Government Operations Committee on May 12th, 2009

[Christiane Ouimet]

This is the jurisprudence. There is right in the act a specific definition that I omitted to refer to. Usually, it's in my opening speech. In fact, wrongdoing is:

a contravention of any Act of Parliament or of the legislature of a province, or of any regulations made under [the] act...; a misuse of public funds or a public asset; a gross mismanagement in the public sector; an act or omission that creates a substantial and specific danger to the life, health or safety...or to the environment, other than a danger that is inherent in the performance of the duties or functions of a public servant; a serious breach of a code of conduct established under section 5 or 6; and knowingly directing or counselling a person to commit a wrongdoing set out in any of the paragraphs...

I don't know if that helps the member, but there is a definition in the act. What I was giving was the interpretation under common law.

[The Chair, Liberal, Derek Lee]

Madame Bourgeois.

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

Thank you, Mr. Chair.

Good morning, Ms. Ouimet; good morning, gentlemen.

I wanted to tell you at the outset that I have read your document. I feel that you have done good work since you have been in your position. I do not know if you remember, but, on the day I met you here, I was skeptical. I told you not to forget the disclosers of wrongdoing who suffer psychological harassment, nor to forget the next stage, by which I meant the reprisals. What happens after the 60 days? You are showing a lot of sensitivity in this, and I feel that you have put appropriate measures in place. Earlier, I heard you say that people coming to you were emotional. You are sensitive to that, and I appreciate it a great deal. My congratulations.

So many questions occur to me and you are going to have to answer them in a very short amount of time, I think. On page 12, you say that agencies seem more vulnerable to staffing irregularities. Ms. Barrados has appeared before this committee. Do you work with her?

[Christiane Ouimet]

Yes. In small agencies, there are often expectations because everyone knows everyone else. In some cases, the expectations are about a promotion that is often impossible because of the structure. We also have to be flexible with the good practices. I have sent Ms. Barrados what we generally call our good practice decks. This allows small agencies, for example, to share the challenges they face. If someone, say, is in the process of re-examining a conversion, it can mean that someone else does not have to start the process all over again. We are not reinventing the wheel, but sometimes people can talk about good practices without putting them into operation. Yes, we want to work closely with other agents of Parliament.

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

In your report, you also say the following:

Consideration should be given to bring subsidiary crown corporations under the act as soon as possible.

My feeling is that, in subsidiary crown corporations, the employees' code of ethics is not always used. There is one, but it is not used. What can we do to have the act applied to those situations as quickly as possible?

[Christiane Ouimet]

We are in contact with people in Treasury Board. We have some practical recommendations for them.

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

You talk about reprisals in your report and that fascinated me. You dealt with a reprisal complaint from 2002. Having tried to help people who have been harassed or who have suffered reprisals, I know that the difficulty is that departments recognize that harassment has occurred in their organization, but they take no action. They let things drag on, and the employee has no way of knowing his rights with regard to his pension, for example, or where he is going to work in the next six months. I think of employees who are constantly moved from one situation to another. I know that there are cases like that.

I know of a case where the harassment was acknowledged by the employer, the Correctional Service of Canada, but it had been dragging from one deputy minister to another for seven years. Of course, the people who had been harassed were ill—you know because you work with them.

Would it be possible for your office to handle cases like that? When a department lets things drag on, does not provide answers, does not conduct due diligence to deal with cases, those are basically reprisals too. The system is allowed to rot, and the rot affects the employee, who leaves the workplace in disgust.

Can your office deal with cases like that?

[Christiane Ouimet]

Mr. Chair, the act is very clear on that. For us to have jurisdiction over cases of reprisal, there absolutely has to be what is called a nexus with the disclosure. There must be a direct link with a disclosure previously made in the public interest about wrongdoing within the meaning of the act. If, after a disclosure of that kind, subsequent actions become reprisals as defined in the act, we can intervene.

When the interest is strictly private—not that that diminishes the significance of the complaint—our duty is to refer the matter to the organization with the jurisdiction. That does not mean that we cannot make comments, but, technically, if there is no... But it is also a question of the detail that we provide in cases that have been brought to us and that we have had to refer. That is a task with which Parliament did not entrust us.

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

Thank you, Mr. Chair.

[The Chair, Liberal, Derek Lee]

Thank you.

Mr. Warkentin, for five minutes.

[Chris Warkentin, Conservative, Peace River, AB]

Thank you, Mr. Chair.

Thank you again for coming before our committee. We appreciate your testimony this morning.

I just wanted to touch base with you with regard to your mandate. You spoke with Ms. Hall Findlay some time ago with regard to what is classified as a wrongdoing. I read in the brochure as well as in the other documents that this would be defined as a number of things, but including “misuse of public funds or public assets”, and second of all, “a gross mismanagement in the public sector”.

There have been some complaints brought forward to our committee by other officers of Parliament, and now, because of my own interest, I've actually started to receive letters from the public service with concerns regarding classification creep and this whole issue of reclassification not necessarily being reflective of the work that is being required. This is a misuse of public assets and funds for sure, but I have asked whether this goes further, whether in fact there's somebody who's knowingly directing somebody to do something that is wrong.

The first question would be, do you consult other officers of Parliament in terms of having certain issues referred to your office? Does that happen?

[Christiane Ouimet]

In fact, Mr. Chair, we consider this to be a very important element because we want to avoid, first of all, duplication. We want to make sure that our role is complementary and, if there is a process ongoing, that we're not seen as interjecting inappropriately.

With respect to what constitutes a wrongdoing, again it's still early days, and we're also guided by some eminent jurists as well as by some retired Supreme Court judges. You have to look at it in a very practical way. We're not, as well, management consultants. We have to be very careful. This is not our role.

We have to situate it within the act. Does it fit the definition of the act? Again, it doesn't mean that from the prevention angle...and this is the liberty that we took, again with the blessing of Parliament, some of your colleagues, and jurists, to indicate areas of vulnerability.

So we want to look at it next year more closely. But do we talk to other officers, other heads of tribunals, to look at their approaches? Absolutely. This, we think, is our obligation.

[Chris Warkentin, Conservative, Peace River, AB]

In the letters I'm receiving now, because of my comments in the Ottawa Citizen, from the public servants, they do actually go to great lengths to explain concerns that they're having within the public service. Do you believe this might be an issue, that I should be directing these folks to your office? Do you think you are in a position to address...because I think it is not necessarily about whether the issue is legal or illegal. This is probably a simple question of management or mismanagement, or being directed to engage in a practice that would lead to possibly mismanagement within an agency or department. It's an issue that doesn't necessarily fall into the parameters of being an illegal act, but some of the public servants believe it's an unethical act.

[Christiane Ouimet]

Mr. Chair, without knowing the particulars of the case, if any issue is brought to the attention of my legal services, we'd be happy to look at it. I think I'd be remiss if I were to comment at this point in time.

[Chris Warkentin, Conservative, Peace River, AB]

Absolutely. I appreciate that very much.

We, as a committee, have taken some time and are hoping that we can take some additional time in terms of just trying to find out exactly how we might be able to address this concern a little bit more.

You do say, though, that you do have regular contact with other officers of Parliament.

[Christiane Ouimet]

At all levels.

[Chris Warkentin, Conservative, Peace River, AB]

At all levels. We appreciate that, and through that coordination, I'm certain that the public service and Canadians in general will be well served by that relationship. So thank you.

[The Chair, Liberal, Derek Lee]

Thank you.

I have indications of three other members who want a second round. I'm just going to leave a question. The answer might not be immediately forthcoming.

Monsieur Roy, in his earlier round, raised the issue of journalists with sources. I'm going to ask you a hypothetical question, and maybe your office colleagues can work up the answer if it isn't immediately available. What if a journalist does come with information? Because a journalist is a member of the public—

[Christiane Ouimet]

In fact—

[The Chair, Liberal, Derek Lee]

Let me finish the question. The journalist comes to the office and says, “I have information about A, B, C”, with relative particularity. But it's all hearsay, that information having been derived from an actual public servant who knows that much or more. So my question is, does the journalist obtain the protections of the statute through your office by the very nature of the fact that he or she has delivered the information? Is there any immunity attached to that? And is there any distinction between that information because it is totally hearsay and second-hand, and so if you want to—

[Christiane Ouimet]

No. There's a specific provision in the act with respect to reporters. First of all, yes, I see that it does not cover the CBC....

[The Chair, Liberal, Derek Lee]

We can wait for the answer. I don't mind at all. I just wanted to give you some advance notice of it.

[Christiane Ouimet]

First of all, any member of the public can come to us regardless of their profession, regardless of their background. So that's the ground rule.

There's a specific provision. Joe, do you want to read it? I thought you might find it interesting.

[Joe Friday, General Counsel, Office of the Public Sector Integrity Commissioner]

Mr. Chair, section 18 of the Public Servants Disclosure Protection Act provides that, “Nothing in this Act relating to the making of disclosures is to be construed as applying to the dissemination of news and information by a person employed by the Canadian Broadcasting Corporation for that purpose.” There is a CBC-specific provision in our act.

[Christiane Ouimet]

There is also the distinction between a protected disclosure and a disclosure that is disclosed in the media. For instance, in an emergency situation, someone might decide to disclose in the media. I know that your question relates to an actual reporter specifically, without, of course, going forward.

There are specific provisions in the act, but if you want us to explore further the various scenarios, we do intend to reach out to media representatives. First of all, how do they view our function? Is this also part of what the role is from a disclosure perspective?

Perhaps, Mr. Chair, as this is a very valid question with all sorts of facets, we'd be happy to look at more areas to answer more fully.