Government Operations Committee on Nov. 26th, 2007

[The Chair, Liberal, Diane Marleau]

I call the meeting to order.

To the committee, you can see that we have some guests. We have before us the members of a brand new tribunal. I think they just set up shop in April or whenever it was. We also have the acting senior financial officer of the Canada Public Service Agency.

It's nice to have you both here.

We'll fill the first hour with that, and then we will go to Mr. Holland's motion afterward, if the committee thinks that would work.

I would ask you to introduce yourself and that each witness make a presentation of about seven or eight minutes. We will then move on to questions.

I know that this is all fairly new, and we are here because of the estimates, but since this is the first year you are in that position, perhaps you can explain to us what exactly you have done so far.

Ms. Lacroix, you may begin. We will then hear from Ms. Sylvestre.

[Lisanne Lacroix, Registrar, Public Servants Disclosure Protection Tribunal]

Thank you, Madam Chair.

Good afternoon, ladies and gentlemen.

It is my pleasure, in my capacity as the Registrar of the Public Servants Disclosure Protection Tribunal, to meet with the members of the Standing Committee on Government Operations and Estimates.

With me are Ms. Ginette Sylvestre and Ms. Diana Jardine. Ms. Sylvestre is the senior financial officer for the Canada Public Service Agency. Ms. Jardine is the senior advisor for Planning and Reports of the Office of the Registrar. Mr. Jean-Charles Ducharme is the senior counsel for the Office of the Registrar, and Ms. Ginette Pilon is the Deputy Registrar of the office, and they are also here today.

The Government of Canada announced the composition of the Public Servants Disclosure Protection Tribunal on July 3 last. The tribunal is comprised of four judges of the Federal Court of Canada. The tribunal was created under the Public Servants Disclosure Protection Act, which came into force on April 15, 2007. This act is part of the government's commitment to accountability, which enhances public confidence in the integrity of public servants.

As stated in the preamble of the act:

[...] the federal public administration is an important national institution and is part of the essential framework of Canadian parliamentary democracy;

Canadians therefore have the right to expect that public servants act in accordance with the highest ethical standards.

The Public Servants Disclosure Protection Act calls for the creation of a disclosure system which is in the public interest. The effectiveness of such a system rests largely on the ability to protect potential whistleblowers from reprisals. In that regard, the tribunal will play a key role. Its mission will be to determine whether a public servant has been subjected to reprisals following the disclosure of wrongdoing. In cases where it was determined that a public servant was subject to reprisals, the tribunal has the responsibility to make an order granting a remedy to the complainant, and, depending on the circumstances, may order disciplinary action against the person found to have taken reprisals.

It is important to note that the tribunal does not directly receive complaints about reprisals which are made by public servants. The complaints must first be presented to the Public Sector Integrity Commissioner, who, after investigation, may refer a case to the tribunal. Therefore, the tribunal plays no role in the first step of the process as set out in the act.

The Public Servants Disclosure Protection Act also calls for the establishment of a registry necessary for the proper conduct of the work of the tribunal. The registry provides strategic advice and legal and operational support to the tribunal to ensure effective case management and decision-making. The registry is listed as a branch of the federal public administration in schedule 1.1 of the Financial Administration Act, and reports on its activities to Parliament through the Minister of Canadian Heritage.

Since my appointment as registrar last April, I have had one goal in mind--to ensure that the tribunal is ready to hear its first case. In this context I am pleased to report that in its first six months of operation, the registry has recruited a core group of skilled and enthusiastic employees, established an excellent working relationship with the chair and members of the tribunal, developed draft rules of procedure, constituted a consultation group composed of key stakeholders to review the draft rules of procedure, secured office space, and negotiated a number of partnership agreements with other departments and tribunals for the purchase of corporate services, the sharing of resources, and the use of existing hearing rooms.

The registry has also contracted with Public Works and Government Services Canada for the development of a website.

As part of the federal public service, the Office of the Registrar must manage its affairs in accordance with the Financial Administration Act and with various Treasury Board policies. The office is also subject to pan-governmental initiatives such as the Management Accountability Framework and the modernization of the public service.

As the senior administrator, I am making the commitment to implement efficient management policies and practices to ensure that the office's budget is spent wisely. In a few months, the Minister of Canadian Heritage will table in the House the first report on plans and priorities of the registry. The report will contain a detailed description of the way the registry intends to respect the government's commitment to protect whistleblowers who disclose wrongdoing from reprisals. It will contain the planned activities of the registry, forecast expenditures and estimated outcomes for the next three years. I will then be in a better position to provide you with more information with regard to the strategic direction and the expenditure plan of the registry.

That being said, I would be pleased to answer any questions you may have today regarding the budget of the registry.

[The Chair, Liberal, Diane Marleau]

Thank you.

Ms. Sylvestre...

[Lisanne Lacroix]

I apologize, I should have clarified that Ms. Sylvestre is accompanying me today because I still have not received a budget and the Public Service Agency is helping me out. Moreover, I negotiated an agreement with the agency in order to purchase all of their corporate services, including financial services.

[The Chair, Liberal, Diane Marleau]

So that is the reason why she is accompanying you.

[Lisanne Lacroix]

Exactly. Ms. Sylvestre and her staff look after my budget and my financial statements for the time being.

[The Chair, Liberal, Diane Marleau]

Thank you.

We will now go to Mr. Silva.

[Mario Silva, Liberal, Davenport, ON]

Thank you, Madam Chair.

First of all, I would like to thank Ms. Lacroix for her excellent presentation. I have a few questions to ask her, particularly with respect to the tribunal.

You stated that this was a quasi-judicial tribunal composed of four judges. Is the final decision made by the minister or by the tribunal?

[Lisanne Lacroix]

The four judges, the chairman and the three members, are from the Federal Court of Canada. The chairman is Judge Pierre Blais. The tribunal also includes Judge Snider, Judge Mosley and, finally, Justice Luc Martineau. These people are all judges with the Federal Court of Canada. The tribunal has a quasi-judicial function. Accordingly, the decisions made by the tribunal have nothing to do with the minister and they are final. Parties can request the Federal Court of Appeal to undertake a judicial review.

[Mario Silva, Liberal, Davenport, ON]

How many cases does the tribunal hear on an annual basis?

[Lisanne Lacroix]

There is no limit. That depends on the number of cases referred to the tribunal. As I mentioned in my opening statement, the requests are tabled by the Public Sector Integrity Commissioner, Ms. Christiane Ouimet. She receives the complaints directly from the public servants and she conducts an inquiry. If she deems it necessary or if there is an issue of public interest involved, she may submit a request with the tribunal.

[Mario Silva, Liberal, Davenport, ON]

Thank you.

[The Chair, Liberal, Diane Marleau]

Ms. Bourgeois, it is your turn.

[Diane Bourgeois, Bloc, Terrebonne—Blainville, QC]

Thank you, Madam Chair.

Good morning. I would like to refer back to a document that was distributed to us and which contains, I believe, the main points of your presentation.

First of all, who can file a complaint when the matter concerns public servants? Could you provide us with more details?

[Lisanne Lacroix]

Madam Chair, page 5 of the presentation distributed to you today states that employees, public servants and former public servants from all departments and other sectors of public administration, crown corporations and other public agencies, can file a complaint with the Public Sector Integrity Commissioner.

[Diane Bourgeois, Bloc, Terrebonne—Blainville, QC]

I think that this is new in the legislation and it results from the revised code of ethics and conduct. Indeed, not all of these people could file a complaint before.

[Lisanne Lacroix]

The legislation is much broader than it used to be.

Jean-Charles may wish to elaborate.

[Jean-Charles Ducharme, Senior Legal Advisor, Public Servants Disclosure Protection Tribunal]

This act was amended and implemented further to the adoption of Bill C-2, the Accountability Act. This legislation broadened the scope of the policy which used to be in force. The integrity officer became the integrity commissioner. So this is a new system.

Although the former act had been adopted, it had never come into effect as such. We now have a new system, a new commissioner and a broader application. Nevertheless, this new act does not apply to three entities: the Canadian Security Intelligence Service, the Communications Security Establishment and the Canadian Forces.

[Diane Bourgeois, Bloc, Terrebonne—Blainville, QC]

I really appreciate your answer. I have already worked with the Public Sector Integrity Commissioner. The first year, the commissioner dealt with 14 complaints, at the most. The next year, there were 18 complaints, and then 21. I know this because I spent a great deal of time going through the reports. Nevertheless, these were not necessarily complaints about disclosure. There were also complaints that pertained to psychological harassment.

Ms. Lacroix, you have prepared a plan, or you are in the process of doing so, in order to justify the additional $2 million that you have asked for. Could you tell me how many previous cases you are basing yourself on in order to prepare this plan?

Moreover, do you intend to broaden protection beyond the infamous 60 days provided for in the legislation, and to include psychological harassment, something which the act is completely silent about?

[Lisanne Lacroix]

Thank you.

First of all, you mentioned a former system, the one under the previous commissioner, Mr. Keyserlingk, and the reports that he tabled in the House.

You are right to say that there were very few complaints. This is one of the reasons which prompted the government to create a new system. This is the main reason why the tribunal was established. You can understand that, with the establishment of this tribunal, the public servants will not be so fearful about lodging a complaint with the commissioner's office, that they now know they are protected by the act and that, following the commissioner's investigation, the file may be referred to the tribunal.

As for the $2 million, I would clarify that I am not the one who has set the budget. The Office of Public Service Values and Ethics had the file before the tribunal was set up. If I understand correctly, the budget was set based on the number of cases that could be filed. The people from this office were also basing themselves on already existing tribunals that had the same number of employees as us. They considered travel costs, the fact that we may have to travel to the regions to hear complaints, and so on and so forth. I was given this budget. I was appointed two days before the act came into effect.

With respect to the number of cases, that is very difficult to determine. It will depend on a certain number of factors: first of all, the number of cases that the commissioner may receive; then, the number of cases that the commissioner may choose to refer to the tribunal; and then there is the fact that cases may be heard in Ottawa or in the regions. Indeed, if the employees who have filed a complaint live outside Ottawa, there will be travel and accommodation costs. Finally, there is the complexity of the cases. The more complex the case, the more time it will take and the higher the costs will be. I must manage my budget without knowing how many cases will be submitted. I'm trying to remain as flexible as possible.

[Diane Bourgeois, Bloc, Terrebonne—Blainville, QC]

Perhaps Ms. Sylvestre should answer my question since she is the acting senior financial officer for strategic management and planning. I will ask you some slightly different questions, Ms. Sylvestre.

To whom will people lay an information or simply disclose matters that are of concern to them such as, for instance, embezzlement within the public service? Is it to you also?

[A voice]

Yes.

[Diane Bourgeois, Bloc, Terrebonne—Blainville, QC]

If I understand correctly, you have come here to meet with us but you don't really understand your mandate or where you're going with it.

[Lisanne Lacroix]

No, I'm very clear about the nature of my mandate. I can explain, once again, the role played by Ms. Sylvestre. A tribunal was...

[Diane Bourgeois, Bloc, Terrebonne—Blainville, QC]

I understood Ms. Sylvestre's role. I will be very clear.

If, for example, a public service executive disagrees with the conduct of a minister because the latter, during the course of a committee meeting, explained something that was not at all in compliance with the rules or do not match the figures that the executive had available to him, to whom should this employee disclose the matter? You give 60 days of protection to this employee, but once this deadline has been passed, to whom should he go in order to obtain protection?