Public Accounts Committee on Dec. 14th, 2010

[Joe Friday]

I joined the Office of the Public Sector Integrity Commissioner in February of 2008. I was and am on a secondment from the Department of Justice, where my substantive position is the general counsel of the alternative dispute resolution section. I've been with the Department of Justice for 18 years and was with the private sector before that.

[Jean-Claude D'Amours, Liberal, Madawaska—Restigouche, NB]

Perfect. Thank you.

Mr. Friday, to your knowledge, since you came on the job in February 2008, has the Office of the Public Sector Integrity Commissioner sent any information or progress reports to the Privy Council Office, to the Prime Minister's Office, to the Treasury Board President or to any other individual who may be in...? To your knowledge, have any progress reports been provided with respect to the way the office worked?

[Joe Friday]

Mr. Chair, I don't have any information in that regard. When I joined the Office of the Public Sector Integrity Commissioner, it had been in operation for almost a year at that time. With respect to its evolution or any central agency involvement in that evolution or direction, I don't have any information.

[Jean-Claude D'Amours, Liberal, Madawaska—Restigouche, NB]

Are you telling me, Mr. Friday, that everything was done internally and that there was no communication with the government, the Prime Minister's Office or the Privy Council Office to explain the work done within the commissioner's office?

[Joe Friday]

I'm not aware of any formal avenues for the sharing of information about the day-to-day operations of an agent of Parliament with central agencies.

[Jean-Claude D'Amours, Liberal, Madawaska—Restigouche, NB]

That is, however, the impression I have. Ms. Fraser, do you not feel that it seems that this was set up with an objective in mind, but that, in the final analysis, no one was really looking after what was going on?

[Sheila Fraser]

The commissioner's office would have produced, like all of us, a report on plans and priorities, as well as performance report every year. However, all officers of Parliament are fiercely protective of their independence and are very resistant to reporting to the government on their activities. We may disclose some information on our website or we may provide some general information, but when central agencies request detailed information from us, by sending out a request to all departments and agencies, we respond that we do not provide that information because we are not accountable to a central agency.

[Jean-Claude D'Amours, Liberal, Madawaska—Restigouche, NB]

Mr. Friday, you said that there are currently 15 investigations under way in various sectors of the federal public administration. If no guidelines or criteria are established—and let us be clear, there have not been any for three years, there are only drafts—could you provide us with a clear and accurate answer as to how a government official or a member of the Canadian public can hope, today, that their file will be assessed properly?

This is quite unbelievable. We are telling people to turn to the integrity commissioner's office and not to worry, that their files will be assessed, but we do not know the rules. We do not know the rules because they have not been fully developed yet. We have to decide what those rules will be, but somehow or other, it has not been done. That is quite an extraordinary situation.

[Joe Friday]

Mr. Chair, we do have, and have had from early in our existence, legal opinions with respect to the interpretation of particular aspects of the act. We had a draft procedural guide that was produced immediately upon the coming into force of the act. We are working to supplement that with a more practical guide that will involve and reflect our experience with particular cases. We do have case standards and document management standards--

[Jean-Claude D'Amours, Liberal, Madawaska—Restigouche, NB]

Mr. Chair, I would like Mr. Friday to provide us with the guidelines, the draft, and all the documents that he has just mentioned. I would like them to be produced for the committee so that we can examine exactly what is entailed, because it is very ambiguous.

[The Chair, Liberal, Joe Volpe]

Thank you.

We'll go to Mr. Young.

[Terence Young, Conservative, Oakville, ON]

Thank you, Chair.

My question is for Madam Fraser on the process.

Welcome again.

I'm looking back to May 16, 2006, when the government operations committee was reviewing the potential appointment of Gwyn Morgan as public appointments chair. A member of that committee summarized the process for appointing independent agents of Parliament, which this commissioner was. It was described as:

...a very rigorous process, and that it involves examination, transparency, and meritocracy.

Further, and again I'm quoting:

...there is a very broad consultation process that's followed by an examination of qualifications, examination of security and criminal investigation, and then another process, called a peer review process, that's arm's-length from any minister, before anything gets presented up to the minister, and indeed before it goes up to the Prime Minister.

The person who made those comments at that committee was our current chair, Mr. Volpe. So it's not a partisan issue, and I think it's a disservice to try to make this into a partisan issue.

For the record, it is not the government that appointed this commissioner. The commissioner is appointed by Parliament, and I think it's important to go through the history.

[The Chair, Liberal, Joe Volpe]

Mr. Young, you're not directing that to me; you're directing that to Madam Fraser. That was a reflection on what happened prior to 2006, and I think we're here to discuss Madam Fraser's report from 2007 on.

[Terence Young, Conservative, Oakville, ON]

Thank you for the clarification, Mr. Chair. This is important background to my question.

Madame Ouimet had been working in the Public Service of Canada for 28 years. Her appointment was considered by the government operations committee and was passed unanimously. Her nomination was considered by the Senate on June 19, 2007. The Senate agreed to her appointment on that day unanimously. Madame Ouimet was appointed as the Public Sector Integrity Commissioner on August 6, 2007, for seven years. She was appointed by the Governor in Council, after consultation with the leader of every recognized party in the Senate and House of Commons. The approval of the appointment was by resolution of the House of Commons and the Senate, all unanimously.

I think the big question for us today is a variation of one you've already tried to address. How does someone who has such an excellent résumé and by all appearances will make an excellent commissioner get into such difficulties?

You commented previously, Madam Fraser, and I want to ask you, in addition to the process, is it possible that this is just too much power in one position? Is that part of the problem?

Could you also please comment on the 360-degree process that might help vet someone in such a powerful position?

[Sheila Fraser]

As I mentioned, we did not look at the appointment process, and we obviously don't get into motivations. That's something that only the individual can address. The committee may wish to ask if the rigorous process that Mr. Young outlined was respected and followed in this case. I would hope that somebody would go back to look at that to see if anything more could have been done that would have detected something.

The 360-degree process is one whereby we ask employees to assess their managers. It is becoming more and more common in human resource management. We do it on a fairly regular basis—every year, as part of the whole evaluation process. Any employee can go to their supervisor's supervisor, or any other person in the office if they wish, to address this. There are tools that we use so people can respond anonymously about their supervisor. The evaluation is given to the individual's supervisor in our human resource department.

It is all about trying to improve human resource management to detect where there may be problems. Certainly in this case there were indications of issues. When you see a 50% turnover rate--or 18 people out of 22 in a year leave--that is clearly an indication.... I think that's one of the things we'll have to look at.

We've put information into our departmental performance report on the turnover, employee surveys, and the kinds of results. Those are all available.

[Terence Young, Conservative, Oakville, ON]

That could be a red flag.

[Sheila Fraser]

That is the kind of information that officers of Parliament could all provide to help demonstrate our management.

[Terence Young, Conservative, Oakville, ON]

Thank you.

My second question is somewhat different and is on the process. I'm wondering what due process there was in the investigation your officials conducted. I'm not suggesting that anyone didn't do as they were directed by the legislation, but I'm somewhat uncomfortable with it.

What due process is there for a person being investigated? For example, do they have a right to counsel? Can their counsel get involved, ask questions, and represent them in this process? What are the rules of evidence in this process? What rules are there to prevent any potential conflicts of interest from the people doing the audit and the people being audited?

I'm very uncomfortable with someone going through a process like this without being able to speak or be heard, as they can in court.

[Sheila Fraser]

You can appreciate, given the sensitivity of this file, that we follow a very rigorous process in cases like this. We engaged our own outside legal counsel to advise us on fairness of procedure. We advised Madame Ouimet that she could have legal counsel, which she did. Through all of the interviews there were legal representations on both sides. Many of the discussions were actually between lawyers.

When we conducted the interviews there was a court stenographer. We provided Madame Ouimet with all of the documentation on which we wished to ask questions, including transcripts of interviews. It was done very rigorously. There were delays. We tried to do interviews earlier. She asked for more time and we agreed to that. It was conducted, in many respects, as if this were a legal proceeding.

[Terence Young, Conservative, Oakville, ON]

Do I have more time?

[The Chair, Liberal, Joe Volpe]

No, actually, you're two minutes over.

But on that point, on the question of procedure, Mr. Friday, you were general counsel throughout all of this process. Is your background in criminal law? I think I heard you say that it was dispute settlement.

[Joe Friday]

Mr. Chair, I have experience in civil litigation in the aboriginal law field, in the alternative dispute resolution law field.

[The Chair, Liberal, Joe Volpe]

So in the commission, what standards did you use for the investigation? Was it the civil law balance of probabilities or the criminal law proof beyond a reasonable doubt standard?

[Joe Friday]

We are an administrative investigation body. We do not use a criminal law standard.

The purpose of an investigation under our legislation is to report on founded cases of wrongdoing and make recommendations for corrective action.

In cases of reprisal, we do not have the power to even make a finding of reprisal. We have the authority to make an application to a tribunal that is composed of Federal Court judges who have adjudicative power and can make remedial and disciplinary orders.

The standard at that level would be different from the standard in an administrative investigation, I would suppose.

[The Chair, Liberal, Joe Volpe]

When you found evidence of wrongdoing that might have contravened the Criminal Code, what would your process have been?