Government Operations Committee on June 14th, 2007

[Christiane Ouimet]

I hesitated a little, Madam Chair, simply because my own legal background leads me to think that this type of training is an asset for conducting investigations. However, I would not want to rule out people who do not have legal training but who do have equivalent experience. I would think that legal training could be an asset for understanding the quasi-judicial context, the principles of natural justice and procedural equity. Consequently, a candidate with legal training might have an advantage.

However, this does not rule out people with experience in enforcing the law, with programs, contributions, policy development and human resources, if only to distinguish between mandates—namely whether or not they are complementary or whether the complainant would do better to go elsewhere.

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

Your team of investigators will have to be made up of people with a variety of skills, would it not? Distinguishing between cases of genuine abuse and false allegations is one of the challenges you are going to have to meet. You will need people with experience in investigations, others with experience in procedures, and still others with experience in human resources.

[Christiane Ouimet]

I could not agree more, Madam Chair. I have no idea how staffing has been done so far, but I have made careful note of these comments. I think this is an excellent suggestion.

[The Chair, Liberal, Diane Marleau]

Thank you.

Mr. Dewar.

[Paul Dewar, NDP, Ottawa Centre, ON]

Thank you, Chair, and thank you to Madame Ouimet.

It's an interesting resumé, and I took note of your experience with Customs. My father was a career public servant with Revenue Canada, Customs and Excise, and he retired just as you began there. So it's an interesting background. I think you have some skills that are well suited for the position, and I am glad we have passed the legislation and that we're moving on, because I honestly believe there were gaps in the previous legislation.

I was wholeheartedly supportive of the changes in Bill C-2 because some things needed to be changed, and I think the tribunal was one. I think it was important to have a clear pathway for public servants to be able to go where they'll have a speedy resolution, or as quickly as possible, and I was concerned the previous legislation was putting them into a process that would have been problematic and wouldn't have a speedy resolution. Certainly when we had testimony at committee, it was clear there was a huge backlog with the previous remedy. So I'm glad to see we have the dual pathway in the present legislation, and I fully support that.

Being in Ottawa and connected to a lot of people in this community, I have had the opportunity to know many whistle-blowers. First of all, were you aware, or were you involved at any time with a case, which is well known in this town and indeed across the country, of Dr. Chopra, Dr. Hayden, and Lambert? Do you know the case they have currently, and were you involved in any way with their situation? You probably are aware they were dismissed in 2004 and currently are fighting their case. I know it doesn't have any effect or bearing on what your position would be—it wouldn't be affected by this legislation—but I'm just curious if you knew about their case or had any involvement with it at all.

[Christiane Ouimet]

Madame Chairman, I only know what I read in the paper. I've never been involved in that case.

[Paul Dewar, NDP, Ottawa Centre, ON]

Thank you.

I asked you that so I could move on from there, and so that there is no conflict. That was the reason for my question.

In my opinion, their case is one where they did the right thing and, sadly, were dismissed as a result.

In the case of Mr. Chopra, it was not once but a couple of times. He's like a hamster on a wheel. Every time he gets put back into his position, he is then dismissed. His case, including that of Madam Hayden and Monsieur Lambert, is worthy of looking at for your purposes. People who were doing the right thing, in this case protecting Canadians' health, spoke up, paid the price, and are still paying the price.

It would be a case for you to examine, and it would be helpful, because we still have—and I encourage my colleagues on the government side to help you with your job—to mop up the previous cases, so that we can move on and have a clean slate. That is critically important, and I encourage them to do that.

But I encourage you to look at their case because it is helpful. There's no question that it's complex, but it is a textbook case in terms of what happens when people blow the whistle—in this case, there were three people—and then are dismissed, in the most recent case without cause.

I also want to reference Mr. Jeewanjee, because he was in a similar circumstance, working for CIDA. He did some critical analysis on the program review of what CIDA was doing. He was isolated and didn't get promoted, i.e., he was set aside. He is fighting his case right now. That is another one to look at.

I want to turn to the legislation, because it is fairly prescriptive, and I think that is helpful. One of the areas, if you look at the parameters—There was a debate at committee, and I believe with the previous legislation, on what to do with the RCMP.

If your appointment is successful—and I don't see any reason why it wouldn't be, from my perspective, but it has to go through Parliament, of course—it is interesting to look at the present legislation and what's happening right now with the RCMP. We have legislation that allows for members of the RCMP to come forward, but they have to go through the chain of command and the processes within the RCMP first. I would like your comment, as obviously you can't do anything other than comment.

As I see it, the dilemma is that presently we have a lack of confidence in the RCMP's chain of command. If you will, the chain is broken. Mr. Poilievre's questioning was helpful here. You will have the powers to investigate, subpoena, and bring people forward.

Have you looked at this facet of the legislation—in other words, at how the RCMP is affected, and how members of the RCMP would be able to come forward and be protected if they want to disclose? We have seen a couple of people bring forward their issues in committee—not this committee—but I'm really concerned. I happen to know that there are an awful lot of others who would like to do so, but they don't feel that they can, because they feel vulnerable.

I would like your comment on what you have observed. Vis-à-vis the legislation, how do you see it working with the RCMP—if you've had time to look at it? I appreciate the fact that you might not have had the time.

[Christiane Ouimet]

Madam Chairman, thank you for the question.

In fact, I have not focused at all on that aspect of the legislation. I would simply offer the general comment, to which I alluded in my presentation, on the importance of looking at the framework of the legislation and the respective mandates of other organizations, for instance, the Commission for Public Complaints Against the RCMP. This has a role with respect to the public coming forward regarding issues involving the RCMP.

I believe member talked about the internal disclosure process. This is something that I would propose looking at, but always guided by the parameters of the existing legislation.

[Paul Dewar, NDP, Ottawa Centre, ON]

Regarding the present situation of the public complaints facet of the RCMP, one of the deficiencies there—and this is just by way of comment to you—is that, sadly, it's within the RCMP. I think that's one of the problems, and hopefully that will be looked at. The public complaints body is within the structure of the RCMP, which structurally is conflicted.

But I must say that if you look at the exemption—it's on page 142 of the act that I have here—it does lay out that:

A member or former member of the Royal Canadian Mounted Police may not make a complaint under subsection (1) in relation to any matter that is the subject of an investigation or proceeding under Part IV or V of the Royal Canadian Mounted Police Act or an investigation or proceeding relating to administrative discharge under the Royal Canadian Mounted Police Regulations, 1988 unless

(a) he or she has exhausted every procedure available under that Act or those regulations for dealing with the matter; and

(b) the complaint is filed within 60 days after those procedures—

That's one of the things you'll have to grapple with, and I encourage you to take a look at that. It's one of the issues that Canadians are looking at closely. And of course, the people in the RCMP want to have the confidence of the structure that we're providing here to ensure that they are able to come forward and be protected at the same time.

I have one last question, Mr. Chair.

Can you comment on the section in terms of how you see the tribunal working—it is prescriptive—and your relationship to the tribunal? I'd like any comments or observations that you might have.

[Christiane Ouimet]

Thank you, Madam Chair.

Yes. I think there's a fair bit of detail with respect to how the tribunal is set up with the chair and, as well, with respect to the mandate—no less than two and no more than six or seven.

Once a tribunal has been set up by the commissioner, by application, it is a clear indication that, first, they want an arm's-length body to look at the seriousness of reprisal. I think this is a very clear indication in the legislation that the tribunal will also operate independently of the commissioner. And it'll be important for the commissioner to bring forward all of the relevant evidence, facts, and reports that will guide the tribunal in taking the appropriate action and remedy. It would be, as well, with great respect that I would have to treat that separate institution, which would be a very important function.

[Paul Dewar, NDP, Ottawa Centre, ON]

So as your position is separate from that of the government, you have an arm's-length relationship with the tribunal, if I can put it that way.

[Christiane Ouimet]

This would be my understanding, Madam Chair.

[Paul Dewar, NDP, Ottawa Centre, ON]

Thank you, Madam Chair.

[The Chair, Liberal, Diane Marleau]

Mr. Szabo.

[Paul Szabo, Liberal, Mississauga South, ON]

Thank you.

Welcome, Ms. Ouimet.

Maybe you could elaborate on a couple of the comments that you made. You referred to a supervisor's looking at some of the material and that maybe they could take some remedial action. I'd like to explore with you what exactly you contemplated as being a supervisor's so-called “remedial action”.

The other aspect you referred to is that you would try to work with the public service to avoid situations. I assume that would be a prevention approach. I'm curious about that. As you know, the public service is defined in the legislation not just as we know it, but as including crown corporations and agencies. I think the only exclusions are, basically, the military, SIRC, CSIS, etc. I'm not sure whether part of the responsibility of the public service, as defined in the legislation, is to work on programs to prevent situations.

I wonder if you could comment on those two—the remedial action and the work with the public service.

[Christiane Ouimet]

Certainly, Madam Chair.

I would perhaps start with the letter. First, it was a misnomer. I should have referred to the public sector as opposed to the public service. Throughout my experience, when I was dealing with crown corporations, I obtained a very good understanding of their role and the importance as well of delivering either policy or programs.

I think that the education, prevention, and training—I believe this was discussed as well in committee, if I'm not mistaken, as to who should have the role. Certainly now the newly named Canada Public Service Agency presently has a role, along with Treasury Board, with respect to education and training, and this is very important to maintain as the employer.

But like any tribunal—I mean, the Supreme Court of Canada has been reaching out through its chief justice—not that I compare myself to the Supreme Court, but general courts and general tribunals want to make known what the mandate is, what is the transparency, what is the openness, and as well, to try to reach out to a very diverse group of people who deliver services to Canadians, to try to improve the way they do so and try to come to terms with issues that may happen in the workplace.

So this is in the most general terms of making known the role and mandate of this new institution and, as well, not to work in isolation. That would be my first comment, Madam Chair.

The second one has to do with alternative dispute resolution. So it is in that context that I would have referred to a supervisor taking remedial action. In the context of a process, a mediated approach, you always look for recognition that either a wrong has been committed or a mistake has been made, and often I have found that lack of communication was definitely key, either on the part of the complainant or on the part of the respondent. Often we come to a resolution of those issues in a variety of situations that could arise.

I think I'll leave it at that.

[Paul Szabo, Liberal, Mississauga South, ON]

I'm curious. You mentioned a wrong or a mistake. I think we're agreed that human resources disputes are not part of your purview. There is already a broad mechanism throughout the public service to deal with HR, and one of your big jobs is going to be to set those criteria very clearly and make sure your department doesn't start taking on a duplicative role.

Wrongs or mistakes—I'm not sure that covers wrongdoing as defined in the legislation. There's quite a list, but wrongdoing includes breaking a law of Canada. It's not a small matter—an allegation of breaking a law. The second aspect, to my recollection, is where it has to do with putting at risk the health or safety of persons. And the last one, which is very important, is that should someone be discovered to have blown the whistle, an alleged reprisal would be taken. This gets, I'm sure, very complicated.

So trying to deal with wrongs or mistakes doesn't seem to fall into the definition of wrongdoing. Would you agree?

[Christiane Ouimet]

Madam Chair, the member is absolutely correct. This is the example that I gave for alternative dispute resolution, where it would not fit squarely within a contravention of the act, of the regulation, of the code, or a serious breach, abuse of funds, gross mismanagement, and also when there's a specific threat to the health, safety, and security of individuals and the environment, as I recall the legislation--and of course, anybody who encourages those specific breaches.

So the legislation is very specific as to what falls under the definition of wrongdoing, but often the complainant does not know, when he or she comes forward, whether his or her complaint falls within that definition. This is where I think there would be also another benefit to the function, as we lead the individuals to alternative dispute resolution. Maybe there's no wrongdoing, but there has been a mistake or there has been a wrong that could be corrected, nonetheless, even though through the alternative dispute resolution by mutual agreement.

[Paul Szabo, Liberal, Mississauga South, ON]

And that would be determined pursuant to an investigation of the facts, because we're all talking about allegations.

[Christiane Ouimet]

Correct.

[Paul Szabo, Liberal, Mississauga South, ON]

There is just one last area, and I think it's important.

I recall over so many years dealing with this issue of anonymity. Anonymity is an extremely important aspect, and I think we've taken all possible steps. I remember that we recognized that in small agencies or departments, if a matter should come out, chances are it was readily apparent who would have been the whistle-blower, and that there are some reasonable and possible protections for that person, even to transfer out.

The other aspect that was an extremely sensitive matter was the issue of the confidence level of those in the public service, as defined in the legislation, that the process would work, that it would be fair, and that there would be integrity of the office. And in fact the cynicism with regard to the public service renewal process followed through with the whistle-blower. There was a tremendous amount of cynicism.

I raise that as a preamble because I note in your resumé that you are basically, and have been since the early nineties, management. The people and the cases that have come forward have not come from management, they have come from people below the positions you have held.

Do you see the positions from which you are coming being an issue in regard to whether or not the public service, as defined, will have the confidence in you, as the new commissioner, to be able to discharge the responsibilities in a fair and effective fashion?

[Christiane Ouimet]

Thank you, Madam Chair.

In fact, I would refer back to, first, my oath of office with respect to being a lawyer; and secondly, that very early in my career I had the opportunity to operate in a quasi-judicial environment. I think I've established credibility as a neutral entity, because not only must justice be done but it must appear to be done.

I've also acted, as I referred to, in a lot of situations of alternative dispute resolution, and I gave a few examples. I think that, first, it would be recognized by virtue of the function of the agent of Parliament, which is an extension of Parliament, that the incumbent has to be guided by the framework of the legislation, and this is the ultimate guide.

In the end, I truly believe that the vast community of both the public sector per se and public service want to see this legislation go forward and want to raise the credibility of and confidence in the delivery of services to Canada, and this brings further transparency and openness.

I would like, as well, to leave this clear message to the committee, should they support my candidacy: I would absolutely deliver the functions of that role in a very diligent and impartial and neutral way. I think you would not expect any less.

[Paul Szabo, Liberal, Mississauga South, ON]

Thank you.

Finally, Madam Chair, having been on the government operations committee at the time the former Privacy Commissioner, Mr. Radwanski, was in office, there was some history that ultimately came back to haunt that person and led to his resignation. In fact, he was found in contempt of Parliament for other reasons, and he's still undergoing some legal difficulties. So I think it's probably an important question to have your statement on the record.

You have been an employee in the service of the Government of Canada for a number of years and involved in a number of departments and a number of responsibilities. You obviously are known and have a reputation. Can you give the committee assurances that there are no matters of which you are aware that would impact on your suitability to be appointed to this position should those become public?

[Christiane Ouimet]

I'm not aware of any issues or matters that would be brought forward with respect to the way I've discharged my duties as a public servant.

[The Chair, Liberal, Diane Marleau]

Thank you.

When I was listening to Mr. Dewar I was surprised, because I understood that the personnel of the RCMP and the RCMP per se followed the same path as other public sector groups—unless that's been changed. The intention of the original law was that a person would not have to go through the internal process before reporting to the commissioner. I don't think that has changed, but maybe I'm wrong. I didn't sit on the committee that reviewed the legislation; I was on the original one for Bill C-11.

Monsieur Poilievre.