Government Operations Committee on June 12th, 2023

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

It's the same argument. I'm hoping that people will see the light.

[The Chair, Conservative, Kelly McCauley]

Shall clause 16 carry?

We have a tie. I'll vote yes again.

(Clause 16 agreed to: yeas 6; nays 5)

(On clause 17)

We have an amendment. It's NDP-10. It is on page 28 of the package.

[Gord Johns, NDP, Courtenay—Alberni, BC]

Mr. Chair, I will withdraw NDP-10, if I could, at the will of the committee.

[The Chair, Conservative, Kelly McCauley]

You don't have to withdraw it if you haven't moved it. We'll just skip right over that and go straight to clause 17.

Mr. Fergus.

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

I'd like to thank my colleague for withdrawing NPD-10.

For the clause overall, Mr. Chair, it's not clear how this is useful.

I would like Mrs. Vignola to explain to us why she thinks that would be useful.

The public interest should always be taken into account, especially when we assume that senior management has not co-operated to help whistleblowers. I believe the Commissioner already takes that into consideration when they determine whether or not the case should be referred to the tribunal. The proposed section would remove the obligation to consider the public interest and would prevent us from seeing whether senior management took all of this into consideration.

I'd now like the expert witnesses who are here to tell us what they think of this clause of the bill.

[Mary Anne Stevens]

Thank you for the question.

That section of the bill would remove two criteria that the PSIC is supposed to consider before referring to the tribunal, one being the public interest and the other being whether or not either the chief executive or public servants have co-operated in the investigation. I would draw your attention to the submission from the Public Sector Integrity Commissioner, who has said that if you remove the provision that says he can consider whether or not a chief executive or public servants have co-operated, it would allow departments to simply postpone and postpone. He would never be able to get the complaint to the tribunal.

We think that is an important factor to consider.

[The Chair, Conservative, Kelly McCauley]

Do you have something to add, Ms. Vignola?

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

Just give me a second, I'm trying to digest what was said.

[The Chair, Conservative, Kelly McCauley]

Go ahead.

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

Just like all the other sections, we drafted this one with the public servant in mind. Just because an entity co-operates with an investigation doesn't mean it's completely without blame. We see this with couples too: The man or woman co-operates with the investigation, but at the end of the day, they have serious mistakes on their hands.

I understand that if we remove this clause, the objective is to protect the machine, that is to say the government. However, by leaving it in, we're ensuring that the public servant is protected, and that's the most important thing. At the end of the day, when we protect whistleblowers, we protect the entire machine, because we point out issues encountered in the machinery of government and we organize ourselves to improve things. That's the goal. I don't see how any government, regardless of its political stripes, could be against that. When we find a problem and solve it, it's to the government's advantage and, quite simply, it's to the taxpayer's advantage.

I'm opposed to eliminating this part, which is important to us, because it's about protecting the public servant.

If it's the will of the committee, we can go to a vote. I can't make any clearer arguments than those I've just made.

[The Chair, Conservative, Kelly McCauley]

Shall clause 17 carry?

We have a tie. I'll vote yes.

(Clause 17 agreed to: yeas 6; nays 5)

(On clause 18)

Go ahead, Mr. Fergus.

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

Again, I will try to make the last argument before we get to the consequential clause, but I really do think that we are complicating a situation that will not end up being.... In the short term, it certainly wouldn't be helpful to the complainant, and, in the long term, it won't be helpful to either the complainant or to the purposes of this bill.

[The Chair, Conservative, Kelly McCauley]

Shall clause 18 carry?

We have a tie. I'll vote yes.

(Clause 18 agreed to: yeas 6; nays 5)

(On clause 19)

We have an amendment to this clause, NDP-11.

Mr. Johns, go ahead.

[Gord Johns, NDP, Courtenay—Alberni, BC]

I'd like to move this. It doesn't require any additional funds. It allows the whistle-blowers direct access to the tribunal without any prior determination by the commissioner. Before approaching the tribunal, the whistle-blower is required to wait for an indefinite period until the commissioner investigates the complaint of a reprisal and renders a decision while the whistle-blower continues to suffer reprisal. With this amendment, the whistle-blower could immediately approach the tribunal upon experiencing reprisals, which would reduce the delay before justice is done and reduce the harm done in the meantime.

[The Chair, Conservative, Kelly McCauley]

Thanks, Mr. Johns.

Ms. Vignola, is there a translation issue?

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

There was no interpretation because the sound wasn't good enough.

[The Chair, Conservative, Kelly McCauley]

I'm not getting translation now. There we go.

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

There was no interpretation during Mr. Johns' speech, because the sound wasn't good enough.

[The Chair, Conservative, Kelly McCauley]

Thanks.

Mr. Johns, we could not get interpretation. I guess you were breaking up. Could you please repeat that, maybe just a tiny bit slower?

[Gord Johns, NDP, Courtenay—Alberni, BC]

I will do that. Maybe I had the mike too low.

Basically, on NDP-11, there are no additional funds required. It allows whistle-blowers direct access to the tribunal without any prior determination by the commissioner.

Before approaching the tribunal, the whistle-blower is required to wait for an indefinite period, while continuing to suffer reprisals, until the commissioner investigates the complaint of reprisal and renders a decision. With this amendment, the whistle-blower could immediately approach the tribunal upon experiencing reprisals.

This would reduce the delay before justice is done and reduce the harm done in the meantime. I just want to point out that throughout the expert testimony this was a best practice, and it has not resulted in sudden jumps in the number of cases in any jurisdictions where it's been adopted.

[The Chair, Conservative, Kelly McCauley]

Thanks, Mr. Johns.

I have Mr. Fergus.

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

I think that for the exact same reasons Mr. Johns has pointed out, they're reasons why I would not recommend the passage. This is really the key clause, the key article here. What this will do—Mr. Johns made it very clear—is that they're not going to wait for even the PSIC determination, which has a lower standard and which is more accessible to the complainant, and will go straight to the tribunal, which has a higher standard. It requires a higher cost not only for the complainant, but also for those who are being accused of doing the wrongdoing and would benefit from support to defend themselves, which of course would mean higher costs.

Anyhow, that's my view on this. Again, I would love to ask our officials if they could please comment on the implications of carrying clause 19.

[Mireille Laroche]

Thank you very much for the question.

As was mentioned earlier, this is really the clause that binds all the others together. Basically, it ends up changing the role of the Commissioner, in the sense that individuals will no longer have to go through this process and will be able to appeal directly to the tribunal. As a result, when there are reprisals, the Commissioner's role won't be as strong. They will not be able to make a decision in those circumstances.

That's the main consideration, in addition to the ones mentioned by Mr. Fergus, that the legal criteria are higher for the tribunal than for the Commissioner.

I don't know if Ms. Stevens wants to add anything.

[The Chair, Conservative, Kelly McCauley]

Mr. Johns, do you wish to address this?

We'll go to Mr. Johns and then Mr. Kusmierczyk.

[Gord Johns, NDP, Courtenay—Alberni, BC]

Maybe the experts could give us some feedback. Would this amendment not make the tribunal more accessible to the complainant?