Government Operations Committee on May 15th, 2023

[The Chair, Conservative, Kelly McCauley]

I will call this meeting to order while everyone is paying rapt attention.

Welcome to meeting number 66 of the House of Commons Standing Committee on Government Operations and Estimates. Pursuant to the order of reference adopted by the House on Wednesday, February 15, 2023, and the motion adopted by the committee on Monday, May 1, 2023, the committee is meeting for clause-by-clause consideration of Bill C-290, an act to amend the Public Servants Disclosure Protection Act.

We have a couple of irregular witnesses today: Ms. Laroche and Ms. Stevens. They're here to answer questions. They won't be making any opening statements for us today. In place of our analysts, we have legislative experts on whom we will be relying quite heavily today, I suspect. They're Ms. Sauvé closest to me and Ms. Boyi furthest from me.

Colleagues, in my almost eight years, this will be only the second time we've actually done a clause-by-clause at OGGO, so I hope you will all bear with me and each other on this as we go through it.

I have a small opening statement prepared by our legislative assistants, which I will read. It's just general information on the clause-by-clause today. I'd like to provide members of the committee with some instructions and a few comments on how the committee will proceed with the clause-by-clause of Bill C-290.

Today's examination, as we know, is an examination of all the clauses in the order in which they appear in the bill, except for the short title, which will be considered at the end. I will call each clause successively, and each clause is subject to debate and a vote. If there are amendments to the clause in question, I will recognize the member proposing it, who may explain it. The amendment will then be open for debate. When no further members wish to intervene, the amendment will be voted on. If we're all in general agreement, we will do it on division if that is fine with everyone.

Amendments will be considered in the order in which they appear in the bill and the package each member received from the clerk. Members should note that amendments must be submitted in writing to the clerk of the committee.

In addition to having been properly drafted in the legal sense, amendments must also be procedurally admissible. I may be called upon to rule amendments inadmissible if they go against a principle of the bill or beyond the scope of the bill—both of which were adopted by the House when it agreed to the bill at second reading—or if they offend the financial prerogative of the Crown. We must not offend the Crown. If members wish to eliminate a clause of the bill altogether, the proper course of action is to vote against the clause when the time comes, not propose an amendment to delete it.

I'm going to go very slowly so all members can follow the proceedings properly. I will mostly be going slowly for my own benefit.

In the package that was distributed by the clerk of the committee, amendments have been given an alphanumeric number in the top right corner to indicate which party submitted them. There's no need for a seconder to move an amendment. Once moved, you will need unanimous consent to withdraw it.

During debate on the amendment, members are permitted to move subamendments. These subamendments must be submitted in writing. They do not require the approval of the mover of the amendment. Only one subamendment may be considered at a time, and the subamendment cannot be amended. When a subamendment is moved for an amendment, it is voted on first. Then another subamendment may be moved or the committee may consider the main amendment and vote on it, just to keep things interesting.

Once every clause has been voted on, the committee will vote on the short title and the title of the bill itself. An order to reprint the bill may be required, if amendments are adopted, so that the House has a proper copy for use at report stage. Finally, the committee will have to order the chair to report the bill to the House. That report contains only the text of any adopted amendments, as well as an indication of any deleted clauses.

Before we start, I'm going to turn things over to Ms. Sauvé for a couple of quick comments about some changes.

Go ahead, Ms. Sauvé.

[Marie-Hélène Sauvé, Legislative Clerk]

Thank you, Mr. Chair.

As members will have noticed, a number of new amendments—12—were distributed shortly before the meeting started. We unfortunately did not have time to include them in the package in the proper order. I have advised the chair on when these amendments will be coming up in the course of the clause-by-clause consideration and in which order they should be considered. There may be some short delays as we wrap our heads around the new order of things.

[The Chair, Conservative, Kelly McCauley]

Thank you.

Again, I ask for everyone's patience. I'm sure there's going to be a lot of back-and-forth, and it's rather irregular for our committee business.

Pursuant to Standing Order 75(1), consideration of clause 1, the short title, is postponed. I will call clause 2.

(On clause 2)

Shall clause 2 carry?

I see Mr. Fergus. Is this on clause 2 or on the title? Please tell me it's clause 2.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

Mr. Chair, I just wanted to thank you and thank all members for their patience.

I'd like to thank Mr. Garon for the work we've done and for his co‑operation.

This private member's bill is very important, and I hope the committee will be able to adopt it today, to the satisfaction of all the committee members.

I want to thank everyone who provided amendments. I'll have a lot to say when we get into the debate.

First, though, I want to assure my fellow members of the government's good faith when it comes to protecting whistle-blowers in the federal public service who disclose wrongdoing.

[The Chair, Conservative, Kelly McCauley]

Thank you, Mr. Fergus.

Shall clause 2 carry?

(Clause 2 agreed to on division)

(On clause 3)

On clause 3, we have a Bloc amendment.

Do you wish to speak to it, Ms. Vignola?

[Julie Vignola, Bloc, Beauport—Limoilou, QC]

Yes. We are proposing an amendment to clause 3. You received it last week. The purpose of the amendment is to define political interference as interference in the public sector that causes any political or personal interest to prevail over the public interest. Paragraphs (a) and (b) seek to ensure that the public interest prevails over any other interest, whether personal or political.

I'm going to give the floor to Mr. Garon, the sponsor of the bill.

[Jean-Denis Garon, Bloc, Mirabel, QC]

I wasn't expecting my fellow member to be this generous.

Bloc Québécois amendment 1 goes to the heart of the bill and basically proposes to define what political interference means. The idea is to ensure that the act includes a clear definition of political interference, one that is consistent with those used by other countries, the U.S. in particular.

A couple of options are on the table. The first is the one advocated by all the witnesses who appeared before the committee, including experts and lawyers from the Government Accountability Project. In other words, their recommendation was to include a definition in the act.

The second, which is captured in the Conservatives' amendments, is to let the government define political interference later on, through regulation. Both we and the experts feel this approach would weaken the bill.

I'm being told that one of the Liberals' amendments seeks to remove the definition—but I would have to check. Our position is that the act should set out a definition, one that is clear and in line with the standard in other countries. Basically, that's the purpose of the amendment.

[The Chair, Conservative, Kelly McCauley]

Go ahead, Mr. Fergus.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

First of all, I'd like to thank Mr. Garon again for putting forward this amendment, BQ-1. With this amendment, it's very important that we understand that the best way, we feel, to define “political interference” is in the Conflict of Interest Act, because there are provisions in there.

Although I would recommend that we don't vote for BQ-1, we support what will be coming up afterwards, which gives us the political definition we have in what would be—I think you've received it—the clause in the table-dropped version on page 2.

[The Chair, Conservative, Kelly McCauley]

Go ahead, Mr. Garon.

[Jean-Denis Garon, Bloc, Mirabel, QC]

Would it be possible to provide committee members with a paper copy of all the amendments received thus far, with the page numbers? That would make our job easier and ultimately save time.

[The Chair, Conservative, Kelly McCauley]

Paper versions are on the way, but I do not have them right now, so there's just what was emailed out at 2:53 p.m.

Go ahead, Ms. Kusie.

[Stephanie Kusie, Conservative, Calgary Midnapore, AB]

Is the government proposing another definition of “political interference”, or standing in opposition out of concern for this?

[Greg Fergus, Liberal, Hull—Aylmer, QC]

The definition we'd like to use is the one that's in the Conflict of Interest Act, which already exists. It's well referred to, and it's one that stands the test of time.

[Stephanie Kusie, Conservative, Calgary Midnapore, AB]

That's not located within the new amendments that just arrived from you, I believe, because they start in clause 4.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

The amendment has a reference number at the very top, which ends with the numbers 471.

[Stephanie Kusie, Conservative, Calgary Midnapore, AB]

Okay. I see that.

[The Chair, Conservative, Kelly McCauley]

Colleagues, are we ready to vote, or do you wish to wait a few minutes to read?

Go ahead, Ms. Kusie.

[Stephanie Kusie, Conservative, Calgary Midnapore, AB]

I'd like to know why the Bloc Québécois decided to put forward amendments when the sponsor of the bill is a Bloc Québécois member. Usually, the sponsor's version of the bill covers all the main elements. Why did the Bloc decide to put forward these amendments? Did it have to do with what the witnesses told the committee?

[The Chair, Conservative, Kelly McCauley]

I'm sorry. Before you answer, colleagues, I'm going to interrupt.

I realize there's been a lot of paper dropped at the last second, unfortunately, and we're just getting it now, but to ensure smooth sailing, if there are no other speakers, I will call a vote.

Don't take it as me pushing you, but so that we have clarity, I will do that. If you wish to speak to that, please raise your hand.

Go ahead, Mr. Garon.

[Jean-Denis Garon, Bloc, Mirabel, QC]

Thank you, Mr. Chair.

Throughout the process, we underscored the importance of hearing from witnesses. Most of the expertise in the area of whistle-blower protection was developed abroad, by legal experts and various groups, for the purpose of adopting a better whistle-blower protection regime. Given how behind Canada is when it comes to protecting whistle-blowers, we firmly believed it was important for the committee to meet with experts and hear their recommendations.

It was obvious to us that we should leverage that expertise, and it is possible to incorporate witness recommendations into a private member's bill. Bill C‑290 captures the main elements of a stronger regime, but if the committee were to adopt certain amendments, including those put forward by the Bloc, it would do two things. First, Canada would no longer be a laughingstock internationally when it comes to whistle-blower protection, and second, Canada's regime would satisfy seven or eight of the 20 criteria that characterize a strong whistle-blower protection regime.

When witnesses appear before the committee, we need to listen to what they have to say, examine their recommendations, incorporate them into the bill, and of course, negotiate. I've had many a conversation with Mr. Fergus and others.

As for this specific amendment, it was important to us and to the witnesses to follow in the footsteps of other jurisdictions and establish a clear definition of political interference. It was also obvious that the definition should be included in the act. The problem is that the Conflict of Interest Act covers only public office holders. We wanted to underscore how important it was for the whistle-blower protection regime to have consistency in the act and definition, and to apply to the entire chain of command, top to bottom. That's why we are proposing this amendment.

[The Chair, Conservative, Kelly McCauley]

Go ahead, Mr. Fergus.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

Mr. Chair, I'd like to reassure the honourable member that the idea is not to limit the application of the Public Servants Disclosure Protection Act. However, we have to base the definition on one that exists in Canadian legislation. We would rather use a well-established definition than introduce a second one.

[Jean-Denis Garon, Bloc, Mirabel, QC]

I appreciate the constructive conversations I've had with the member, but keep in mind that, when a definition is being established, it needs to apply to specific individuals or office-holders, in a specific context. That is why we consulted the experts.

I'm not saying that I'm opposed to the definition in the Conflict of Interest Act, but it was drafted to apply specifically to public office holders. That's why we came up with another definition, one that is appropriate, strict, consistent and comprehensive, without being overly broad.

Personally, I have trouble with the argument that there can't be two definitions in the thousands and thousands of pages worth of legislation, two definitions that would address two different situations and two completely different types of positions.

I still haven't read the definition we are proposing in the amendment. Political interference would mean interference in the public sector, specifically as follows:

(a) in a way that causes any political or personal interest to prevail over the public interest, including by influencing or directing a public servant (i) to apply a law not according to the intention of Parliament but according to some other interpretation preferred by the person so influencing or directing, or (ii) to exercise a discretion or a power or to refuse or fail to do so, or to take any other measure; or (b) in any other way that does not observe the distinction between political and personal interests and the public interest or the priority in the public sector of the public interest.

I'd like to hear what the member doesn't like about the definition we are proposing, without rehashing the fact that there would be two definitions for two specific situations—an argument I find hard to swallow.

[The Chair, Conservative, Kelly McCauley]

Go ahead, Mr. Fergus.