within the ten minutes, as promised. Thank you.

On behalf of the committee, thank you for your offer. We'll leave that in the hands of the committee.

Mr. Owen.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Thank you and welcome, Mr. Kingsley and Ms. Davidson.

Let me get directly to a couple of points that you raised, which I think are critically important. The first is with respect to the release of documents that might have been collected during a review you were doing on an alleged breach, or whatever it might be. There is a complete exemption being suggested on the release--thou shall not disclose--in this legislation. I'm a little troubled by the concept of absolute exemptions as opposed to having the normal situation in which we would have an injury test or a public interest override that might be provided.

You refer to the current situation in which the approval of a judge must be sought for release of documents. I'm not aware of the standards that a judge applies in making that decision, but you've also suggested that perhaps with the commissioner could lie the responsibility to apply the normal test of injury or public interest override. I'd like to get further information from you on the importance of allowing that discretion under strict conditions.

The other situation about which I'd benefit from your comments is with respect to the Director of Public Prosecutions. It's not clear to me what problem such an office is meant to deal with. We know that the Attorney General remains the chief law enforcement officer of the crown, with quasi-judicial responsibility to conduct prosecutions in an impartial and independent way. I'm wondering if you're aware of any situation where the failure--if there has been a failure--or the conduct of a prosecution by the Attorney General under his prosecution service has arisen. Is that a problem? Is there something we're trying to remedy by having an independent so-called Director of Public Prosecutions?

[Jean-Pierre Kingsley]

First of all, what I would want to mention is that in both cases--as a matter of fact, in all five cases--I'm mentioning these things and bringing them to your attention so that people understand when they're passing a law what the consequences are, at least to the extent that I can read the consequences. That doesn't mean that the change is necessarily undesirable. It just means that people have to be aware of the consequences of what they're doing. That's why I focused on only five areas. They are the five main ones.

In terms of access to information, it may well be that one could make it a test under the statute that the Information Commissioner would have to apply instead of a judge in terms of access to documents. That may well work.

The other aspect of the access to information consideration that I want to bring to your attention is under the present system there is some access to information, but it's determined by the Chief Electoral Officer. What will obviously happen is that during an election there will be access requests and they will be processed through the Information Commissioner under this scheme and not under the Chief Electoral Officer. If you understand this and agree with it, it's not a problem. I know that the Chief Electoral Officer, whoever he or she will be eventually, can make this happen. That is not a concern.

With respect to the Director of Public Prosecutions, again, the comments were made in the same spirit--to bring this to the attention of the committee, Mr. Chair, so there is a recognition that there is a slight change. I do not foresee that there would be abuse, but there is a condition that would exist that does not exist at the present time, even though it would have to be done in writing by the Attorney General, if somehow he or she wished to provide direction on a prosecution specifically or general instruction. I cannot say that I'm aware of any case where there has been abuse of this in the past in terms of how our system has worked so far. All I know is that our system has worked well under the commissioner, so it behooves me to bring this to the attention of the committee.